text:
    Erwin PAGE, Jr. v. STATE of Mississippi.
    No. 51101.
    Supreme Court of Mississippi.
    April 18, 1979.

      Jones & Shields, Granville Jones, Meridian, for appellant.
    A. F. Summer, Atty. Gen. by Phillip H. Schwartz, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, BROOM and BOWLING, JJ.
   BOWLING, Justice, for the Court:

Appellant, Erwin Page, Jr., was indicted, tried and convicted for the crime of armed robbery in the Circuit Court of Lauderdale County. The jury returned a verdict of guilty and fixed the penalty at life imprisonment.

Appellant advances the following assignments of error, namely:

1. The appellant did not receive a fair trial by a jury of his peers in that there was only one black person on the jury panel presented to the parties.

2. The lower court erroneously refused appellant’s submitted instruction D-8.

3. Appellant’s Fifth Amendment rights were violated.

4. The lower court erroneously permitted evidence regarding a crime other than a charge of armed robbery.

The principal witness as to the facts of the occurrence leading to appellant’s indictment was Kermit Rascoe, an employee of Barrett-Nunnery Hardware Company in Meridian, Mississippi for twenty-six years. Rascoe testified that on January 12, 1978, he had closed the store at approximately 5:30 P.M., shortly after which he heard a knock on the door. He opened the door a couple of inches and saw appellant standing there and appellant told him he wanted to come in and discuss the matter of an old garnishment with which appellant had been involved while an employee at the store. Appellant had worked at the store about one year but had not worked there for approximately eight months prior to the time of the incident in question. Rascoe told appellant that the store was closed and if he would come back another time he would be glad to discuss the matter with him. Appellant thereupon forced the door open and Rascoe saw a butcher knife in one of his hands and a pistol in the other. Appellant was not disguised and there is no question about his identity by Rascoe.

Appellant demanded that Rascoe give him money. As' the store had closed, it was necessary to open the vault to secure any money. Rascoe was forced to do this while appellant was prodding him with the knife. After opéning the vault they went inside where Rascoe secured something over $175 in cash and advised appellant that this was the only money there. Appellant then demanded Rascoe’s personal money, and this was given to him. While they were in the vault and after no other money was found, Rascoe, with his back toward appellant, felt a blow to his back and upon looking around saw the handle of the knife protruding from his back. Appellant then pulled the knife from Rascoe’s back and stabbed him in the back two more times. He then told Rascoe to turn around and look him in the eye and raised the gun. Rascoe pleaded with appellant, advising him that he would receive lighter treatment for armed robbery than for murder and was advised by appellant that he could not afford to let him live as he would have him in jail the following day. Appellant thereupon pulled the trigger and shot Rascoe in the chest, after which he left the vault and closed and locked the door. After much difficulty for about one and one-half hours, Rascoe was able to open the door and called the police and an ambulance. Fortunately, he lived.

Testimony was given by several members of the Meridian Police Department. After going to the scene and being told by Rascoe who the assailant was, they secured a warrant and went to appellant’s home. They found him hidden in a closet and also found several items that had been taken from the store’s vault. It is undisputed that appellant was given his full Miranda warnings. He was then asked where the gun was that was used in the robbery, but he did not answer immediately. A few minutes later, he directed the officers to the closet where the gun was found. The officers, according to the undisputed proof, were only in the residence a few minutes. Upon reaching the police station, appellant undisputedly again was given his Miranda warnings before being interrogated further.

At the beginning of the trial appellant’s attorney dictated a motion requesting that appellant’s plea of not guilty be changed to not guilty by reason of insanity. This motion was allowed and the trial was recessed for the purpose of having appellant examined by two mental health experts, Dr. Antonio Rubio, a psychiatrist, and Dr. Tom Elliott, a clinical psychologist. The reputation and ability of these experts was not challenged. The appellant offered the testimony of both expert witnesses during his defense presentation. Dr. Elliott went into detail as to his examination of appellant and his testimony as the result of his examination was that he found no evidence whatsoever of any kind of psychosis or any evidence of brain damage. He found no evidence of organic damage. His opinion was that appellant would not have been psychotic at the time of the alleged crime; that he intended to rob and so admitted. The doctor concluded that at the time of the alleged crime appellant could distinguish right from wrong and could appreciate the natural consequences of his acts.

Dr. Rubio, whose testimony was also offered by appellant, stated that as a result of his examination he found no type of mental retardation or any type of psychosis.

ASSIGNMENT NO. 1.

Appellant makes no contention that there was a systematic exclusion of blacks from juries in Lauderdale County. He relied on the case of Ellzey v. Breazeale, 277 F.Supp. 948 (S.D.Miss.1967). It is clear that the opinion has no relevance to appellant’s contention here, which was that there simply happened to be only one non-white on the jury that heard his case. It cannot be assumed that for that reason the officials of Lauderdale County engaged in discriminatory practices by systematically excluding blacks from juries, as was the burden placed on appellant to establish. Kennard v. State, 242 Miss. 691, 128 So.2d 572 (1961); Raiford v. Dillion, 297 F.Supp. 1307 (S.D. Miss.1969).

Appellant here in no way meets the burden established by the United States Supreme Court in Patton v. State, 332 U.S. 463, 68 S.Ct. 184, 92 L.Ed. 76 (1947). There the Court said:

When a jury selection plan, whatever it is, operates in such a way as always to result in the complete and long continued exclusion of any representative at all from a large group of Negroes, or any other racial group, indictments and verdicts returned against them by juries thus selected cannot stand.

As hereinbefore stated, appellant made no effort whatever to show the existence of any practice of omission of blacks from jury service in Lauderdale County. There was no evidence whatever presented as to discrimination against blacks in the selection or constitution of the jury list. There is no merit to this assignment of error.

ASSIGNMENT NO. 2.

Appellant’s requested instruction D-8 reads as follows:

The Court instructs the jury that if you find that the State has proved beyond a reasonable doubt all the essential elements of robbery, then you must find the defendant guilty of robbery, unless the State has failed to prove beyond a reasonable doubt that the defendant was sane at the time of the commission of the offense you find to have been committed. In order to prove the defendant sane at the time of the commission of alleged robbery, the State must prove beyond a reasonable doubt that at the time of the commission of alleged robbery the defendant had the mental capacity to realize and appreciate the nature and quality of his act and to distinguish between right and wrong with reference to the act he committed.
If after considering all of the evidence in this case you find the State has failed to prove beyond a reasonable doubt that the defendant was sane at the time of the commission of alleged robbery, then your verdict must be not guilty by reason of insanity.

There is absolutely no evidence of any kind in the record or presented to the jury that in any way contended the appellant to be mentally incompetent, or to have not know the difference between right and wrong at the time of the alleged offense, or not be able to assist his attorneys in his defense. Appellant predicates his argument on the case of Gambrell v. State, 238 Miss. 892, 120 So.2d 758 (1960) which said the following:

In 1879, this Court in the case of Cunningham v. State, 56 Miss. 269, stated the following: “We think the true rule is this: Every man is presumed to be sane, and, in the absence of testimony engendering a reasonable doubt of sanity, no evidence on the subject need be offered; but whenever the question of sanity is raised and put in issue by such facts, proven on either side, as engender such doubt, it devolves upon the State to remove it, and to establish the sanity of the prisoner to the satisfaction of the jury, beyond all reasonable doubt arising out of all the evidence in the case.”

Not only was there no evidence of mental incompetency of appellant but appellant’s own witnesses, Drs. Rubio and Elliott, testified positively that appellant had no mental retardation, had no psychosis, and at all times, including the day of the robbery, knew the difference between right and wrong and was fully capable of assisting in his defense. There was nothing for the State to rebut and absolutely no evidence that would require the State to prove appellant sane, there being no evidence of possible insanity. This assignment is without any merit.

ASSIGNMENT NO. 3.

As hereinbefore stated, appellant undisputedly was read his Miranda rights before any interrogation after he was found in the closet at his residence. This assignment of error is predicated only on the evidence that when appellant was first asked about the gun, he made the remark, “What gun?” and did not immediately give the location of the gun. Within a very short time thereafter he did change his mind and stated that the gun was in the closet. It appears that there was not even sufficient time to get a second Miranda warning before asking about the gun a second time. Certainly no case has ever held that the warnings should be given a second time before asking a second question. It is undisputed that the officers were at the home only from five to ten minutes before leaving for the police station with appellant. At no time did appellant request that interrogation be stopped. As hereinbefore stated, it is undisputed that he was given a second warning after arriving there and before any further interrogation. There is no merit in this assignment.

ASSIGNMENT NO. 4.

Appellant complains that it was error to permit evidence that Rascoe was stabbed by the knife three times and shot through the chest during the course of the armed robbery, contending that this was evidence of an entirely different crime from that for which he was indicted.

In the first place, there was no objection to this testimony at the time it was injected into the record and for that reason, if for no other, it would be incompetent to raise here. Williamson v. State, 330 So.2d 272 (Miss. 1976); Mississippi Supreme Court Rule 42.

In the second place, the statute under which appellant was indicted (Mississippi Code Annotated section 97-3-79 [Supp. 1978]) defines “armed robbery” as follows:

Every person who shall feloniously take or attempt to take from the person or from the presence the personal property of another and against his will by violence to his person or by putting such person in fear of immediate injury to his person by the exhibition of a deadly weapon shall be guilty of robbery and, upon conviction, shall be imprisoned for life in the state penitentiary if the penalty is so fixed by the jury; and in cases where the jury fails to fix the penalty at imprisonment for life in the state penitentiary the court shall fix the penalty at imprisonment in the state penitentiary for any term not less than three (3) years.

It is readily apparent that the exhibition of a deadly weapon is a key element of the crime of armed robbery and a description of the crime certainly could not be made adequately without describing the weapons used and what was done with those weapons.

Furthermore, it is clear from the prior opinions of this Court that where evidence of another crime forms part of the same transaction of which the crime charged is constituted and is so intimately connected therewith that one cannot be proved without some proof of the other, the evidence is admissible. Brooks v. State, 242 So.2d 865 (Miss.1971). There is no merit in this assignment of error.

The jury had ample and overwhelming evidence to find appellant guilty of the crime of armed robbery and clearly had the authority under Code section 97-3-79 to fix appellant’s penalty g,t life imprisonment.

AFFIRMED.

