author: ROBERTSON, Justice LEE, Justice,

text:
    Bill FOSTER et al. v. Bobby FOSTER, Administrator of Estate of Eddie Foster, Deceased, et al.
    No. 48850.
    Supreme Court of Mississippi.
    March 2, 1977.
    Laurel G. Weir, Philadelphia, for appellants.
    Wilburn Davis Moore, Jr., Philadelphia, for appellees.
    Before GILLESPIE, C. J., and ROBERTSON and LEE, JJ.
   ROBERTSON, Justice

for the Court:

The Petition for Rehearing filed on behalf of appellee, Willie Fort Foster, is granted, and the opinion, reversing the decision of the Chancery Court of Neshoba County, is withdrawn. The following opinion, affirming the judgment of the Chancery Court, is substituted therefor:

Eddie Foster died intestate in Neshoba County, Mississippi, on September 14, 1973. Bobby Foster, claiming to be a son of Eddie, filed a Petition for Letters of Administration in the Chancery Court of Neshoba County, and letters were granted to him.

Willie Fort Foster petitioned the court to adjudge him to be the sole and only heir at law. He alleged that he was the son of Eddie Foster and Lena Seals, who were ceremonially married on December 26,1934, and that he was born to that marriage on May 12, 1942. Willie Fort Foster attached a copy of the marriage license as issued and recorded in Winston County, and a certified copy of his birth certificate, to his petition.

Bobby Foster and Billy Foster, who claimed to be the sons and sole heirs at law of Eddie Foster by virtue of an alleged common law marriage to Laura Wells, filed an answer and cross-bill.

Bill Foster, John Foster and Dell Donaldson, the brothers and sister of Eddie Foster, intervened and denied that Billy Foster, Bobby Foster and Willie Fort Foster were Eddie’s legal heirs, and averred that they were the sole and only heirs at law cf Eddie Foster.

After a full trial (the record consisting of three volumes containing 539 pages of testimony and documentary evidence), the chancellor rendered this opinion:

“The Court, after reading and considering the pleadings and hearing the testimony and examining the exhibits to the testimony and listening to the argument of counsel, is of the opinion that the Intervenors, Bobby Foster and Billy Foster, failed to prove a common law marriage of their mother, Laura Wells, to Eddie Foster; therefore, they are not heirs-at-law of Eddie Foster. The Court further finds, and is of the opinion, from the evidence presented, that Willie Fort Foster is the son of Eddie Foster and Lena Seals Foster and is Eddie Foster’s sole and only heir-at-law. The Court is of the further opinion that the present administrator should file a final accounting and that Willie Fort Foster should be appointed as administrator of the estate.”

In the decree, the court found and adjudicated that:

“[T]he Petitioner, Willie Fort Foster has presented sufficient evidence to prove the allegations of his petition and the said Willie Fort Foster is hereby ordered, adjudged and decreed to be the sole and only heir at law of Eddie Foster, deceased.”

The court then dismissed the cross-bill filed by Bobby Foster and Billy Foster, and the cross-bill filed by Bill Foster, John Foster, and Dell Donaldson.

Bobby Foster and Billy Foster did not appeal from the ruling of the court, but Bill Foster, John Foster and Dell Donaldson, the brothers and sister of Eddie Foster, deceased, have appealed and contend in this Court that the finding of the chancellor was against the overwhelming weight of the evidence.

Willie Fort Foster, in support of his claim, introduced into evidence the marriage license of Eddie Foster and Lena Seals issued on December 15, 1934, and showing the rites of matrimony performed on December 26, 1934, by J. W. Byrd, a minister of the Gospel.

He also introduced into evidence a delayed birth certificate sworn to by Eddie Foster and Lena Seals Foster before the Neshoba County Chancery Clerk on September 16, 1954, stating under oath that they were the father and mother, respectively, of Willie Fort Foster, who was born to them on May 12, 1942; and his school records showing Eddie as his father and Lena as his mother. He also introduced as an exhibit a warranty deed to Richard E. Winstead signed by Eddie Foster and Willie F. Foster, and acknowledged by “Eddie Foster and his son, Willie F. Foster”, on December 17, 1965, before Estille B. Akins, Notary Public.

It was in evidence that Lena Seals Foster died in 1956.

Bill Foster, John Foster and Dell Donaldson, the brothers and sister of Eddie Foster, were allowed to testify in spite of the objections to their testimony as violating the dead man’s statute. They testified that Willie Fort Foster was the child of Armedia Hudson, an unmarried woman. It was undisputed that Eddie Foster was the father, in fact, all witnesses admitted the paternity of Willie Fort Foster. All witnesses admitted that Willie Fort Foster had lived with Eddie and Lena since he was IV2 years of age, that he called Lena “mother” and Eddie “daddy”, and that they called him “son”. It was admitted that Eddie and Lena fed, clothed, educated and supported Willie Fort Foster as their son.

This cause was tried on May 29 and 30, 1974, almost twenty years after the birth certificate was executed and sworn to by Eddie and Lena on September 16, 1954. Lena’s mouth was sealed when she died in 1956, and Eddie’s when he died in 1973.

Armedia Hudson, who Bill and John Foster and Dell Donaldson claimed was the natural mother of Willie Fort Foster, had passed away. Her mouth was sealed. No birth certificate was offered to show that Willie Fort Foster was the child of Armedia Hudson, nor was any birth certificate offered to show that Armedia Hudson even gave birth to any child on May 12, 1942 (Willie Fort Foster’s birthday).

The chancellor during this two-day trial observed the demeanor of all witnesses on the stand, considered their interest in the outcome of this law suit, and determined how much of the testimony of each witness was credible and how much was not credible.

The chancellor, of course, considered Mississippi Code Annotated section 41-57-9 (1972), which provides:

“Any copy of the records of birth, sickness, or death, when properly certified to by the state registrar of vital statistics to be a true copy thereof, shall be prima facie evidence in all courts and places of the facts therein stated.”

The chancellor took into consideration this Court’s consistent pronouncements for more than 100 years that one of the strongest presumptions known to the law is the presumption that a child born in wedlock is a legitimate child. Herring v. Goodson, 43 Miss. 392 (1870).

The latest pronouncement by this Court on this subject was made in Dixon v. Curtis, 340 So.2d 722 (Miss.1977). Just a month ago, this Court said:

“The presumption that a child born in wedlock is a legitimate child is one of the strongest presumptions known to the law, Krohn v. Migues, 274 So.2d 654 (Miss.1973), and may be rebutted only by proof beyond a reasonable doubt that the husband is not the father. Stone v. Stone, 210 So.2d 672 (Miss.1968). After fifty years the frail memorials of human memory will rarely be accepted to rebut the presumption of legitimacy arising from documented records of marriage and birth certificate.” 340 So.2d at 727.