PATTERSON, C. J., SMITH and ROBERTSON, P. JJ., and SUGG, WALKER, BROOM, LEE and COFER, JJ., concur.


source: Caselaw Access Project

author: LEE, Justice, for the Court:

license: Public Domain

text:
    Mrs. Mary CRUSE v. AETNA LIFE INSURANCE COMPANY.
    No. 51070.
    Supreme Court of Mississippi.
    April 18, 1979.
    Omar D. Craig, Oxford, William K. Duke, Pontotoc, for appellant.
    Mitchell, Rogers, Eskridge, Voge & Clayton, Jeremy J. Eskridge, Tupelo, for appel-lee.
    Before ROBERTSON, WALKER and LEE, JJ.
   LEE, Justice, for the Court:

Mrs. Mary Cruse filed suit in the Circuit Court of Pontotoc County against Aetna Life Insurance Company seeking the proceeds of two (2) group life insurance policies [five thousand dollars ($5,000) each] issued on the life of her deceased grandson, John David Sewell. The causes were consolidated, the facts were stipulated, and the cases were tried before Circuit Judge Fred Wicker without a jury. The trial judge held that John David Sewell was not covered under the policies and entered judgments for Aet-na Life Insurance Company, from which Mrs. Cruse appeals.

John David Sewell, now deceased, began working for Deville Furniture Company (Deville) in Pontotoc, Mississippi, October 11, 1976. On that date, two group policies of insurance between Aetna Life Insurance Company and Deville were in full force and effect. Under the terms of same, any new non-supervisory employees of Deville became eligible for coverage thereunder on the date they completed two months of continuous service.

Sewell worked continuously for Deville from the date of his employment on October 11, through December 9, 1976 (Thursday) at 12:00 noon when he and all the other Deville employees in his department were laid off due to lack of materials. De-ville expected the layoff to be temporary and for work to resume on December 13, the following Monday, and knew of no reason why Sewell would not be allowed to retuyi to work on that date.

Around midnight on December 9, 1976, Sewell left the Pontotoc area in a van owned by a corporation other than Deville. He was not in the course and scope of his employment and proceeded to some point on 1 — 55 near Durant, Mississippi where an accident occurred around 5:30 a. m. resulting in his death.

Mrs. Mary Cruse was named beneficiary in the application for insurance filled out by Sewell on October 11, 1976. As such, she made proper claim for benefits but was denied the same by Aetna on the basis that Sewell had not completed two (2) months of continuous service with Deville and, therefore, was not covered by either of the policies. The cases were submitted to the trial judge on the pleadings and stipulations of facts entered into between the parties. The judge ruled that, although Sewell had lived until the date marking the end of two months time (December 10, he had not completed the day’s work. He entered judgment for the defendant without considering the effect of the layoff on the requirement that service be continuous for a period of two months.

Appellant assigns five (5) errors committed by the trial judge, but the questions for decision relate to completion of continuous service, completion of work on the date of death, effect of Sewell’s temporary layoff on December 9, and provisions of the policies that, if Sewell was away from work and disabled, the policies would be ineffective.

I.

To what date does the phrase, “on the date on which he completes two months of continuous service” refer?

In Hattiesburg Grocery Company v. Tompkins, 111 Miss. 592, 71 So. 866 (1916), the Court discussed the seven-year statute of limitations involving a judgment. The defense argued the suit was barred because the statute had run. It was held that, following the principle of liberality, the day on which the judgment was rendered should be excluded in computing the seven-year period and that the word “next” in the statute emphasized that the first day of the period should be excluded. The cases of Rayl v. Thurman, 156 Miss. 1, 123 So. 853 (1929) and Williams Bros. v. Bank of Blue Mountain, 132 Miss. 178, 95 So. 843 (1923) state similar discussions and factual situations.

The policies in question do not contain phrases appearing in the limitation statutes such as “next after,” are not governed by them, and the present case is distinguished from those cases. There is no valid reason why the period should not commence on Sewell’s first workday, October 11, 1976.

In Provident L. & A. Ins. Co. v. Jemison, 153 Miss. 53, 120 So. 180 (1929), the policy was effective fifteen (15) days from and after date. It was dated June 18,1927, and on July 3, 1927, the insured developed an illness in the nature of rheumatism, which he first felt around 9 a. m. The Court held that, in the absence of statute or specific contract provisions to the contrary, the law does not take cognizance of a fraction of a day. Consequently, the day of the policy was counted as a part of the fifteen days and such period expired before July 3.

Under the Jemison rule, the two-month waiting period here was completed on December 10, 1976. We are of the opinion that such period effectively complied with that provision of the policy.

II.

Was Sewell required to complete work on December 10,1976, before the policy became effective as to him?

Appellee contends that, if December 10, 1976, is the date beyond or at the end of the two-month period, still, Sewell was required to complete his workday on December 10 before he was covered. Appellant takes the position that Sewell did not have to survive the entire day and that any fraction of December 10 was sufficient to invoke coverage.

The trial court decided that the two-month period was encompassed in the dates from October 11, 1976, to and including December 10, 1976, but that Sewell, to be covered, had to work or survive until 12:00 p. m. on that date. However, if December 10 had fallen on a holiday or Sunday, when it is assumed that the plant was not operating, certainly such day would have been included in the two-month period.

Insurance contracts are construed strictly against the company which writes the policy and in favor of the insured. The provision “on the date on which he completes two months continuous service” does not specifically state that Sewell must have completed the last day, either by work or survival. We hold that the fraction of a day sufficed to cover the continuous service provision. See Provident L. & A. v. Jemi-son, supra. Had the insurance company specified the two-month period concluded at 12 p. m. on the last day, that provision would govern.

We are of the opinion that, although Se-well died at 5:30 a. m. on December 10, he fulfilled the eligibility requirements of the policy.

III.

What effect, if any, did Sewell’s layoff on December 9 have on coverage?

As stated above, Sewell worked the 7:00 a. m. to 3:30 p. m. shift at Deville and, on December 9, which was Thursday, he and the other employees working in the upholstery department were released at noon for lack of materials. It was not uncommon for such an incident to occur and, when shortages arose, employees in the department were laid off without pay until the line resumed production. The upholstery line was to be reactivated on December 13, the following Monday, and Sewell was expected to return to the job that day. The contracts contain the following provisions:

“Article III — TERMINATION OF INSURANCE
Section 1. Employee and Dependent Coverage
All insurance of any employee under this policy shall terminate at the earliest time specified below:
(1) Upon discontinuance of the policy.
(2) Immediately when the employees’ employment with a Participant Employer in the classes of employees eligible for insurance terminates. Cessation of active work by an employee shall be deemed to be termination of his employment, except that
(a) in the case of an absence from active work because of sickness or injury, his employment may, for the purposes of insurance under this policy, be deemed to continue until terminated by his Participant Employer but in no case beyond twelve months from the date such absence from active work started, or
(b) in the case of absence of an employee from active work because of temporary lay-off or leave of absence, his employment may, for the purposes of insurance under this policy, be deemed to continue until terminated by his Participant Employer but in no case beyond the end of the policy month following the policy month in which such lay-off or leave of absence commenced. In the ease of any of the exceptions in the foregoing paragraph, the insurance under this policy for such employee shall automatically cease on the date of such termination of his employment by his Participant Employer, as evidenced to the Insurance Company by the Policyholder, whether by notification or by cessation of premium payment on account of such employee’s insurance hereunder. Any maximum period of continuation permitted by the foregoing paragraph may be extended by written mutual agreement between the Policyholder and the Insurance Company in each individual case.
In no event may any insurance provided on a contributory basis be continued beyond the end of the period for which the employee has made to his Participant Employer the contributions required.” (Emphasis added).

The temporary layoff did not interrupt the two-month period for eligibility under the policy.

We have considered the fourth assignment of error and have determined it to be without merit.

For the reasons stated, the judgment of the trial court is reversed and judgment is rendered here in favor of appellant.

REVERSED AND RENDERED.

PATTERSON, C. J., SMITH and ROBERTSON, P. JJ., and SUGG, WALKER, BROOM, BOWLING and COFER, JJ., concur.


text:
    Joe K. ROBBINS, Jr. v. MISSISSIPPI STATE HIGHWAY COMMISSION.
    No. 51119.
    Supreme Court of Mississippi.
    April 18, 1979.

      Darden, Sumners, Carter & Trout, Thomas R. Trout, New Albany, for appellant.
    A. F. Summer, Atty. Gen. by Frank E. Shanahan, Jr., Asst. Atty. Gen., Jackson, for appellee.
    Before ROBERTSON, WALKER and LEE, JJ.
   LEE, Justice, for the Court:

Joe K. Robbins, Jr. applied to the Mississippi State Highway Commission for a permit to erect an outdoor advertising sign, which application was denied. Thereafter, Robbins filed a bill of complaint in the Chancery Court of Union County seeking a mandatory injunction requiring the Mississippi State Highway Commission to grant the permit. The chancellor entered a final decree denying the injunction and dismissing the bill of complaint and Robbins has appealed here.

In 1965, the United States Congress enacted the Highway Beautification Act of 1965, being 23 U.S.C. § 131. The act set forth certain minimum standards for the control of outdoor advertising adjacent to highways on the interstate system and the Federal Aid Primary System, and administrative control thereof was placed in the United States Secretary of Commerce (now U. S. Secretary of the Department of Transportation). To enlist the aid of the several states to enforce at least the minimum national standards contained in the act, the Federal statute provided that the secretary has the authority, from and after January 1, 1968, to reduce by ten percent (10%) any federal aid highway funds, which otherwise would have been apportioned, to a state that has not entered into an agreement with the Secretary for enforcing the minimum national standards. The constitutionality of the act was upheld in State of South Dakota v. Volpe, 353 F.Supp. 335 (D.C.S.D.1973) and State of Vermont v. Brinegar, 379 F.Supp. 606 (D.C.Vt.1974).

The Mississippi Legislature enacted, effective June 15, 1966, the Mississippi Outdoor Advertising Act, which now appears as Mississippi Code Annotated Sections 49-23-1 through 49-23-29 (1972) and which places administrative control of advertising adjacent to highways on the interstate system and the Federal Aid Primary System in the Mississippi State Highway Commission. The constitutionality of that act has been upheld in Mississippi State Highway Commission v. Roberts Enterprises, Inc., 304 So.2d 637 (Miss.1974), although the precise question involved here was not before the Court in that case.

On November 30, 1977, appellant filed an application for issuance of a permit for the erection of an outdoor advertising sign on his property at a site location on the north side of U. S. Highway 78 Bypass outside the municipal limits of New Albany in Union County, Mississippi. The proposed site location was adjacent to or within five hundred (500) feet of an interchange on a freeway on the Federal Aid Primary System. The application for permit was filed in compliance with the statutes, rules and regulations pertaining to the control of outdoor advertising devices proposed to be located adjacent to highway right-of-way on the interstate system, the sign was sought to be located in an unzoned commercial or industrial area, was outside municipal limits, and the application and sign met all legal requirements for approval and issuance of the permit, excepting only the requirements for location. On December 19, 1977, appellee denied appellant’s application for permit for the reason assigned that the proposed location of the sign did not meet the necessary legal requirements.