We are of the opinion that the chancery court’s decision that Willie Fort Foster was the sole and only heir-at-law of his father, Eddie Foster, deceased, was supported by substantial evidence.

The decree of the chancery court is, therefore, affirmed.

This case was considered by a conference of the Judges en banc.

AFFIRMED.

PATTERSON and INZER, P. JJ., and SMITH, SUGG, WALKER and BROOM, JJ., concur.

LEE, J., and GILLESPIE, C. J., dissent.

LEE, Justice,

dissenting:

The only proof offered by Willie Fort Foster that he is the natural born child of Lena Seals Foster is a delayed birth certificate (delayed twelve years after the child’s birth), school records which simply list Eddie Foster as his father, and Lena Foster as his mother, and a warranty deed executed to Winston E. Winstead on December 17, 1965 by Eddie Foster and Willie Fort Foster in which the acknowledgment simply recited “The within named Eddie Foster and his son, Willie Fort Foster, who acknowledged that they signed . . . .”

This evidence was sufficient to make out a prima facie case that Lena Seals Foster was the natural mother of the child.

Appellants introduced six (6) witnesses who testified that Lena Seals Foster has had no children, two (2) witnesses who testified that Lena was not pregnant in the nine (9) months prior to Willie Fort Foster’s date of birth, three (3) witnesses who testified that Lena was approximately sixty (60) years old at the time of Willie Fort Foster’s birth, two (2) witnesses who testified that Armedia Hudson was seen pregnant prior to Willie Fort Foster’s birth, and one witness who testified that she saw Armedia with the baby (Willie Fort Foster) more than once after his birth. There was also testimony that a child lived with Eddie Foster and Lena Seals Foster from the age of approximately one and one-half (1%) years, and four (4) witnesses testified that the child reared in the home of Eddie Foster and Lena Seals Foster was the same child born to Armedia Hudson. The delayed birth certificate for Willie Fort Foster falsely reflected that four (4) children were born to Lena Seals Foster, and it further reflected the age of Lena to be thirty-eight (38) and the age of Eddie Foster to be twenty-nine (29) years on the date of the birth of Willie Fort Foster.

In my opinion, appellees’ case entirely disintegrated when the above evidence was introduced and no attempt was made to rebut same. It is true that one of the strongest presumptions is the presumption that a child born in wedlock is a legitimate child, but this presumption applies to a child born to a mother and not to the illegitimate child of the father. The father may have a dozen children born of other women, and none to his wife, but there would be no presumption that because he was married those children were born to his wife.

In Bryant v. Thrower, 239 Ark. 783, 394 S.W.2d 488 (1965), a twenty-five-year delayed birth certificate bearing the signature of Eva Wilson, wife of A. R. Wilson (purpose to show Lois Wilson Bryant to be the child of A. R. Wilson), was held to be prima facie evidence that the facts stated therein were true. Testimony of several neighbors was to the effect that Lois Wilson Bryant was the child of A. R. Wilson, but numerous witnesses testified that Lois Wilson Bryant was neither the born child nor adopted child of A. R. Wilson and Eva Helen Wilson, and that they took Lois home and reared her from infancy. The chancellor found that the certificate made out a prima facie case which was overcome by the testimony of Eva Wilson’s brother and others. The Supreme Court of Arkansas affirmed the lower court in such holding and that she had no claim under the will of A. R. Wilson as a pretermitted child.

While I feel that Eddie Foster and Lena Seals Foster probably wanted Willie Fort Foster to have their property and while it may be said that Willie Fort Foster is morally entitled to it, the proof in this case is overwhelming that he was not the natural son of Lena Seals Foster and, in my opinion, appellants proved beyond reasonable doubt that he is not Lena’s son. The only way he could take property from them was either by adoption or will. Neither of those procedures was followed, and I cannot legitimate him by a spurious birth certificate in order that he may inherit from those people who evidently loved, and who certainly cared for and reared him. I think the case should be reversed and judgment rendered for appellants, and I, therefore, dissent from the majority opinion.

GILLESPIE, C. J., joins in this dissent.


source: Caselaw Access Project

author: ROBERTSON, Justice,

license: Public Domain

text:
    Victor Wayne MORAN v. STATE of Mississippi.
    No. 49610.
    Supreme Court of Mississippi.
    April 6, 1977.
    Jimmy D. McGuire, Otto A. Wusnack, Gulfport, for appellant.
    A. F. Summer, Atty. Gen. by Pete J. Cajoleas, Special Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, ROBERTSON and BROOM, JJ.
   ROBERTSON, Justice,

for the Court:

Victor Wayne Moran was indicted, tried and convicted in the Circuit Court of the First Judicial District of Harrison County, Mississippi, of the murder of Bessie D. Myers. The court sentenced Moran to life in the state penitentiary. Moran appeals.

On September 29, 1974, Moran, aged 20, and his 15-year-old girl friend, Vicki Galin, went to visit 84-year-old Bessie Myers, whom Moran had known all of his life. Mrs. Myers lived across the street from Moran’s parents. Moran asked Mrs. Myers if she knew of a place that he and his girl friend could stay until he found a job. Moran had been out of work for about a month, and he and his girl friend wanted to get married.

Mrs. Myers got a neighbor, Mrs. McKay, to drive Moran, Vicki and Mrs. Myers to Marine Life where her grandson was working. The grandson, Robert “Butch” Johnson, owned an apartment building and Mrs. Myers prevailed upon him to let Moran and his girl friend stay there with him and his tenant couple, Grace and Charles Craig, until Moran located a job. Mrs. Myers also gave Moran $2 for cigarettes. That night, September 29, 1974, the Craigs slept in one bedroom, Moran and his girl friend in the other, and Johnson on the couch in the living room.

The next morning, around 7:00 a. m, Johnson and Charles Craig left for work. About 10:00 a. m., Moran left the apartment supposedly to look for a job. According to Moran, he walked to the unemployment office. Just before he arrived there, he testified that he picked up a smashed Coke can which was on the sidewalk and in throwing it away cut his finger. He stated that he then entered the unemployment office, sat down, and began wiping the blood from his cut finger on his pants leg. He left the unemployment office a short time later and went to his mother’s home, which was located approximately 50 yards from Mrs. Myers’ home. Moran had coffee with his mother and then left to go to Mrs. Myers’ house without advising his mother of his plans.