The basic question in this suit is whether Regulation H(3)(a) of the Mississippi State Highway Commission is more restrictive than is permitted by Mississippi Code Annotated Section 49-23-7 (1972).

The Mississippi legislature set forth in Mississippi Code Annotated Section 49-23-1 (1972) that it is the intention of the legislature in the Outdoor Advertising Act (Sections 49-23-1 through 49-23-29) to provide a statutory basis for regulation of outdoor advertising consistent with the public policy declared by Congress in areas adjacent to the interstate and primary highway systems.

Mississippi Code Annotated Section 49-23-7 (1972) provides the following:

“The state highway commission is hereby authorized to promulgate regulations governing the issuance of permits for the erection and maintenance of outdoor advertising coming within the exceptions contained in subsections (a), (d) and (e) of section 49-23-5, consistent with the safety and welfare of the traveling public, and as may be necessary to carry out the policy of the state declared in section 49-23-1, and consistent with the national standards promulgated by the secretary of commerce pursuant to Title 23, United States Code, provided that such regulations shall not contain any definition more restrictive than those set forth in section 49-23-3; nor shall they be more restrictive than the provisions set forth in section 49-23-9.”

The reference to Subsections (a), (d) and (e) of Section 49-23-5 deals with limitations of outdoor advertising devices and excepts from its restrictions signs, displays and devices located in unzoned commercial or industrial areas as defined in that section.

Mississippi Code Annotated Section 49-23-27 authorizes the Mississippi State Highway Commission to enter into agreements with the United States as follows:

“The state highway commission is hereby authorized to enter into agreements with the United States Secretary of Commerce as provided by Title 23, United States Code, relating to the control of outdoor advertising in areas adjacent to the interstate and primary highway systems, including the establishment of information centers at safety rest areas, and to take action in the name of the state to comply with the terms of such agreement, provided that the state highway commission shall not have power to enter into any agreement calling for more restrictive control of outdoor advertising than that provided for in sections 49-23-1 to 49-23-29.”

Acting pursuant to Sections 49-23-1 and 49-23-27, the Mississippi State Highway Commission entered into the following agreement with the United States:

“a. No structure may be located adjacent to or within Five Hundred (500) feet of an interchange, intersection at grade, or safety rest area, on any Interstate Highway, Freeway, or Primary Highway on. the Federal Aid Primary System. Said Five Hundred (500) feet to be measured along the Interstate or Freeway from the beginning or ending of pavement widening at the exit from or entrance to the main-traveled way.”

The Mississippi State Highway Commission then adopted Section H(3)(a) of the regulations known as SOP No. MND-09— 01-00-000 for the purpose of carrying out the state and national policies pertaining to the control of outdoor advertising in the areas mentioned hereinabove. The section follows:

“H. STANDARDS FOR PERMITS
The following standards or requirements apply to all permits issued for erection of off-premise advertising signs as described in Subsections 3d(2), 3d(3) and 3d(4) of Section G above. ***** &
3. General Location : Permits may be issued for signs to be located within zoned commercial and industrial areas hereinbefore defined subject to the following:
a. On Interstate Highways, Freeways, or Primary Highway on the Federal Aid Primary System signs shall not be located adjacent to or within five hundred (500) feet of an interchange, or safety rest area. Said five hundred feet to be measured along the Interstate or Freeway or Primary Highway from the beginning or ending of pavement widening at the exit from or entrance to the main traveled way. . . . ”

Appellant simply contends that the regulation adopted by the Mississippi State Highway Commission is more restrictive than the statutes and particularly Section 49-23-9. However, that section covers four limited areas: (1) maximum size of any outdoor signs, (2) all illuminated outdoor signs, (3) spacing of signs that are within one-half (Va) mile of certain areas, and (4) spacing limitations in other specified areas. We do not think that Section 49-23-9 operates to prevent appellee from promulgating the regulation in question which does not actually involve any area mentioned in such section.

We hold that the Regulation H(3)(a) adopted by the Mississippi State Highway Commission was authorized by statute and is not more restrictive than the statutes. Although Section 49-23-23 provides “Nothing in sections 49-23-1 to 49-23-9, shall be construed to abrogate or affect the provisions of any lawful ordinance, regulation or resolution, which are more restrictive than the provisions of such section.”, it is not necessary for us to discuss the applicability of said section to the present case in view of our holding above.

The judgment of the lower court is affirmed.

AFFIRMED.

PATTERSON, C. J., SMITH and ROBERTSON, P. JJ., and SUGG, WALKER, BROOM, BOWLING and COFER, JJ., concur.


text:
    William Larry BOWMAN v. Roland S. RUTLEDGE.
    No. 51149.
    Supreme Court of Mississippi.
    April 18, 1979.
    Mitchell, McNutt, Bush, Lagrone & Sams, William C. Murphree, Tupelo, for appellant.
    Michael Malski, Amory, Gary L. Carna-than, Glen H. Davidson, Tupelo, for appel-lee.
    Before ROBERTSON, WALKER and LEE, JJ.
   LEE, Justice, for the Court:

Roland S. Rutledge obtained judgment against William Larry Bowman for thirty-five hundred dollars ($3,500) in the Circuit Court of Lee County for personal injuries. The trial court sustained a motion of Rutledge for new trial and Bowman has appealed from that order.

On July 14, 1976, appellee was proceeding east on U. S. Highway 78 (Lee County) in a van vehicle. A gravel truck driven by one Earnest Knight was following him. Appel-lee stopped his vehicle because of an obstruction ahead, Knight came to a halt behind him, and Bowman, who was following Knight, drove a tractor-trailer truck into the rear of the Knight vehicle, causing it to collide with appellee’s van, resulting in personal injuries to appellee.

Appellee filed a motion for new trial stating three (3) grounds, among which he contended that the jury verdict was inadequate to compensate him for damages and injuries sustained.

The only error assigned and argued is that the court abused its discretion in ordering a new trial and the argument for both parties relates only to the adequacy of the verdict.

In his opinion sustaining the motion, the trial judge discussed contributory and comparative negligence and its effect on damages. He was of the opinion that all of the facts, both as to liability and damages, should be presented to another jury. The order granting a new trial recited that the court was of the opinion the damages assessed by the jury for the plaintiff are inadequate and a new trial should be granted, but, under the circumstances of the case, the new trial should be had on all issues.

The briefs and argument have not presented to this court the question whether or not we have jurisdiction of the cause in view of the trial court’s order granting a new trial on all issues. Since that question is apparent on the record, we raise it pursuant to Rule 6, Miss.Sup.Ct. Rules.

Mississippi Code Annotated Section 11 — 7— 213 (1972) provides:

“Every new trial granted shall be on such terms as the court shall direct; and no more than two new trials shall be granted to the same party in any cause. Provided, however, that when the sole ground for a new trial is the excessiveness or inadequacy of damages assessed, the party aggrieved may elect to appeal from the order granting a new trial.” (Emphasis added)

The above section plainly provides that an appeal from an order for a new trial may be had only when the sole ground for new trial is excessiveness or inadequacy of damages. New trial in the present case was not granted on the issue of damages alone, but on all issues.

In Farned v. Aetna Casualty & Surety Co., 263 So.2d 790 (Miss.1972), the Court said:

“An appeal can be taken to the Supreme Court from a final judgment of the circuit court in a civil case. Miss. Code 1942 Ann. § 1147 (1956). [Now § 11-51-3, MCA (1972)]. While an interlocutory appeal from an order or decree of the chancery court is possible if certain restrictive conditions exist, as set out in Miss. Code 1942 Annotated section 1148 (1956), no such appeal lies from a judgment of the circuit court except in an order for a new trial where the basis is excessiveness or inadequacy of damages. Miss. Code 1942 Ann. § 1536 (1956) [now § 11-7-213, MCA (1972)]; Bradley v. Holmes, 242 Miss. 247, 134 So.2d 494 (1961).” 263 So.2d at 791.

Also see City of Meridian v. Dickson, 266 So.2d 143 (Miss.1972) and Terry v. Robins, 13 Miss. 291 (1845).

We hold that the order of the trial judge granting a new trial on all issues is an interlocutory order, that the appeal was untimely taken, and that this Court has no jurisdiction of same.

Therefore, the appeal is dismissed and the cause is remanded for new trial on all issues in accordance with the trial court order.

APPEAL DISMISSED AND CAUSE REMANDED FOR NEW TRIAL.

PATTERSON, C. J., SMITH and ROBERTSON, P. JJ., and SUGG, WALKER, BROOM, BOWLING and COFER, JJ., concur.


text:
    Raymond G. BEARD v. STATE of Mississippi.
    No. 51158.
    Supreme Court of Mississippi.
    April 18, 1979.

      William B. Sullivan, Laurel, for appellant.
    A. F. Summer, Atty. Gen. by Carolyn B. Mills, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before SMITH, SUGG and COFER, JJ.
   SMITH, Presiding Justice, for the Court:

Raymond Beard was convicted of the murder of Johnnie Mae Hathome, sometimes referred to as his common law wife, and sentenced to life imprisonment. He has appealed, contending that he is entitled to reversal because of alleged errors which he charges were committed by the Circuit Court of Jones County in the course of his trial, assigning the following:

(1) The refusal of the trial court to grant his request for a preliminary hearing prior to trial and in failing to appoint counsel prior to indictment;

(2) The denial of his motion in limine and the allowing of matters of an inflammatory nature to go before the jury; and

(3) The verdict of the jury was against the overwhelming weight of the evidence.

Considering the third assignment first, the jury was justified by the evidence in finding that Beard had killed Johnnie Mae Hathorne, a woman with whom he had been living without benefit of clergy, by shooting her three times in the back as she held their baby in her arms. The homicide occurred in the dining room of the home belonging to a friend of the victim, the friend having been present and having witnessed the shooting. One Eddie Dee Kemp entered from another room in time to observe the firing of the last of the three shots, the final shot having been fired as Hathorne lay face down on the floor. Both of these witnesses testified.

In shooting Hathorne, Beard used a semiautomatic pistol. He admitted that he had shot and killed the deceased and the only defense offered was that the shooting had occurred accidentally when, Beard said, he was attempting to unload the pistol and it had begun firing and had continued to fire a number of times without the trigger having been pulled.

The eyewitness account was to the contrary, the testimony of the two persons who saw the shooting having been that they had observed Beard shooting the gun at Hat-horne and pulling the trigger as he fired. Testimony of the pathologists as to the path of the bullets supports their testimony.

Moreover, expert witnesses testified as to the results of tests and experiments made with the pistol. Their testimony was clear and unequivocal: to fire the pistol it was necessary to pull the trigger for each shot. Following each shot, a fresh cartridge would be automatically inserted into the chamber but the pistol would not fire until the trigger was again pulled. The pistol could not, they testified, have begun firing and continued to fire without the trigger having been pulled as Beard had claimed. After the shooting, Beard proceeded to the police headquarters, placed the pistol on the counter and informed the officers “I have just shot my old lady three times.”

There is no merit in the contention that the verdict was against the overwhelming weight of the evidence.

The second assignment relates largely to a contention on the part of Beard that the trial court should have sustained his motion to exclude any reference to the fact that the victim was holding their baby in her arms when she was shot. He contends that to allow this information to go to the jury merely served to inflame the jurors against him. We are unable to agree. The fact that the woman had her back turned and was holding her baby when she was shot in the back supports the charge that the killing was intentional, premeditated and done with malice aforethought. This circumstance, as well as others immediately surrounding the killing, was admissible as a part of the res gestae, the charge having been murder.

The first assignment consists in Beard’s contention that the indictment against him should have been quashed because he had not been granted a preliminary hearing or he should be granted a preliminary hearing or that evidence after the date of the homicide should be suppressed.

Following his surrender to the officers, Beard was charged by information, in the form of an affidavit, with the murder of Hathorne and was brought before a magistrate. The magistrate discussed the case with the officers and gave Beard the Miranda warnings. No request for an attorney was made (Beard testified at his trial that he had made none) nor was there any showing or suggestion of indigency at the time. The magistrate granted bail, fixing the amount at $25,000, pending the action of the next grand jury. The contention on appeal is that what was done failed to meet “constitutional” requirements of a “preliminary hearing.”

The homicide was committed on March 26. Beard immediately surrendered to the officers, turned over the gun and volunteered the information that he had killed Hathorne. The proceedings before the magistrate followed and his bail was fixed in the amount of $25,000. On April 3, an indictment having been returned against Beard, the circuit court then having acquired jurisdiction of the case, appointed counsel to represent Beard.

On April 5, a continuance was requested by Beard’s counsel and was granted by the court, the case being set tentatively for trial during the first week of the May term. On April 25 a motion was made to quash the indictment because “no preliminary hearing” had been held.

In Mississippi, prior to indictment, on an affidavit charging murder, the power of the magistrate is limited to (1) denying bail, (2) admitting the accused to bail and fixing the amount or (3) finding that no probable cause exists for believing that a felony has been committed and that the accused has committed it. The magistrate may neither try, convict, nor acquit in cases involving felonies and nothing the magistrate does or can do will affect the power of the grand jury to indict for the purpose of bringing the accused to trial in the circuit court.

In Mississippi, the circuit court, with its attendant grand jury, is not constantly in session. The so-called “preliminary hearing” provides an interim means for determining whether probable cause exists for holding one accused of felony until such time as the case may be acted upon by a grand jury. The power of the grand jury to indict is by no means restricted to cases involving persons who have been “bound over” by a magistrate.

In the present case, it is not suggested that the bail fixed was excessive, nor was relief sought by habeas corpus, although that remedy was available at all times. The record does not disclose whether Beard made the bond fixed by the magistrate but it does appear that he is at present at liberty under a $30,000 appearance bond made in connection with this appeal. In Mississippi the purpose of the preliminary hearing is limited to the determination of whether probable cause exists for believing that a felony has been committed and that the accused has committed it. Glass v. State, 278 So.2d 384 (Miss.1973), Stevenson v. State, 244 So.2d 30 (Miss.1971), McLelland v. State, 204 So.2d 158 (Miss.1967).

In Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1974), the United States Supreme Court held, in substance, that an adversary hearing is not required in order to determine whether there is probable cause for binding an accused over on a preliminary charge of felony and that if prejudice is not shown to have resulted because no preliminary hearing was conducted, the failure to hold such a hearing will not be considered reversible error. In Gerstein the Court stated:

As framed by the proceedings below, this case presents two issues: whether a person arrested and held for trial on an information is entitled to a judicial determination of probable cause for detention, and if so, whether the adversary hearing ordered by the District Court and approved by the Court of Appeals is required by the Constitution. [420 U.S. at 111, 95 S.Ct. at 861, 43 L.Ed.2d at p. 63].

The United States Supreme Court then disposed of the issue as follows:

Both the District Court and the Court of Appeals held that the determination of probable cause must be accompanied by the full panoply of adversary safeguards —counsel, confrontation, cross-examination, and compulsory process for witnesses. . .
These adversary safeguards are not essential for the probable cause determination required by the Fourth Amendment. The sole issue is whether there is probable cause for detaining the arrested person pending further proceedings. This issue can be determined reliably without an adversary hearing. The standard is the same as that for arrest. That standard — probable cause to believe the suspect has committed a crime — -traditionally has been decided by a magistrate in a nonadversary proceeding on hearsay and written testimony, and the Court has approved these informal modes of proof.
The use of an informal procedure is justified not only by the lesser consequences of a probable cause determination but also by the nature of the determination itself. It does not require the fine resolution of conflicting evidence that a reasonable — doubt or even a preponderance standard demands, and credibility determinations are seldom crucial in deciding whether the evidence supports a reasonable belief in guilt. See F. Miller, Prosecution: The Decision to Charge a Suspect with a Crime, 64-109 (1969). This is not to say that confrontation and cross-examination might not enhance the reliability of probable cause determinations in some cases. In most cases, however, their value would be too slight to justify holding, as a matter of constitutional principle, that these formalities and safeguards designed for trial must also be employed in making the Fourth Amendment determination of probable cause.23 [420 U.S. at 119-122, 95 S.Ct. at 866-867, 43 L.Ed.2d at 68-70],
Footnote 23, under Gerstein reads:
Criminal justice is already overburdened by the volume of cases and the complexities of our system. The processing of misdemeanors, in particular, in the early stages of prosecution generally are marked by delays that can seriously affect the quality of justice. A constitutional doctrine requiring adversary hearings for all persons detained pending trial could exacerbate the problem of pretrial delay. (420 U.S. at 122, 95 S.Ct. at 867, 43 L.Ed.2d at 70).

Moreover, appellant has failed to show that he suffered any harm or prejudice. In Harris v. State, 206 So.2d 829, 830 (Miss.1968), this Court held:

There is no evidence of any harm or prejudice against the appellant by the failure to have a preliminary hearing, if there were such failure. It would have had no effect upon the trial in this cause. [Citations omitted],

Nor is failure to appoint counsel at the preliminary hearing reversible error, under the ruling in Gerstein :

Because of its limited function and its nonadversary character, the probable cause determination is not a “critical stage” in the prosecution that would require appointed counsel. The court has identified as “critical stages” those pretrial procedures that would impair defense on the merits if the accused is required to proceed without counsel. (Citations omitted). (420 U.S. at 122, 95 S.Ct. at 867, 43 L.Ed.2d at 70).

In Allred v. State, 187 So.2d 28 (Miss.1966), we said that:

Under the facts in this case, the first time an attorney was needed by the defendant was when he was presented for arraignment. The preliminary hearing was not such a “critical time” under the facts in this case as would require the Court to quash the indictment returned by the grand jury against the petitioner. . (187 So.2d at 32)

Beard was tried on May 9, more than a month after counsel had been appointed. A motion to produce and disclose was sustained by the trial court in practically its entirety, and there is no complaint that the State failed to comply with the court’s order in this regard. The identity of the two eyewitnesses was known to Beard and both were available to him by subpoena. There was no showing in the course of his trial, or upon the hearing of his motion for a new trial that any prejudice resulted to Beard because of the informality of the hearing at which his bail was fixed. We have concluded that the trial court was correct in overruling the motion to quash the indictment.

The whole record discloses that Beard was fairly tried, there was ample evidence to support his conviction, and there was no reversible error committed in the trial of the case.

AFFIRMED.

PATTERSON, C. J., ROBERTSON, P. J., and SUGG, WALKER, BROOM, LEE, BOWLING and COFER, JJ., concur.


text:
    Joe JACKSON and Betty Sue Jackson v. CLAY COUNTY, Mississippi.
    No. 51109.
    Supreme Court of Mississippi.
    April 18, 1979.
    James D. Waide, III, West Point, for appellant.
    James C. Helveston, A. M. Edwards, Jr., West Point, for appellee.
    Before PATTERSON, C. J., and BROOM and BOWLING, JJ.
   Appeal from Circuit Court, Clay County; Harvey Buck, Judge.

AFFIRMED.


text:
    The WURLITZER COMPANY and Aetna Casualty and Surety Company v. Earl B. HARRINGTON.
    No. 51105.
    Supreme Court of Mississippi.
    April 18, 1979.
    Mitchell, Rogers, Eskridge, Voge & Clayton, Claude F. Clayton, Jr., Tupelo, for appellants.
    Farese, Farese & Farese, Anthony T. Farese, Ashland, for appellee.
    Before PATTERSON, C. J., and BROOM and COFER, JJ.
   Appeal from Circuit Court, Marshall County; W. W. Brown, Judge.

REVERSED AND ORDER OF FULL COMMISSION REINSTATED.

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


text:
    Shellie Ruth STEELE, Betty Ann Davis and Mary L. Mack v. STATE of Mississippi.
    No. 51159.
    Supreme Court of Mississippi.
    April 18, 1979.
    LeRoy Pitts, Meridian, for appellants.
    A. F. Summer, Atty. Gen. by Carolyn B. Mills, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C. J., and BROOM and BOWLING, JJ.
   Appeal from Circuit Court, Jones County; James D. Hester, Judge.

AFFIRMED.


text:
    Sharon Anne Vonkohn THOMPSON v. Willie D. THOMPSON.
    No. 51115.
    Supreme Court of Mississippi.
    April 18, 1979.
    Joe 0. Sams, Jr., Columbus, for appellant.
    C. Darrell Reeves, Columbus, for appel-lee.
    Before SMITH, P. J., and SUGG and COFER, JJ.
   Appeal from Chancery Court, Lowndes County; Lenore L. Prather, Chancellor.

AFFIRMED.


text:
    Billy F. SUDDUTH et ux v. The GREAT AMERICAN INSURANCE COMPANY.
    No. 51139.
    Supreme Court of Mississippi.
    April 18, 1979.
    Farese, Farese & Farese, John Booth Farese, Ashland, for appellants.
    Claude F. Clayton, Jr., Mitchell, Rogers, Eskridge, Voge & Clayton, Tupelo, for ap-pellee.
    Before SMITH, P. J., and SUGG and COFER, JJ.
   Appeal from Circuit Court, Lee County; L. T. Senter, Jr., Judge.