Moran took the stand in his own defense and testified that he went over to Mrs. Myers’ home about 11:00 a. m. on September 30, 1974. Moran continued:

“And then she was listening to Billy Graham on the radio. So I wanted to look through the Bible so I asked her if she had a Bible and I could look through it. And, uh, we started talking about the Bible. And then she said after awhile she got tired and wanted to go back and lay down. So I said I’d leave. And then I handed her the Bible through the screen door, and, uh, as she turned, she, uh, as she turned around she started to fall. And I opened the screen door and, uh, tried to keep her from falling. And that’s when I fell with her, and, uh, when she fell she hit her head. And, uh, I seen blood so I just panicked and I ran.”

Moran returned to his apartment where Grace Craig and Vicki questioned him about the blood on his pants legs. Moran didn’t answer them, but instead got up and changed his trousers and washed his face, hands and arms. He told no one about Mrs. Myers’ fall and seeing her bleeding profusely-

That afternoon about 6:00 p. m., Butch Johnson, Mrs. Myers’ grandson, returned to the apartment and told them that he had some bad news, that his grandmother, Mrs. Myers, was dead.

The next day, October 1st, Detective Donald Everett of the Gulfport Police Department was given the blue jeans that Moran was wearing when he visited Mrs. Myers the day before, by Grace Craig, and he sent these blue jeans to Mississippi Crime Laboratory for examination. When shown the blue jeans at the trial, Detective Everett testified that they were in the same condition as when he received them on October 1st, except for the cuts in the lower pants legs and cuffs. Mr. Meredith A. Bass of the Mississippi Crime Laboratory testified that he cut patches from Moran’s blue jeans so that they could be properly examined and tested in the laboratory. He made black marks on the blue jeans where human blood was found and where he had cut out swatches for examination. Bass testified that these tests revealed human blood on both legs of Moran’s blue jeans below the knee, and human blood on the raveled cuffs of the blue jeans. There was blood on the toe of one of Moran’s steel-toed shoes, but this was not identified as human blood.

The only assignments of error were that: The trial court erred in allowing the State to introduce into evidence the pants after the same had been cut, giving a false impression which was inflammatory and prejudiced the jury against the accused.
The jury verdict was against the overwhelming weight of the evidence and the trial court erred in refusing to grant motion for a new trial.

The Supreme Court of Missouri was confronted with the same problem of trousers that had been cut in State v. Sprout, 365 S.W.2d 572 (Mo.1963). The Court reached the conclusion that the trousers were properly admitted into evidence, in this way:

“Defendant contends his trousers should not have been received in evidence because they were not in the same condition as when seized by the officers. Lieutenant Rhodes, the State’s expert witness on blood types, testified that he had cut some areas out of defendant’s trousers and shirt in order to make the necessary laboratory examination to determine whether the spots involved were human blood stains, and the type of blood involved. The two articles were positively identified as defendant’s trousers and shirt. Defendant so admitted to the officers. We quote the following from 32 C.J.S., Evidence, § 607: ‘In order that an article may be so introduced it must be satisfactorily identified, and it must also be shown to the satisfaction of the court that no such substantial change in the article exhibited as to render the evidence misleading has taken place. However, it is not necessary that the article be identically the same as at the time in controversy. It is unnecessary to show an absence of tampering on the part of every person through whose hands the article has passed; as long as the article can be identified it is immaterial in how many or in whose hands it has been.’ We conclude defendant has failed to establish that his trousers should have been excluded on the ground assigned.”
365 S.W.2d at 575.

In a case where a jumper had been supposedly washed and the blood stains removed, we ruled that the jumper was properly admitted into evidence. Triplett v. State, 159 Miss. 365, 132 So. 448 (1931).

In Ivey v. State, 232 So.2d 368 (Miss.1970), this Court ruled that a torn shirt which had been laundered was properly admitted into evidence as aii exhibit.

The trial court did not abuse its discretion in admitting into evidence Moran’s trousers which had not been substantially altered or changed.

The second assignment of error, that the verdict was against the overwhelming weight of the evidence, is without merit.

Dr. Ricardo Lopez, the pathologist who performed an autopsy on the body of Bessie Myers on October 1, 1974, testified that Mrs. Myers died from terminal shock caused by multiple abrasions, lacerations, hemato-mas, and six skull fractures. He testified positively that in his opinion these multiple injuries could not have been caused by a simple fall.

Rather than being against the overwhelming weight of the evidence, the jury’s verdict is in accord with the overwhelming weight of the evidence. The jury was fully justified in finding the defendant guilty beyond a reasonable doubt and to a moral certainty.

The conviction of murder and the sentence to life imprisonment are, therefore, affirmed.

AFFIRMED.

GILLESPIE, C. J., PATTERSON and IN-ZER, P. JJ., and SMITH, SUGG, WALKER, BROOM and LEE, JJ., concur.


text:
    Larry MUSGROVE v. STATE of Mississippi.
    No. 49626.
    Supreme Court of Mississippi.
    April 6, 1977.
    Deavours, Weems & Gilchrist, W. M. Deavours, Laurel, for appellant.
    A. F. Summer, Atty. Gen., by John C. Underwood, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, ROBERTSON and BROOM, JJ.
   ROBERTSON, Justice,

for the Court:

Larry Musgrove was indicted on March 18, 1976, in the Circuit Court of the Second Judicial District of Jones County for the armed robbery of Sam Garbo, on December 16, 1975.

A day later, March 19, 1976, Honorable William M. Deavours, a very capable and experienced trial lawyer of the Laurel bar, was appointed by the court to represent Musgrove.

On March 22, 1976, Musgrove was arraigned and, in the presence of and with the consent of his attorney, pleaded “Not Guilty”.

Later on that same day, Musgrove, still represented and advised by his counsel, requested the court to allow him to change his plea from “Not Guilty” to “Guilty”. The court conducted an extended examination of Musgrove to determine whether the plea of guilty was being made freely, voluntarily, intelligently and advisedly. Mus-grove answered the court that he had talked over the change of plea with his parents and with his attorney; that he had not been promised anything, nor threatened, nor abused, nor mistreated in any way. He further answered that he fully understood the consequences of a guilty plea, that he knew that he could be sentenced to the penitentiary for life, and that he was pleading guilty freely and voluntarily-

Relying on the truthfulness of Mus-grove’s answers, the court found that the plea of guilty was freely, voluntarily, intelligently, and advisedly made, and the court thereupon allowed defendant Musgrove to change his plea from “Not Guilty” to “Guilty”. The court deferred sentencing until April 12, 1976.

On April 6,1976, Musgrove filed a Motion to Withdraw his Guilty Plea, and to again change his plea to “Not Guilty.” On April 13, 1976, the court conducted an extended hearing on Musgrove’s motion to change his plea from “Guilty” to “Not Guilty”. At this hearing, Musgrove testified that the reason he wanted to change his plea from “Guilty” to “Not Guilty” was that on December 15, 1976, immediately after the crime had been committed and Garbo had been robbed of $700, that Richard McDonald, who actually committed the robbery, came up to him and threatened him in this way:

“He said, ‘You saw what happened, didn’t you?’ I said, ‘Naw, I ain’t seen nothing,’ and then Richard, then he said, ‘If you say anything about it, man, that’s you.’ In other words, he was talking about he would get me, you know. So, like I said, T ain’t seen nothing.’ And he said, ‘This here will keep you quiet,’ and he gave me $190, you know. And after that we walked on up on the corner by the store.
“Q You did or he did?
“A I did. He went up that way, too, you know, right behind me and he threw the wallet up on top of a house in the projects.”

Under cross-examination, Musgrove further testified:

“Q Did you say on December 30th, 1975 at 5:13 p. m. in the Investigative Division of the Laurel Police Department to Capt. Segrest after having been warned of your rights, ‘Me and Robert Earl Andrews were together all day on December 15th, 1975.’ Is that true?
“A Yes, sir.
“Q ‘We were planning to do something to get some money if we had to break into a place.’ Is that true?
“A Yes, sir.
“Q You all were planning to break into a place, if you had to, to get some money.
“A Yes, sir.”

Under further cross-examination Mus-grove testified that he did not tell his parents about this so-called threat, did not tell the investigating officers about the threat, and that he didn’t even mention it to his attorney until March 29, 1976.

At this hearing on his motion to again change his plea, this time from “Guilty” to “Not Guilty”, Musgrove stated that he lied to the court when the court questioned him extensively on his guilty plea, lied to the investigating officers, lied to his parents, and lied to his attorney, but now on April 13, 1976, he was telling the truth.

The court, in its order of April 14, 1976, found:

“The Court, after carefully considering the evidence adduced on behalf of defendant’s motion, as well as hearing the record made at the time the defendant entered his plea of guilty, is of the opinion that such plea was not only made intelligently, freely and voluntarily at a time when defendant fully appreciated the consequences thereof, but, moreover, such plea was advisedly made at a time when he was capably assisted by counsel whose ability has not been assailed.
“The Court acknowledges that the resolution of defendant’s motion involves judicial discretion which should always be exercised in favor of innocence and liberty and in favor of securing a hearing on the merits, but the very case which so clearly enunciates this rule, Lambert v. State, 245 Miss. 227, 147 So.2d 480, is prefaced by the proposition that is equally clear that defendant should be permitted to withdraw his plea of guilty when unadvisedly given. Such is not the case here.
“In conclusion, The Court is convinced that defendant testified truthfully during the evidentiary hearing at the time when the guilty plea was accepted. There is no testimony to the effect that any accomplice involved in the near fatal bludgeoning of the victim threatened harm or injury to the defendant if he did not plead guilty. He made the decision to do so, aided by competent counsel, freely, voluntarily and intelligently, fully appreciating the consequences of so doing.”

The Supreme Court of the United States in Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970), enunciated these tests that must be applied before accepting a guilty plea:

“That a guilty plea is a grave and solemn act to be accepted only with care and discernment has long been recognized. Central to the plea and the foundation for entering judgment against the defendant is the defendant’s admission in open court that he committed the acts charged in the indictment. He thus stands as a witness against himself and he is shielded by the Fifth Amendment from being compelled to do so — hence the minimum requirement that his plea be the voluntary expression of his own choice. But the plea is more than an admission of past conduct; it is the defendant’s consent that judgment of conviction may be entered without a trial — a waiver of his right to trial before a jury or a judge. Waivers of constitutional rights not only must be voluntary but must be knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences.” 397 U.S. at 748, 90 S.Ct. at 1468-69, 25 L.Ed.2d at 756.

It is the opinion of this Court that all of these tests were made and met, that the guilty plea of Musgrove was freely, voluntarily, intelligently and advisedly made, that Musgrove understood fully and completely the consequences of making a guilty plea, and that the court was correct in denying Musgrove the right to change his plea a second time.

The judgment of the lower court, accepting Musgrove’s guilty plea and sentencing him to twenty-five years in the state penitentiary for armed robbery, is affirmed.

AFFIRMED.

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


author: INZER, Presiding Justice,

text:
    ILLINOIS CENTRAL GULF RAILROAD, a Delaware Corporation, and L. J. Madison v. Mrs. Lula B. STEDMAN, Administratrix of the Estate of Henry Clay Stedman, Deceased.
    No. 49270.
    Supreme Court of Mississippi.
    April 6, 1977.

      Gibbes, Graves, Mullins, Bullock & Ferris, Ernest W. Graves, Laurel, for appellants.
    Heidelberg, Woodliff & Franks, Sam E. Scott, Pittman & Nobles, Jackson, Eugene C. Tullos, L. D. Pittman, Raleigh, for appel-lee.
    Before INZER, SUGG and LEE, JJ.
   INZER, Presiding Justice,

for the Court:

This is an appeal by Illinois Central Gulf Railroad and L. J. Madison from a judgment of the Circuit Court of Smith County awarding appellee Mrs. Lula B. Stedman, administratrix of the estate of her deceased husband, Henry Clay Stedman, damages in the amount of $181,316 as a result of a truck-train collision.

Mrs. Stedman brought this suit in the Circuit Court of Smith County seeking to recover damages for the alleged wrongful death of her husband, Henry Clay Stedman. The accident resulting in the injury and death two days later of Mr. Stedman occurred on March 11, 1974, at about 4 p. m. at the southernmost railroad crossing in the Town of Sledge, Quitman County. The truck, owned by Quitman County and driven by Stedman, was struck by a locomotive operated by L. J. Madison. The declaration charged three principal grounds of negligence: (1) The train was traveling at a high, dangerous and unlawful rate of speed in excess of thirty miles per hour in violation of Mississippi Code 1972 Annotated, Section 77-9-237. (2) The train crew failed to properly sound the bell and whistle for the distance, time and place as required by Section 77-9-225, and (3) The failure to erect flashing signals or warnings or to give special warning at the intersection where the accident occurred since the intersection was highly hazardous because of obstruction to vision.