AFFIRMED.


text:
    James C. NOWELL v. STATE of Mississippi.
    No. 51213.
    Supreme Court of Mississippi.
    April 18, 1979.
    Thomas A. Coleman, Ackerman, for appellant.
    A. F. Summer, Atty. Gen. by Billy L. Gore, Sp. Asst. Atty. Gen., Jackson, for • appellee.
    Before SMITH, P. J., and SUGG and COFER, JJ.
   Appeal from Circuit Court, Choctaw County; Clarence E. Morgan, Jr., Judge.

AFFIRMED.


text:
    Daniel Douglas O’QUIN v. STATE of Mississippi.
    No. 51055.
    Supreme Court of Mississippi.
    April 18, 1979.
    Mounger & Mounger, Breed 0. Mounger, Sr., Tylertown, for appellant.
    A. F. Summer, Atty. Gen., by Catherine Walker Underwood, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C. J., and BROOM and BOWLING, JJ.
   Appeal from Circuit Court, Pike County; Joe N. Pigott, Judge.

REVERSED AND APPELLANT DISCHARGED.

SMITH and ROBERTSON, P.JJ., and SUGG, WALKER, LEE and COFER, JJ., concurring.


text:
    VILLAGE FAIR SHOPPING CENTER COMPANY et al. v. Jack D. WILK et al.
    No. 51064.
    Supreme Court of Mississippi.
    April 18, 1979.
    Young, Scanlon & Sessums, Stephen W. Rimmer, James Leon Young, Jackson, for appellant.
    Singley, Minniece, Neville & Hamill, Thomas Y. Minniece, Meridian, for appellee.
    Before PATTERSON, C. J., and BROOM and BOWLING, JJ.
   Appeal from Chancery Court, Lauderdale County; Howard R. Pigford, Chancellor.

AFFIRMED.


author: PER CURIAM. BEATTY, Justice

text:
    SPANISH FORT MOBILE HOMES, INC., an Alabama Corporation v. SEBRITE CORPORATION, a Delaware Corporation.
    77-552.
    Supreme Court of Alabama.
    Jan. 26, 1979.
    Rehearing Denied April 6, 1979.
    W. Kenneth Gibson, Fairhope, for appellant.
    Ron E. Kopesky, Fairhope, for appellee.
   PER CURIAM.

The respective contentions of the parties put into focus the dispositive issue here presented: Appellant contends that this is a tort action, and thus barred by the one-year Statute of Limitations; Appellee contends that it is a contract action, and thus governed by the six-year Statute.

This action arose out of the purchase on July 23,1974, of a mobile home by Comer I. Brunson, Jr., and Mae Brunson from this defendant, Spanish Fort Mobile Homes, Inc. The buyers executed a Security Agreement and Retail Installment Contract form. Those parts of that form relevant here are item 5, “Total Down Payment,” and the “Terms of Seller’s Assignment.”

The “Total Down Payment” clause appears literally as follows:

5. TOTAL DOWN PAYMENT (_, (Trade-in Allowance)

minus $_, plus (Lien payoff)
$ 1001.50_) .$ 1001.50 (5) (Cash down payment)

Following execution of the contract, it was assigned by the defendant seller to Sebrite. The Terms of Seller’s Assignment contain, inter alia, this language:

Seller warrants that: . . . the down payment was made by the Purchaser in cash and not its equivalent, unless otherwise noted in the contract; Seller makes said warranties for the purpose of inducing Assignee to purchase the contract, and if any such warranties should be untrue, Seller shall buy the contract from the Assignee upon demand, and will pay therefor, the amount unpaid to Assignee thereon, plus any and all costs, expenses, and reasonable attorney fees paid or incurred by Assignee in respect thereto. Said remedy shall be cumulative and not exclusive and shall not effect any other right or remedy that the Assignee might have. . . . (emphasis added)

As stated in Sebrite’s amended complaint, “subsequent to the date of July 23, 1974,” the contract was assigned to the plaintiff, and “on or about October 20th 1976, Plaintiff became aware that the representations made in the Disclosure Statement were false . . . .” This action was filed on October 13, 1977.

In addition to its assertion that the representations of Defendant were false, Plaintiff alleged “that if the truth had been known . . . the Plaintiff would not have purchased the contract from the Defendant . . . and the Defendant misrepresented to the Plaintiff . . . for the purpose of inducing it to purchase said Contract.” Plaintiff then asked “that the contract ... be rescinded and that Defendant be required to buy the contract back from Plaintiff . . pursuant to the terms of the contract . . .”, costs and attorney’s fees.

The case was heard ore tenus by the trial Court without a jury. Its decree granted the relief prayed for, requiring Defendant to pay Sebrite the sum of $12,628.84 — representing Sebrite’s incurred costs (the balance due on the contract), including a reasonable attorney’s fee, and court costs.

Defendant contends that the action is based upon fraud; that Sebrite offered no evidence of any date upon which it first discovered the “fraud” charged in the amended complaint (§ 6-2-3, Ala.Code 1975); and thus Plaintiff’s action is barred by the one-year Statute of Limitations. Responding to this argument, Sebrite asserts that its action, though based on fraud, is ex contractu — the misrepresentation being expressly proscribed by the contract— and thus it is governed by the six-year Statute of Limitations provided in § 6-2-34, rather than § 6-2-39, Ala.Code 1975, the one-year Statute.

Ordinarily, actions to rescind a contract, alleging misrepresentation of material facts relied upon to the Plaintiff’s detriment, are statutorily grounded actions in tort provided in §§ 6-5-100, 101, 102, 103, and 104, Ala.Code 1975. Kyser v. Southern Building & Loan Ass’n., 224 Ala. 673, 141 So. 648 (1932); Southern Building & Loan Ass’n. v. Waldrop, 24 Ala.App. 362, 135 So. 418 (1931). But the election of remedies doctrine takes as its premise: Where the duty — the breach of which is the gravamen of the claim — arises both by contract and by operation of law, the Plaintiff is free to elect his action either ex contractu or ex delicto, and this without regard to Plaintiff’s motive. Berry v. Druid City Hospital Board, 333 So.2d 796 (Ala.1976); Vines v. Crescent Transit Co., 264 Ala. 114, 85 So.2d 436 (1955); and Tennessee Coal, Iron & Railroad Co. v. Sizemore, 258 Ala. 344, 62 So.2d 459 (1952).

The question here is not the source of the duty to truthfully disclose the nature of the down payment (cash as opposed to “trade in”); indeed, the material contractual terms — prohibiting such misrepresentation — could hardly have been clearer. Rather, the question is whether the Plaintiff’s claim, as framed by the pleadings, tried by the evidence and responded to by the trial Court’s final decree, sounds in contract.

We think the answer is equally clear; and we hold that Plaintiff’s claim states an action in contract. The language of the statement of the claim tracks the provisions of the contract; avers that Defendant’s representations in the Disclosure Statement were false; and prays for the precise relief provided for in the contract in the event of its breach by way of such misrepresentation.

The evidence comports fully with the allegations of the statement of the claim; and the award of the trial Court grants the Plaintiff relief “pursuant to the terms of the contract,” i. e., “Seller [is ordered to] buy the contract from the Assignee . and . . . pay therefor, the amount unpaid to Assignee thereon, plus any and all costs, expenses, and reasonable attorney fees . . . .”

Given the Defendant’s contractual duty with respect to the truthful representation of the cash down payment, the Plaintiff could have pursued one of the statutory claims for fraud — subject, of course, to the legal incidences of a tort action (a shorter Statute of Limitations and, in some instances, a broader measure of damages). This option is made unmistakably clear by the provision in the contract: “Said [contract] remedy shall be cumulative and not exclusive . . . .”

This “cumulation of remedies” clause could hardly be interpreted as words of restriction. Having the right to pursue its remedy in tort or contract, Plaintiff contends it chose to sue on the contract; and, for the reasons stated, we agree. Thus, the trial Court did not err in refusing to apply the one-year Statute of Limitations.

Appellant’s other allegations of error are without merit.

AFFIRMED.

TORBERT, C. J., BLOODWORTH, FAULKNER, JONES, ALMON, SHORES and EMBRY, JJ., concur.

MADDOX and BEATTY, JJ., dissent.

BEATTY, Justice

(dissenting):

Conceding that this case is a close one, nevertheless I believe the majority has confused the legal doctrines applicable to it, and my reasons follow:

Our cases uniformly hold that a contracting party who is the victim of a fraud has an election. He may rescind and sue for his money back, or he may elect» to affirm the contract and sue for damages for the deceit practiced upon him. Kyser v. Southern Building & Loan Ass’n., 224 Ala. 673, 141 So. 648 (1932); Southern Building & Loan Ass’n. v. Waldrop, 24 Ala.App. 362, 135 So. 418 (1931). It has been stated as a general proposition that, should the victim elect to rescind, he must restore benefits he has received under the contract, but that rule is subject to exceptions. See, e. g., Kennedy v. Collins, 250 Ala. 503, 35 So.2d 92 (1948). In any case, when the victim who was induced by fraud to enter the contract later wishes to rescind, the burden is upon him to prove that the discovery of the fraud occurred within twelve months from the date upon which he brought his action. Code of 1975, §§ 6-2-3, 6-2-39(a)(5). Accord, State Security Life Ins. Co. v. Henson, 288 Ala. 497, 262 So.2d 745 (1972).

The basic issue under the defendant’s first contention and these authorities is whether or not the plaintiff’s action was ex contractu or ex delicto. In short, the plaintiff maintains that he sought recovery under the contract according to its terms, while the defendant contends that the action was based upon fraud.

Legal fraud which entitles one to elect either to rescind a contract or to affirm it takes several forms. It is fraud to wilfully, or recklessly without knowledge, make a misrepresentation of a material fact which is acted upon by another. Code of 1975, § 6-5-101. Even an innocent misrepresentation made by mistake, but which is acted on by the victim, is legal fraud. § 6-5-101, supra; Hudson v. Moore, 239 Ala. 130, 194 So. 147 (1940); Hall Motor Co. v. Furman, 285 Ala. 499, 234 So.2d 37 (1970). And the suppression of a material fact is under some circumstances legal fraud. Code of 1975, § 6-5-102. This Court has recently quoted with favor an early description of fraud:

Fraud, in the nature of it, implies that the party has been misled and that, by the wrong of another, he is accepting and resting in a false sense of security. A party thus situated is not required to presume fraud or suspect it, until something comes to him leading a just person to suspect and make inquiry. [Johnson v. Shenandoah Life Ins. Co., 291 Ala. 389, 281 So.2d 636 (1973) quoting from Williams v. Bedenbaugh, 215 Ala. 200, 110 So. 286 (1926)].

And this Court has described “legal fraud” in Rudman V. Hooks, 252 Ala. 280, 281, 40 So.2d 866 (1949):

The culpability which stamps misrepresentations of material facts as an inducement to action by another as a ‘legal fraud,’ as defined by the foregoing section [now § 6-5-101], is in the assertion of that to be true which is not true, when made to be relied on and which is relied on to the injury of the party misled thereby. (citations omitted)

I note particularly that the contract between these parties, whose terms required the seller to buy the contract back on demand and to pay all costs, expenses and reasonable attorney fees, also made that remedy a cumulative one, that is, it was not the exclusive remedy. Accordingly, it would have been proper for Sebrite to have followed one of its alternative remedies: affirm the contract and seek recovery according to its terms, which specified that the seller would pay the unpaid amount to Sebrite, plus Sebrite’s expenses and attorney fees; or rescind the contract, making the fraudulent representation the gist of the sought-after recovery, and seek to recover his money. The recoveries in each would not be the same because, for one thing, attorney’s fees would be recoverable in an action upon the contract which provides for their payment, but not otherwise. Hartford Accident & Indemnity Co. v. Crosby, 277 Ala. 596, 173 So.2d 585 (1965).

Here the plaintiff Sebrite sought the latter alternative. Its amended complaint alleged “that on or about October 20, 1976, Plaintiff became aware that the representations made in the Disclosure Statement were false . . . ” and that “. . . Sellers made said Warranties for the purpose of inducing the Assignee to purchase the Contract. . . . ” It added that “if the truth had been known that no down payment had been made the Plaintiff would not have purchased the contract . . ” and “the Defendant misrepresented to the Plaintiff herein for the purpose of inducing it to purchase said Contract. . ” The plaintiff then asked for a rescission. In other words, Se-brite actually utilized a cumulative remedy as authorized by the contract. Sebrite sued under the contract but it did not sue on the contract. And taking Sebrite’s allegations together they state a cause of action based upon legal fraud under one of the alternatives contained in § 6-5-101. Cf. Berman Bros. Iron & Metal Co. v. State Savings & Loan Co., 222 Ala. 9, 130 So. 554 (1930).

The defendant has made the point that there was no evidence offered by Sebrite of any date on which it discovered the fraud, and hence there was a failure of proof. Sebrite concedes this argument by insisting that the action was based upon the contract between it and the defendant. Indeed, the record contains a stipulation concerning the person from whom Sebrite learned “of this fraud” (in the words of Sebrite’s counsel) but this stipulation did not cover the time when Sebrite became aware of it. Having determined that the action was based upon fraud, the burden as we have stated, was upon Sebrite to offer evidence of the discovery of the fraud within twelve months from the date the action was brought, i. e., within twelve months of October 13, 1977. Henson, supra. Upon Sebrite’s failure to adduce such proof, the defendant’s motion for a directed verdict raising that ground, made at the conclusion of the hearing, was due to be granted. For the error in refusing to grant that motion the decree should have been reversed and the cause remanded.

MADDOX, J., concurs.

      . As an aside, two observations are appropriate: 1) Whether the tort claim for fraud would have been available absent the express contractual prohibition against such misrepresentation, we need not decide. This is not the issue before us. Fraud in the inception of a contract, as a basis for its rescission, may lay outside and beyond the contract terms (as in the case of implied representations), and each case must be decided on its own facts; 2) The use of the words “that the contract be rescinded,” in Plaintiffs prayer for relief, cannot be said to render the action one in tort, because the operative effect of the remedy provided by the terms of the agreement is a complete cancellation or rescission of the contract.


author: FAULKNER, Justice.

text:
    Phillip Mark ANDREWS v. JOHN E. SMITH’S SONS COMPANY, etc.
    78-47.
    Supreme Court of Alabama.
    March 23, 1979.
    Rehearing Denied April 20, 1979.

      Johnnie B. Byrd, Jr., of Caffey & Byrd, Brewton, for appellant.
    Bert S. Nettles and J. Harley McDonald, Jr., Mobile, for appellee.
    William D. Melton, Evergreen, amicus curiae.
   FAULKNER, Justice.

Andrews appeals from a summary judgment granted in favor of the defendant, Hobam, Inc., also referred to as John E. Smith’s Sons Co., a division of Hobam, Inc. We affirm. <

Andrews, an employee of Conecuh Quick Freeze, had his right arm amputated below the elbow following an accident at his place of employment in May, 1976. He was stuffing ground beef into a commercial meat grinder with his hand when it was caught and pulled into the grinding mechanism.

Suit was filed against “John E. Smith’s Sons Co., a division of Hobam, Inc., a corporation” with service on Hobam, Inc. Count One was based on the Alabama Extended Manufacturer’s Liability Doctrine and Count Two (which was struck) sounded in warranty. Here we are concerned only with the propriety of summary judgment for the defendant on Count One, which reads in its entirety:

“COMPLAINT
“This is a third party action under Title 26, Section 312, Code of Alabama 1940 (recompiled 1958) brought under the Alabama Extended Manufacturer’s Liability Doctrine and also for breach of warranties under Title 7A, Code of Alabama.
“COUNT ONE
“1. On or about May 17, 1976, the Plaintiff was an employee of Conecuh Quick Freeze, Inc. in its packing house facilities in Evergreen, Conecuh County, Alabama, where the Plaintiff had to use a meat grinding machine which had been designed, manufactured, inspected, sold, distributed, repaired and/or placed in the stream of commerce by the Defendants John E. Smith’s Sons Company, a Division of Hobam, Inc., a corporation; and the following Defendants whose names will be supplied by amendment when ascertained: ABC Partnership, XYZ, Inc., a corporation and John Doe and Richard Roe.
“2. That on or about the above mentioned date the Plaintiff’s right arm became caught in said meat grinding machine and the Plaintiff sustained a traumatic amputation of the right arm below the elbow, causing great pain and mental suffering and permanent disfigurement and disability. The Plaintiff was caused to be hospitalized to seek medical attention and to incur expenses thereby and will be caused to incur such expenses in the future. The Plaintiff has also lost wages as the result of his injury and will be prevented in the future from pursuing other occupations which would require the use of his right arm, and the Plaintiff will incur great economic losses thereby. The Plaintiff has been permanently deprived of his right arm and will always suffer from the loss thereof and from the attendant mental anguish.
“3. The Plaintiff avers that his injuries were the direct and proximate consequence of the negligence of the Defendants in designing, manufacturing, inspecting, selling, marketing, distributing, repairing and/or placing in the stream of commerce said grinding mill in a defective condition which rendered it unreasonably dangerous to the Plaintiff as the ultimate user thereof or consumer thereof, in that the Plaintiff was exposed to an unreasonable risk of injury to his arm while using said machine for the purpose and in the manner for which it was intended or expected by Defendants. Said Defendants were engaged in the business of designing, manufacturing, inspecting, selling, distributing and/or repairing said product. The Defendants placed the said product in the stream of commerce with the reasonable expectation that it would reach the Plaintiff as the ultimate user or consumer thereof. Said product reached the user or consumer without substantial change in the condition in which it was sold; and that if there was any change in the condition, nature or the use in said product by the Plaintiff or anyone else, said change was anticipated and expected by the Defendants.
“WHEREFORE, Plaintiff demands judgment against the Defendants John E. Smith’s Sons Company, a Division of Ho-bam, Inc., a corporation; ABC Partnership; XYZ, Inc., a corporation and John Doe and Richard Roe in the sum of $500,-000.00 and costs.”

Through discovery it was learned that the meat grinder was manufactured and sold by John E. Smith’s Sons Co., a close corporation, probably in 1949. The grinder did not have a guard over the opening to prevent feeding meat with the hand, nor did it have a stomper or mallet with which to feed and stuff the grinder, although other grinders marketed at the time by Smith Co. had these safety features.

In 1962 Smith sold substantially all its assets for cash, including accumulated good will, orders, repair contracts, and services to Hobam, Inc., who styled themselves “John E. Smith’s Sons Co., a division of Hobam, Inc., since 1868.” Two members of the Smith family retired at the sale, but otherwise the business operation of the company remained the same, with the same physical plant and employees. The sale included a non-competition agreement and there was no participation in management decisions or profits by the predecessor corporation after 1962. Hobam received all patents, including one on the grinder in question and the safety devices used on similar models. Within the last several years Hobam has sold replacement parts to Conecuh Quick Freeze for this particular meat grinder.

After the transfer of assets the predecessor corporation changed its name to 66 Highland Ave., Inc., by amending its Certificate of Incorporation, and it continued in existence de facto as well as de jure until it was liquidated in 1975. Under the terms of the purchase agreement 66 Highland Ave., Inc., specifically retained liability for all products liability claims on machines sold prior to June 30, 1962. 66 Highland Ave., Inc., continued to maintain product liability insurance until June, 1977, to cover claims arising over this machinery. The coverage was in effect at the time of Andrews’ accident. Upon obtaining this information regarding the sale of assets Andrews substituted 66 Highland Ave., Inc., as a defendant. It appears, however, that the plaintiff has been unable to serve this corporation. No other amendments to the complaint were made.

Andrews presents three theories to attack the summary judgment: (1) Hobam is liable as the supplier of component replacement parts for a defectively designed machine; (2) Hobam is liable for failure to warn third persons of obvious defects of which it was aware in its predecessor corporation’s product; and (3) Hobam is liable for defects in its predecessor’s product since Hobam is a mere continuation of the original manufacturer.

Andrews’ first theory misconstrues the concept of liability for defective component parts. Under Casrell v. Altec Industries, Inc., 335 So.2d 128 (Ala.1976), and Atkins v. American Motors Corp., 335 So.2d 134 (Ala.1976), a manufacturer who uses component parts in manufacturing or assembling a product for sale as a complete unit may be liable under appropriate circumstances where the defect is in a component part. But Hobam is not in this instance manufacturing products in this fashion. It has simply made replacement parts which were not alleged to be defective in themselves. The alleged defect here is in the design of the meat grinder, which Ho-bam was not responsible for. Under Andrews’ approach, a tire manufacturer could be liable for injuries resulting from the defectively designed body structure in an automobile.