The railroad and its engineer answered and denied the charges of negligence and alleged that the sole proximate cause of the collision was the negligence of Mr. Stedman in failing to stop, look and listen as required by statute.

The evidence is in conflict as to whether the whistle was blown or the bell was rung as required. The train crew testified that the whistle was blown and the bell rung as required and two other witnesses testified to the same effect. Three witnesses, who were in the vicinity of the crossing, testified that they did not hear the whistle or bell. It is contended that their testimony was negative testimony and not sufficient to make a jury issue on this question. However, when this testimony is taken in the light most favorable to the plaintiff, we are of the opinion that the trial court was correct in submitting this issue to the jury.

The testimony relative to the speed of the train is likewise in conflict. Madison testified that the train was traveling at about 35 miles per hour immediately prior to the time that he realized that the truck was not going to stop at the stop sign. He said he immediately took emergency procedures in an attempt to stop, but since the train was 115 — 120 feet from the crossing he was unable to stop. The report of the accident made by the railroad to the Public Service Commission placed the speed of the train at 35 miles per hour. The other crew members placed its speed at from 30 to 35 miles per hour. Other witnesses placed the speed at 40 to 45 miles per hour. The court, over the objection of the defendant, granted at the request of plaintiff, the following instruction:

The court instructs the jury that the statutory speed limit for the train through the Town of Sledge was 30 miles per hour; and if you believe from a preponderance of the credible evidence in this case that the train was traveling at a speed of more than 30 miles per hour and if you further believe from the preponderance of the evidence that the speed of the train was a proximate cause of the accident, then you should return a verdict for the plaintiff.

The giving of this instruction was error and under the circumstances of this case was highly prejudicial. As we view the case, it is a close one on liability. The proof is undisputed that Mr. Stedman drove his truck upon the crossing in front of the approaching train without ever stopping and apparently without looking. The jury could have found from the evidence in this case that the sole proximate cause of the accident was the negligence of Mr. Sted-man. However, this instruction told the jury that if the train was traveling in excess of thirty miles per hour, that the railroad was violating the law and if this was a proximate cause of the accident, then they were bound to find for the plaintiff. We have heretofore held that Section 77 — 9-237, Mississippi Code 1972 Annotated, applies only to steam locomotives and has no application to locomotives operated by diesel or electricity. In New Orleans and N. E. RR v. Burney, 248 Miss. 290, 159 So.2d 85 (1963), we stated:

Insofar as the speed of the train constituting negligence because of its excessive rate is concerned, we do not agree with appellee that Sec. 7782, Miss. Code of 1942, controls. This section was written before there were any diesel electric trains in Mississippi and applied expressly to trains operated by the dangerous agency of steam. The prohibitions in this section relate only to steam powered trains, and the care which the trainmen were required to exercise in the case at bar was that ordinary care imposed by common law duty. The trainmen were under no duty greater than the common law duty to exercise ordinary care under the circumstances and conditions. Calvert v. Mobile & O. R.R. Co., 153 Miss. 866, 121 So. 855; Stapleton v. Louisville & N. R. R. Co., 5 Cir., 265 F.2d 738. (248 Miss. at 308, 159 So.2d at 94).

Appellee contends that this rule was modified in Illinois Central R. R. Co. v. Pilgrim, 220 So.2d 598 (Miss.1969), wherein we stated:

It is true that Section 7782, Mississippi Code 1942 Annotated (1956) technically does not cover the speed of a diesel locomotive. New Orleans & Northeastern Railroad Co. v. Burney, 248 Miss. 290, 159 So.2d 85 (1963). It does set forth in clear and positive language the considered judgment of the Legislature as to a safe running speed for a locomotive and cars through cities and towns.
Section 7782 provides in part:
“Any railroad company having the right of way may run locomotives and cars by steam through cities and towns, at the rate of thirty miles an hour and no more; and the company shall be liable for any damages or injury which may be sustained by any one from such locomotive or cars whilst they are running at a greater speed than thirty miles an hour through any city or town . . . ” (Emphasis added).
The main purpose of this statute was to set a maximum speed limit for locomotives and cars running through cities and towns. From 1857 to 1938, the speed limit was 6 miles per hour, but in 1938 the Legislature increased it to 30 miles per hour.
(220 So.2d at 600).

It is obvious that we did not overrule Burney and the other cases holding that the statute does not apply to any locomotives except steam locomotives. We did say that it was a clear indication of what the Legislature considered a safe running speed, but we did not have involved in Pilgrim an instruction telling the jury that the statutory speed limit was 30 miles per hour and that if the train was exceeding that speed, the railroad was guilty of negligence. It has been many years since this Court held that the statute applied to only steam locomotives and the Legislature has not seen fit to make it apply to other types of locomotives. Since the fixing of the speed limit of trains in a municipality is a matter peculiarly in the province of the Legislature, it is proper for the Courts of this state to abstain from attempting to fix the statutory speed limit for other types of locomotives. Although the trial court did grant another instruction involving speed, it did not in any way cure the defect in the instruction in question. Furthermore, we also note that the record reflects that the instructions on the issue of whether the crossing was unusually hazardous and dangerous are also in conflict.

Appellants also challenge the constitutionality of Section 11-11-5, Mississippi Code 1972 Annotated, the venue statute under which this suit was brought in Smith County. This issue has long since been settled by this Court, the most recent case being Mississippi Power Co. v. Luter, 336 So.2d 753 (Miss.1976), wherein we upheld the constitutionality of the venue statute.

Appellants also urge that the trial court was in error in failing to sustain their motion to dismiss this cause under the doctrine of the forum non conveniens, or in the alternative grant a change of venue. The trial court after hearing testimony on the motion overruled it, although none of the parties or witnesses were residents of Smith County. Although we cannot say that the trial court abused its discretion in this regard, however, on remand the trial court should again consider the motion in light of the testimony given and the circumstances now existing, and if it finds that it is proper to do so, transfer the cause to a more convenient forum.

Appellants also raise the question relative to the amount of the judgment, but since the case must be tried by another jury, we need not comment on the amount of the judgment.

For the reasons stated, this cause must be and is reversed and remanded.

REVERSED AND REMANDED.

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

GILLESPIE, C. J., took no part.


text:
    JACKSON MUNICIPAL AIRPORT AUTHORITY v. Mrs. Bessie Bradshaw WRIGHT, et al.
    No. 49341.
    Supreme Court of Mississippi.
    April 6, 1977.