Andrews predicates liability for failure to warn upon this Court’s holdings in Ford Motor Co. v. Rodgers, 337 So.2d 736 (Ala.1976), and Beloit Corp. v. Harrell, 339 So.2d 992 (Ala.1976). In Rodgers the Court stated that:

“[I]f a manufacturer places a machine on the market which is imminently dangerous when put to its intended purpose, then the manufacturer is chargeable with the duty ‘not to expose to such danger an ignorant public who will likely use it. And if defendant [manufacturer] knows that it is imminently dangerous when used in the customary manner, it is chargeable with anticipating such injury from its use without exercising reasonable diligence to make such danger known to the public likely to use it.’ [Altorfer Bros. Co. v. Green,] 236 Ala. 427, 183 So. 415, 417 [(1938)].”

Although the duty does not extend to open and obvious dangers, Rodgers, it is for the jury to determine whether or not a specific plaintiff subjectively appreciated a known risk. Beloit. Andrews asserts that this duty should be imposed upon Hobam as it was responsible for servicing the machine, it had knowledge of the defective design of the machine, and it had the means and technology to guard the machine.

The possibility of recovery, under these circumstances was raised in Shane v. Hobam, Inc., 332 F.Supp. 526 (E.D.Pa.1971), where the district court denied defendant’s motion for summary judgment, noting that the record did not show whether Hobam had ever serviced the grinder in question or had obtained knowledge of its allegedly defective design. See also Wilson v. Fare Well Corp., 140 N.J.Super. 476, 356 A.2d 458 (1976). In this case the record answers both of these questions: Hobam had serviced the grinder at Conecuh Quick Freeze and it did have knowledge within legal contemplation of the hazards presented by the grinder. This theory of recovery was neither presented in plaintiff’s complaint, nor was it added by amendment. While similar questions may arise in an attempt to prove assumption of the risk under the Extended Manufacturer’s Liability Doctrine, see Rodgers and Beloit, Andrews’ case is not in that posture. , He is attempting to recover under a theory which predates the Extended Manufacturer’s Liability Doctrine and which was not entirely subsumed by it. Even under our liberalized rules of pleading, Andrews’ failure to include this theory of recovery in his complaint is fatal.

Finally, Andrews argues that Ho-bam is liable for defects in its predecessor’s product since Hobam is a mere continuation of the corporation which actually manufactured the meat grinder. As a general rule, where one company sells or otherwise transfers all its assets to another company, the transferee is not liable for the debts and liabilities of the transferor unless (1) there is an express agreement to assume the obligations of the transferor, (2) the transaction amounts to a de facto merger or consolidation of the two companies, (3) the transaction is a fraudulent attempt to escape liability, or (4) the transferee corporation is a mere continuation of the transfer- or. 15 Fletcher, Cyclopedia Corporations § 7122 (Perm.ed.1973); 19 Am.Jur.2d § 1546. Andrews urges us either to hold this rule inapplicable to products liability claims or to fit Hobam within the fourth exception to the rule.

To support his position that the rule should be inapplicable to products liability claims Andrews relies on the recent case of Ray v. Alad Corp., 19 Cal.3d 22, 136 Cal.Rptr. 574, 560 P.2d 3 (1977). There the successor corporation continued its predecessor’s operation in the same location and with the same personnel and materials. The successor corporation marketed its products under their original trade names. The trial court dismissed the action but the California Supreme Court reversed, relying squarely on the policies underlying strict liability. Essential to its decision was the concept of risk-spreading and the unavailability of the predecessor corporation for suit (the predecessor was liquidated soon after the transfer.) Consequently, to adopt the rules laid down by the California Supreme Court in Alad would be inappropriate in this state, where negligence remains the gravamen of products liability.

The plaintiff has also referred us to the case of Turner v. Bituminous Casualty Co., 397 Mich. 406, 244 N.W.2d 873 (1976), which held that there may be a cause of action where the totality of the transaction demonstrates a basic continuity of the enterprise. There the Michigan Supreme Court treated the problem as one of products liability, not corporation law, but its language recognizes a certain culpability on the part of the successor corporation. The Court noted that the old and new corporations were not really “corporate strangers.” The successor purposefully established an appearance of continuity to promote sales. As the Court stated,

“Justice would be offended if a corporation which holds itself out as a particular company for the purpose of sales, would not be estopped from denying that it is that company for the purpose of determining products liability.”

The reasoning of Turner is persuasive and compatible with our own Extended Manufacturer’s Liability. We opine that Hobam is a prime candidate for application of an estoppel theory. There was a basic continuity of the enterprise between the original Smith Co. and Hobam: the same products were manufactured by the same people in the same place. Hobam has made every effort to benefit from the reputation established by the original Smith Co., even to retaining the epithet, “since 1868.” Hobam holds itself out to its customers as an old established company and solicits their business as if it were the old family firm with which they originally dealt. It is only when an injury occurs that they inform their customers that they are not really the Smith Co. who manufactured the meat grinder. Under these circumstances justice requires that Hobam be estopped from denying liability to innocent third parties, even though it may have agreed with its predecessor that Hobam would not be liable for products liability claims.

However, our approval of an estop-pel approach to liability of a successor corporation for its predecessor’s defective products cannot lead to a reversal in this case. Again, this theory of recovery, while thoroughly briefed and argued on appeal, was completely omitted from the complaint. The complaint speaks only of “John E. Smith’s Sons Co., a division of Hobam, Inc.” There is never any mention of successor and predecessor corporations, a transfer of assets, or a continuation of the original business. The complaint gives the defendant no notice whatsoever that it is to be held liable as the successor of the corporation that actually manufactured the meat grinder. Such a drastic alteration in the normal posture of a suit under the Extended Manufacturer’s Liability Doctrine must at least be alluded to in the pleadings. Since plaintiff has failed to do so, the summary judgment for the defendant must be affirmed.

AFFIRMED.

BLOODWORTH, ALMON and EMBRY, JJ., concur.

TORBERT, C. J., concurs in the result.


author: BEATTY, Justice.

text:
    In the Matter of the ESTATE OF Thomas R. AMASON, Deceased. Elaine A. WALKER v. Nettie T. AMASON and Marion Clyde Arnason.
    77-526.
    Supreme Court of Alabama.
    April 6, 1979.

      William B. Hairston, Jr., Birmingham, for appellant.
    J. H. Crow, III, Birmingham, for appel-lees.
   BEATTY, Justice.

This is an appeal from a court decree which removed the appellant, Elaine A. Walker, as trustee of a testamentary trust created by the will of her father, and which divided and distributed funds from a savings account held jointly by the appellant and appellee, Nettie T. Amason. We reverse and remand.

In 1967 Thomas Amason executed a will in which he left his estate to his daughter, Elaine A. Walker, in trust, to be used for the comfort and support of his wife, Nettie T. Amason. The pertinent portion of that will provided that:

All of the rest, residue and remainder of my property of whatsoever kind and character, whether real or personal, and wheresoever situated, I give, bequeath and devise unto my daughter, Elaine A. Walker, as Trustee, in trust nevertheless, for the uses and purposes, upon the terms and conditions, and with the powers and duties hereinafter stated.
(a) I direct that the said Trustee shall hold and manage said property for the use and benefit of my beloved wife, Nettie Ann Amason, for the remainder of her lifetime. During the life of my said wife I direct that the Trustee shall use so much of the income from said property as the Trustee in her sole judgment shall deem to be necessary for my wife’s comfort and support and if in the judgment of my said Trustee the income from said property is not sufficient for said purposes then the Trustee is hereby authorized and directed to use whatever amount of the principal or corpus of said trust for said purposes as she in her sole judgment deems to be necessary. It is my intent that my wife shall be well provided for and that as long as she lives that she shall not want for any of the necessities of life, including the best of medical care as long as she may live even though such comforts and care would use and consume all of the trust estate herein created. Upon the death of my said wife, . . . the remainder of said trust estate shall be distributed .
(b) . . . equally to my children who are then living, share and share alike and to the children of any deceased child of me [sic] in equal shares per stirpes.

In 1969 Thomas Amason directed his daughter, Elaine A. Walker, to open a joint savings account in her name and in the name of her mother. In this account there were placed monies belonging to Thomas and Nettie Amason.

After Thomas Amason’s death, Nettie T. Amason lived for a time in a trailer park, then a nursing home before moving in with a son, appellee Clyde Amason. Shortly after moving into her son’s home, Nettie Amason requested that Mrs. Walker give to her “my money.” Mrs. Walker refused. Thereafter, Mrs. Walker, as co-executrix of the estate, filed a petition for final settlement of the estate of her father. She also petitioned the court to rule that the monies paid into the joint savings account constituted an implied trust to be used by her pursuant to the terms of her father’s will. Nettie Amason and her son, Clyde — a co-executor of the estate — counterclaimed for the savings account monies and asked for removal of Mrs. Walker as trustee.

The testimony at trial showed without dispute that the savings account, established during Thomas Amason’s lifetime, was made up chiefly of Mr. Amason’s black lung benefits and the installment payments from the sale of the Amasons’ jointly owned home. Incidental monies, however, were also included: money saved by the couple from their separate social security income, and Mr. Amason’s miner’s pension. The actual amount of each party’s contribution was not determined by the court and is not determinable from the record. It does appear from the record that after Amason’s death the installment payments from the sale of the home were no longer paid into the joint savings account but were paid into the estate (trust) account. Additionally, Mrs. Walker in December, 1974, closed the joint savings account and paid those funds into the trust account.

Ón February 24, 1975 the outstanding balance on the house note, $5,860.00, was placed in escrow with the Alabama Title Company pending the outcome of these proceedings. The deputy register had determined that of those house proceeds received between Amason’s death and February 24, 1975, $720.00 (V2 the proceeds) belonged to Nettie Amason.

Testimony also showed that while Mrs. Amason receives over $400.00 monthly, principally social security, no monies had been paid to her by Mrs. Walker out of the trust funds since 1972. Nor had Mrs. Ama-son received funds from the joint savings account except for $25.00, and one or two months support in 1974 while she was in the nursing home. There was, however, little or no evidence offered on Nettie Amason’s needs. Clyde Amason testified that while his mother drew about $420.00 a month from social security it would take $650.00 or $700.00 for him and his wife to reasonably take care of her, although testimony had established only $575.00 a month had been paid to the nursing home while she was a patient there. Clyde Amason testified further that the difference in the $700.00 he felt was necessary and the $420.00 a month Nettie Amason received from social security would pay for the trips he and his wife made each month taking Mrs. Amason to the beauty shop, grocery store, etc. His testimony showed, however, that his mother, Nettie Amason, pays for her own food, clothes, cosmetic and beauty shop needs, legal fees and incidental necessities and even then, Mrs. Amason had managed to accumulate from her social security payments $800.00 in savings. Furthermore, when Clyde Amason was asked what he intended to do with any money awarded his mother by order of the court, he stated that he would hold onto it because his mother was still in good health.