      Perry, Phillips, Crockett, Morrison & Herring, Robert E. Perry, Jackson, for appellant.
    Butler, Snow, O’Mara, Stevens & Canna-da, Roger C. Landrum, Kenneth W. Barton, Stephen W. Rosenblatt, Jackson, for appel-lees.
    Before INZER, ROBERTSON and SUGG, JJ.
   INZER, Presiding Justice,

for the Court:

This is an inverse condemnation case and is the third appearance of the case before this Court. This controversy began in 1963 when appellee, Mrs. Bessie Bradshaw Wright, filed suit contending that the Jackson Municipal Airport Authority had taken an avigation easement over her property adjoining the airport. In 1966 the Chancery Court of the First Judicial District of Hinds County held that the airport authority had taken an avigation easement without prior eminent domain proceedings and that the landowner was entitled to compensation for such easement to be fixed as of the time of the trial instead of the time of filing the bill of complaint. On appeal we affirmed the finding of inverse condemnation, but reversed holding that the time of taking was the date of the filing of the suit, rather than the time of trial. Jackson Municipal Airport Authority v. Wright, 232 So.2d 709 (Miss.1970).

After remand and before trial, the landowner sold a part of the land to the Mississippi State Highway Commission and the airport authority acquired by condemnation the balance of her property. The chancellor held that due to these two developments, the landowner was not entitled to be paid for the avigation easement. On appeal by the landowner we reversed holding that the landowner had not been paid for the avigation easement and was entitled to be paid and we again remanded for the assessment of damages as of March 1963. Wright v. Jackson Municipal Airport Authority, 300 So.2d 805 (Miss.1974).

After remand the landowner, with permission of the court, filed a supplemental bill of complaint seeking to recover not only for the original taking, but also additional damages because of expansion of the easement due to the increased number of flights and the introduction of larger and noisier aircraft. The authority demurred to the supplemental bill and also filed a plea in bar, both of which were overruled. The chancellor denied an interlocutory appeal and upon an uncontested application by the authority, we granted the appeal.

The question to be decided is whether the owner of the avigation easement must pay the servient landowner additional damages because of increased flights by heavier and noisier aircraft after the date of the original taking.

We held in the first appeal that the airport authority had taken the avigation easement prior to the date of the filing of the suit and compensation of the landowner must be fixed as of the time of the filing of the suit. The avigation easement acquired by the airport was a permanent easement which gave it the right to fly aircraft over the landowner’s property. The easement was not limited to the number or type of aircraft that could be flown over the property. Neither was it limited to any particular portion of the property. In other words, the authority had the right to fly aircraft over any part of the land in question. Whatever may be the rule in other jurisdictions, the rule in this state is that a landowner in a condemnation proceeding, whether regular or inverse, must recover in one proceeding all damages that have resulted or which are reasonably likely to result in the future by virtue of the easement being used for the purpose for which it was granted.

In Mississippi State Highway Commission v. Tomlinson, 223 Miss. 623, 78 So.2d 797 (1955), the highway commission acquired an easement to construct a highway over the land of Tomlinson. Later the commission raised the grade of the highway and the landowner sought to recover damages because of the increased height of the grade. In holding that the landowner could not recover, we pointed out that the commission had not taken additional land, and in merely changing the grade, it was using the easement for the purpose for which it was acquired. We also pointed out in Mississippi State Highway Commission v. Hillman, 189 Miss. 850, 198 So. 565 (1940), that “the compensation awarded the landowner in an eminent domain proceeding is conclusively presumed to include all damages resulting to him from the proper use of the land taken . . ." (189 Miss. at 868, 198 So. at 570) We stated further in Mississippi State Highway Commission v. Tomlinson, supra :

Our decisions find abundant support in the authorities from other jurisdictions. In 29 C.J.S. page 1370, Eminent Domain, Section 328, it is said: “Applying the principles stated above, it is the rule, subject to statutory exceptions, that the owner must recover in one proceeding all the damages which have resulted, or are reasonably likely to result in the future, from a proper construction and operation of the improvement, and no subsequent action will lie to recover items which were or might have been considered in the original proceeding, the presumption being that all proper damages were considered in such proceeding.” The Hillman case, supra, and authorities from seventeen other jurisdictions, are cited in the notes as supporting the above rule. (223 Miss. at 629, 78 So.2d at 799).

Although the landowner has not yet been paid for the avigation easement over her land, the rule announced in Tomlinson governs and she is confined to proof of her damages as of March 1963. In other words, she must recover in the original proceeding the damages that had resulted then or which were reasonably likely to result in the future from the proper use of the easement. This being true, the chancellor was in error in overruling the demurrer to the supplemental bill. It should have been sustained and the judgment will be entered here sustaining the demurrer and dismissing the supplemental bill of complaint. The cause will again be remanded for the sole purpose of assessing damage to the landowner as of March 1963.

This case was considered by a conference of the judges en banc and all concur, except LEE, J., who took no part.

REVERSED AND REMANDED.

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

LEE, J., took no part.


author: GILLESPIE, Chief Justice, SMITH, Justice,

text:
    Clarence C. DAY, Jr., et al. v. GIBRALTAR OIL CORPORATION et al.
    No. 49181.
    Supreme Court of Mississippi.
    April 6, 1977.
    Richard B. Booth, Aberdeen, for appellants.
    Houston, Chamberlin & Houston, Claude A. Chamberlin, Aberdeen, for appellees.
    Before GILLESPIE, SMITH and WALKER, JJ.
   GILLESPIE, Chief Justice,

for the Court:

This suit arose in the Chancery Court of Monroe County. Clarence C. Day and Frank R. Day appeal from that part of a decree adjudging that they had no interest in the oil, gas and mineral royalty under a tract of land. No purpose will be served by describing the voluminous pleadings and how the issue arose.

The facts insofar as necessary to present the question involved are next stated. On December 24, 1928, G. T. and Sara Roberts, owners of a tract of land in Monroe County, executed a warranty deed conveying to C. C. Day a one-half interest in and to all oil, gas and other minerals in, under or upon the land. This mineral deed was recorded in Book 8, page 325 of the Chancery Clerk’s records. Also on December 24, 1928, the Roberts executed to C. C. Day an oil, gas and mineral lease on the same lands for a primary term of five years, with lease providing for a royalty of Vsth of the oil produced and a royalty of $150 per year for each gas well produced. This lease expired not later than December 24, 1932. On February 5, 1938, C. C. Day quitclaimed to L. W. Rea “all of my right, title, and interest in all of the oil, gas and other mineral rights except my oil and gas royalty found in Lease Record 8, page 325 [on the land in question].”

C. C. Day died and devised all of his estate to the appellants, Clarence C. Day, Jr., and Frank R. Day. L. W. Rea subsequently conveyed his entire interest to his wife, Mary Isabella Rea. Appellee’s interest is derived either directly or indirectly from Mrs. Rea. (The style of this case is a misnomer. Actual appellees are George H. Miller, Mrs. Mary Isabella Rea and Ace Rig and Construction Co., Inc.)

The question before the Court is whether (1) C. C. Day reserved any estate in the oil, gas and other minerals in the deed to L. W. Rea dated February 5, 1938, and (2) if so, the quantum of the estate thus reserved.

The rules for construing the mineral deed of C. C. Day to L. W. Rea are stated in Harris v. Griffith, 210 So.2d 629 (Miss.1968), as follows:

In trying to solve this question, we should keep in mind certain well-established principles of construction of contracts. Those applicable here are (1) the deed must be read in the light of the circumstances surrounding the parties when it was executed; (2) that the construction should be upon the entire instrument, and each word and clause therein should be reconciled and given a meaning, if that can be reasonably done; (3) that the main document and that to which it refers must be construed together, (4) that if the wording of the deed is ambiguous, the practical construction placed thereon by the parties will have much weight in determining the meaning
(210 So.2d at 633).

In our opinion the construction we now place upon the exception or reservation in the deed in question is the only possible one consistent with the rule that we must give some meaning to all parts of an instrument. The word “royalty” has had a reasonably well understood meaning for many years and undoubtedly did when the deed in question was executed. We do not find that the reservation is void for uncertainty. The reservation of the royalty meant just what it said. The deed operated to convey the minerals with all executive rights to L. W. Rea with a royalty reserved to the grantor. The amount of the royalty is determined by what is fair and reasonable at the time and place the lease is made. See Oil & Gas Law, Williams & Meyers, Vol. 2, § 339.3, page 219 (Supp.1975).

In Harris v. Griffith, supra, a royalty interest was defined as the right to royalty under existing or future leases, the owner of which has no development right and no executive right. Westbrook v. Ball, 222 Miss. 788, 77 So.2d 274 (1955), and Mounger v. Pittman, 235 Miss. 85, 108 So.2d 565 (1959), recognize that the owner of a mineral fee can create by conveyance or reservation a separate estate in the minerals commonly referred to as a royalty interest. When this term is used in reference to a specific existing lease, royalty will mean that portion of the oil or gas for which the lessee must account to the lessor under the terms of the lease. Oil & Gas Law, Williams & Meyers, Vol. 1, § 301, p, 437 (Supp.1975).

The same treatise at section 301, pages 442 and 443, states that a nonexecutive mineral interest or a right to royalty may be conveyed under existing or future leases and the general rule as there set forth recognizes that a royalty interest may be created prior to the execution of a lease. Volume 2, sections 339, et seq., deal with the rights and duties of the owner of the executive rights in reference to future leases.

In the pleadings appellees recognized that C. C. Day reserved a royalty in the conveyance to L. W. Rea on February 5, 1938, but contended that the royalty thus reserved was limited to one-half of one-eighth of the oil and one-half of $150 per year per gas well as provided in the lease dated December 24, 1928, from the Roberts to C. C. Day. As previously stated, this lease had expired at the time C. C. Day conveyed the minerals to L. W. Rea on February 5, 1938.

It is manifest that C. C. Day intendéd to reserve and did reserve a royalty interest. He had a one-half interest in the minerals and the reservation was sufficient to reserve a one-half interest in the royalties on any future lease of the mineral estate. The December 24, 1928, lease had long since expired at the time of C. C. Day’s mineral deed to L. W. Rea. The parties obviously did not intend to reserve a royalty in a lease that did not exist. The reservation could only apply to future leases. Any other interpretation would be tantamount to saying the parties intended that the words meant nothing.

Appellees rely upon the case of Commerce Trust Company v. Lyon, 284 S.W.2d 920 (Tex.C.C.A.1955), as authority for the proposition that the reservation in the deed from C. C. Day to L. W. Rea was limited to the royalties provided in the lease from the Roberts to C. C. Day dated December 24, 1928. That case is not in point. The reservation in the Texas case specifically retained the royalty interest “in said lease” then existing. The book and page referred to in the reservation in the present case was the book and page where the mineral deed from the Roberts to C. C. Day was recorded, not the lease.

We hold that the reservation in the deed from C. C. Day to L. W. Rea reserved a royalty interest under any future lease executed by the grantee or his successors in title, and that one-half of the royalties provided in such future leases is the quantum of the estate reserved by C. C. Day. We do not have in this case any question concerning whether the present leases executed by the present owner of the estate conveyed to L. W. Rea complied with the duties the lessor owed to the owners of the royalty interest. The decree of the trial court is reversed and judgment entered here adjudging Clarence C. Day, Jr., and Frank R. Day and their successors in title, if any, to be the owners of the royalty interest in any present or future leases executed by the successors in title to the one-half mineral interest conveyed by C. C. Day to L. W. Rea. But the royalty owner does not share in bonus or delay rentals. Mounger v. Pittman, supra.

This cause is remanded for any further appropriate proceedings consistent with this decision.

REVERSED, RENDERED AND REMANDED.

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

SMITH, J., dissents.

APPENDIX

SMITH, Justice,

dissenting:

Dissenting from a conclusion in which eight of my brethren concurred must be thought to require a great deal of temerari-ousness, and it does. In doing so I do not question the validity of the learned dissertation on oil and gas law contained in the majority opinion. My misgivings are addressed solely to the efficacy of the attempted exception contained in the deed given by Day’s predecessor in title to exclude a one-half royalty interest in the minerals from the grant.

Mississippi Code Annotated section 89-1— 39 (1972) is as follows:

A conveyance of quitclaim and release shall be sufficient to pass all the estate or interest the grantor has in the land conveyed, and shall estop the grantor and his heirs from asserting a subsequently acquired adverse title to the lands conveyed.

As stated in the controlling opinion, the title asserted by appellant Day depends upon an exception contained in a deed given by his predecessor in title in 1938 to one Rea, the exception being quoted in full in the opinion.

The granting clause and the attempted exception in the 1938 deed were as follows:

I hereby convey, quit claim, and release unto L. W. Rea all of my right, title, and interest in and to all timber, and all of my right, title and interest in all of the oil, gas, and other mineral rights except my oil and gas Royalty found in Lease Record 8 Page 325 on the following described lands. .

It is my view, humbly asserted here, that the description of the mineral estate, right, title or interest attempted to be excluded by the grantor, Day, was not described with sufficient clarity or precision quantitatively or qualitatively to be effective so as to cut down the grant of Day’s total interest, including mineral interest. That being so, the exception, not the grant, failed.