On March 16, 1978 the trial court handed down a decree which, as later amended, stated in pertinent part:

The Court concludes form [sic] the evidence that Nettie Amason is fully competent to manage any monies which may be allotted to her from the trust. In spite of her years, she is energetic and knowledgeable. Further, the Court finds that Elaine A. Walker, Trustee, has performed the duties of the Trustee in a commendable manner. However, on account of the change of the residence and living habits and requirements of Nettie A. Amason, it is to the best interest of all parties that Elaine A. Walker be relieved of her duties as Trustee. The performance of the duties of a Trustee are often onerous and thankless. By the removal of Elaine A. Walker as Trustee, the Court does not mean to imply, in the slightest degree, that she has been remiss in the performance of her duties as Trustee, (emphasis added)
The issues heard being submitted upon the pleadings and upon testimony ore tenus it is now hereby CONSIDERED, ORDERED, ADJUDGED and DECREED by the Court as follows:
That Elaine A. Walker is hereby ordered to pay over to Nettie A. Amason the sum of Seven Thousand Dollars ($7,000.00), which sum represents a part of the proceeds of a savings account which was held jointly in the name of Elaine A. Walker and Nettie A. Amason until such time as Elaine Walker withdrew the funds contained therein and the additional sum of Seven Hundred Twenty and no/100ths Dollars ($720.00) which represents the sum of monies found due Nettie Amason by the Deputy Register in his Report of February 21, 1975, that the balance of funds in the hands of Elaine A. Walker in the amount of Seven Thousand Ninety and 77/100ths Dollars ($7,090.77) together with any interest accrued thereon from October 24, 1977 shall be paid over by Elaine A. Walker to the successor Trustee named herein to become a part of the trust estate.
EIGHT: Elaine A. Walker is hereby removed as the Trustee of the Testamentary Trust of Thomas R. Amason, Deceased, and this Court hereby appoints Honorable Harold Goings to serve as successor Trustee of said Trust. Said successor Trustee is hereby directed by this Court to pay the sum of TWO HUNDRED DOLLARS ($200.00) per month unto Nettie A. Amason for her support and maintenance until said monthly payment, within the sound discretion of said successor Trustee, becomes inadequate or excessive due to changed circumstances.

Mrs. Walker’s motion for a rehearing was thereafter denied and this appeal followed.

In effect this appeal is based upon dissatisfaction with (1) the removal of Mrs. Walker as trustee, and (2) the treatment of those funds that were once part of the joint savings account. We will discuss these areas of controversy separately.

Removal of Trustee

The removal of a trustee has long been established as a matter which rests in the sound discretion of the trial court. Our scope of review is therefore limited to determining whether the court has abused its discretion. Ingalls v. Ingalls, 257 Ala. 521, 59 So.2d 898 (1952); Ex parte Jonas, 186 Ala. 567, 64 So. 960 (1914); 90 C.J.S. Trusts § 234 (1955) at 205.

Mrs. Walker argues that the court abused its discretion in removing her for grounds not found within Code of 1975, § 19-3-211. We do not find this to be the case. Section 19-3-211 states inter alia that “the circuit court may remove any trustee who has violated or threatened to violate his trust; ... or who for any cause, is an unsuitable person to execute the trust . . . .” This statute has bee,n held to be merely a declaration of the law as it existed when that statute was enacted and not a limitation upon the power of a court to remove trustees. Ingalls v. Ingalls, supra; First National Bank v. Ingalls, 257 Ala. 536, 59 So.2d 914 (1952); Ex parte Jonas, supra. Mrs. Walker then would have us find an abuse because of the insufficiency of the grounds for removal enumerated in the decree: “change of the residence and living habits and requirements of Nettie T. Amason. . .” We must agree with the appellant that these grounds are insufficient in themselves. The removal of a trustee is such a drastic action that it should be taken only when the estate is actually endangered and intervention is necessary to save trust property. Ingalls v. Ingalls, supra; Chambers v. Mauldin, 4 Ala. 477 (1842). Examples of such instances may be found in 90 C.J.S. Trusts § 232 (1955) and 76 Am.Jur.2d, Trusts § 130 (1975). Because the decree is not justified by the stated grounds we might find an abuse of discretion warranting reversal here were we not bound to search further. Our review of such actions however is not restricted to the four corners of the decree, and we determine from the record if there is sufficient cause for removal of the trustee. In effect we must uphold the decree if it is correct, even if those reasons the trial court gave for its issuance are incorrect. Staub v. Alabama Power Co., 350 So.2d 386 (1977); Garrett v. Federal Land Bank of New Orleans, 239 Ala. 191, 194 So. 530 (1940); Shepherd v. Nabors, 6 Ala. 631 (1844).

The Amasons first argue that there is an obligation upon a trustee to actively determine what the needs of the beneficiary are and to act accordingly. From Mrs. Walker’s own testimony it is clear that since October of 1974 she had taken no affirmative action to ascertain the amount of funds necessary for her mother’s support. This, they argue, citing Strawn v. Caffee, 235 Ala. 218, 178 So. 430 (1938); Coker v. Coker, 208 Ala. 354, 94 So. 566 (1922); McDonald v. McDonald, 92 Ala. 537, 9 So. 195 (1891) was a failure to exercise discretion and is ample reason for her removal as trustee. We disagree. In Ingalls v. Ingalls, supra, we had occasion to speak to such a situation and held that “[t]he mere fact that the [trustee] Bank took no affirmative steps to inquire whether distribution to the [minors] was needed does not justify its removal as a trustee, especially where the record falls far short of showing that the minor beneficiaries suffered in any way because it failed to take such action.” The cases which the appellee cites to us involve situations where the needs of the beneficiary were apparent from the record, as in Coker v. Coker, supra ; were properly averred so that a prima facie cause of action was set out, as in Strawn v. Caffee, supra ; or were unnecessary to the outcome of the case because the trustee had asserted — contrary to the trust — that the beneficiaries were not entitled to anything during his lifetime despite their claims, as in McDonald v. McDonald, supra. These cases may further be distinguished from the instant case, however such would be surplus-age. The holding in Ingalls v. Ingalls, supra applies a fortiori here where the record, far from showing that the beneficiary suffered from the lack of inquiry, i. e., that she was in need, shows affirmatively that Mrs. Amason did not lack for the necessities, and indeed enjoyed some of the luxuries available to an eighty-year-old woman. Though she did not possess the funds she desired for travel, and there is no evidence this desire was made known to her trustee, Mrs. Walker, it is clear that Mrs. Amason had accumulated over $800.00 in savings from her social security checks alone.

The Amasons argue also that removal was proper because the interest Mrs. Walker had in the trust estate was adverse to the interests of the beneficiary. This is so, it is maintained, because that portion of the estate not expended for the comfort and support of Mrs. Amason will pass , on her death to Mrs. Walker and her brothers and sisters. We hold, however, that this conflict does not justify the action of the court in removing Mrs. Walker as trustee. Doubtless the testator was aware of that conflict of interest when he named his daughter to the position of trustee for his widow. In such a case we will observe the desires of the testator in the appointment of a trustee, even though he may see fit to appoint one whose interest in the estate is such that a court itself would not appoint that person. See In re Weller’s Estate, 267 Ill. 230, 108 N.E. 306 (1915). While we might detect from the record a spirit of family disharmony, we do not find — and the Amasons do-not contend — that there exists such hostility that a removal of the trustee is required or justified. See e. g., McDonald v. McDonald, 92 Ala. 537, 9 So. 195 (1891); 90 C.J.S. Trusts § 232 C.(2) (1955).

Because it is apparent that neither the record nor the trial court’s order justifies the drastic action of removal of the trustee and in ordering the successor trustee to pay $200.00 a month to Mrs. Amason, we hold that the court abused its discretion in doing so. Such an abuse requires a reversal.

This leads us to that area of controversy surrounding the joint savings account.

Savings Account Distribution

Mrs. Walker argues that the trial court also erred in its division of those funds which had made up the joint savings account. By that division $7,000.00 was awarded to Nettie T. Amason. The balance ($2,632.81) along with any interest that had accrued was to become a part of the trust estate. We agree that there was reversible error in the division and distribution of these funds. This follows not necessarily because the court’s action was inconsistent with the contentions of the parties, i. e., each side claimed ownership of aii the funds, but because the amounts distributed to Nettie Amason and the trust estate were not supported by the record.

It is well-settled that where the trial court omits to make a direct finding on a certain matter, and yet the decree rendered necessitated such a finding, it will be presumed that the finding was made unless, of course, the finding would be clearly erroneous and against the great weight and preponderance of the evidence. See Acker v. Protective Life Ins. Co., 353 So.2d 1150 (Ala.1977); White v. White, 350 So.2d 326 (Ala.1977); Aikin v. Murphy, 282 Ala. 538, 213 So.2d 383 (1968).

In this case Mrs. Walker contended that the savings account was composed totally of funds which she was empowered to hold as trustee for her mother, Nettie T. Amason, under the terms of the will. The burden of establishing such a trust is upon him who seeks it. Osborn v. Empire Life Ins. Co. of America, 342 So.2d 763 (Ala. 1977); Westcott v. Sharp, 256 Ala. 418, 54 So.2d 758 (1951). Mrs. Amason, on the other hand, contended that the sole title to the funds was in her. On the facts of this case Mrs. Amason’s theory would depend upon the court’s finding that her husband had made a gift to her of that portion of the account made up of funds belonging to the testator. She had the burden of establishing the fact of gift by clear and convincing proof. Vinson v. Vinson, 262 Ala. 388, 79 So.2d 31 (1955); DeMouy v. Jepson, 255 Ala. 337, 51 So.2d 506 (1951). Our review of the record discloses that neither of the parties carried their respective burdens. The record establishes that funds were placed into the savings account belonging to both the testator and his wife. If the account did not constitute a trust, or a gift, then the funds remained the property of the contributors. When the testator died, his portion would have become part of the trust estate under his will while title to the other portion would have remained in Nettie T. Amason. Unfortunately, however, the record does not support the trial court’s actual monetary apportionment of the funds. It would appear from the facts that the greater portion of the funds was contributed by the testator, yet the decree apportions the funds so that the greater portion would belong to the appellee, Mrs. Amason. This apportionment is not supported by the record and, accordingly, we must reverse and remand with directions that any division be supported by facts enabling the trial court to accurately determine the amounts owing to both the trust fund and Nettie T. Ama-son.

REVERSED AND REMANDED WITH DIRECTIONS.

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