The general rule is quoted with approval in Day v. Pounders, 231 Miss. 63, 94 So.2d 620 (1957), as follows:

If there be a patent ambiguity in the description of land excepted from a conveyance, the exception, not the deed, is void for uncertainty. (Citing Beasley v. Beasley, 177 Miss. 522, 171 So. 680, 683 and McAllister v. Honea, 71 Miss. 256, 14 So. 264.) [231 Miss. at p. 70, 94 So.2d at 623].

Since the transaction occurred almost forty years ago and apparently the whole matter has lain quiescent since that time and until comparatively recent mineral activities began in the area, extrinsic evidence as to intention is lacking.

It is a principle of universal application that grants are liberally, exceptions strictly, construed against the grantor. 8 R.C.L. 1094; 14 Tex.Jur. 926; Curdy v. Stafford, 88 Tex. 120, 30 S.W. 551; Barker v. Lashbrook, 128 Kan. 595, 279 P. 12; Bolton v. Dyck Oil Co., Tex.Civ.App., 114 S.W.2d 299; Jones v. Sun Oil Co., Tex.Civ.App., 110 S.W.2d 80; Higdon v. Nichols, 204 Ky. 56, 263 S.W. 665.
(Texas Co. v. Newton Naval Stores, 223 Miss. 468 at 484, 78 So.2d 751 at 757).

An exception must be as definite as is required to convey title; and if it is not the whole property passes. Richardson v. Marqueze, 59 Miss. 80, 42 Am.Rep. 353; McAllister v. Honea, 71 Miss. 256, 14 So. 264; Nunnery v. Ford, 92 Miss. 263, 45 So. 722; Beasley v. Beasley, 177 Miss. 522, 171 So. 680; and Ates v. Ates, 189 Miss. 226, 196 So. 243.

The intention of the parties to a conveyance of an interest in real estate, whether it is a mineral interest or some other interest, is to be gathered from the instrument itself and may not be gathered from surmise or conjecture as to what the parties probably intended. Construing the grant strongly against the grantor, Day, and the exception strictly against him, as we must under the authorities, it is impossible to say with that degree of certainty which the law requires that it was his intention to retain a one-half royalty interest in the minerals or that it was understood by Day’s grantee, L. W. Rea, that the attempted exception would have the effect of depriving him of a one-half mineral royalty in the land.

      . See Appendix.


author: MADDOX, Justice.

text:
    NATIONAL INDEMNITY COMPANY, a corporation, et al. v. BANKHEAD FOREST INDUSTRIES, a corporation, et al.
    SC 1906.
    Supreme Court of Alabama.
    Feb. 25, 1977.
    Rehearing Denied April 22, 1977.
    Elbert H. Parsons, Jr., Huntsville, for appellants.
    Norman W. Harris for Harris, Harris, Shinn & Harris, Decatur, for appellees.
   MADDOX, Justice.

This is an appeal from a decree in a declaratory judgment action which was instituted for the purpose of obtaining judicial determinations as to the coverage, applicability, and priority of payment of four insurance policies issued by two different companies. Plain tiff-appellee, Bituminous Casualty Corporation issued three of the policies. Defendant-appellant, National Indemnity Company, issued the other policy.

The parties entered into stipulations of all pertinent facts. The four policies were made part of the stipulation. The facts out of which this suit arose are as follows: On June 19, 1972, plaintiff-appellee, Bankhead Forest Industries, and defendant, Marshall Frost, entered into a lease agreement whereby Frost leased to Bankhead a 1967 Kenworth tractor, s/n 204298. The amended lease agreement provided, among other things, that Frost would furnish such additional vehicles as Bankhead might reasonably request and that Frost would temporarily substitute another vehicle during the repair of any vehicle which might be rendered unserviceable. Paragraph 7(b) of the lease agreement required Frost as lessor to purchase and to maintain in full force and effect a policy or policies of public liability insurance for the protection of the lessee and lessee’s drivers with limits of not less than $100,000 for injury or death of one person and $300,000 for injury to or death of all persons killed in the same accident. Frost provided the requisite amount of insurance by means of a combination of two policies, one being a primary policy issued by Bituminous (No. 12369), and the other an excess policy issued by National. Bituminous policy No. 12369 and the National policy both listed the 1967 Kenworth tractor described in the lease in their schedule of automobiles. It is stipulated in the lease in their schedule of automobiles. It is stipulated that both policies insured the 1967 Kenworth tractor and that the lease agreement was in full force and effect at all times herein pertinent.

In July, 1973, the Kenworth tractor was involved in a collision and was heavily damaged. The Kenworth tractor remained inoperable from the date of the accident until December 17, 1973. Pursuant to the provisions of the lease agreement, Frost furnished Bankhead a 1972 GMC tractor while the Kenworth tractor was being repaired. Bankhead temporarily used it as a substitute for the Kenworth tractor. While the 1972 GMC tractor was being operated by Theo Jackson Lovett, a Bankhead employee, who was acting within the line and scope of his employment, the GMC tractor was involved in a collision with an automobile driven by Nina G. Morrow. In the accident Mrs. Morrow sustained personal injuries and her minor child, Billy Joe Morrow, was killed. Charles J. Morrow, on behalf of his minor child, and wife, and Nina Morrow, individually, filed actions against Bankhead and Lovett in the circuit court of Morgan County. A $40,000 judgment was rendered in favor of Charles Morrow which included both claims. In addition, Mrs. Morrow was awarded a judgment of $10,000.

Bituminous, in the action brought by Charles Morrow, admitted that there was coverage under Bituminous policy No. 12369. Accordingly, Bituminous paid both judgments and then proceeded to determine its rights to contribution or reimbursement from National Indemnity Company. National denied coverage on the ground that the 1972 GMC tractor was owned by Marshall Frost, who was one of the named insured, and that this prevented the GMC tractor from being a “temporary substitute automobile” as defined in Bituminous policy No. 12369, and therefore, no coverage was available under the National excess policy.

National filed a counterclaim alleging that at the time of the collision between the GMC tractor and the Morrow automobile there was in full force and effect Bituminous policy No. 12370, which was issued to Marshall Frost as the named insured. This policy had limits of $10,000 per person and $20,000 per accident and listed the 1972 GMC tractor as one of the insured automobiles. National further alleged that Bituminous had issued a general liability policy (No. 726121) to Bankhead covering its entire fleet of vehicles. Bituminous policy No. 726121 had limits of $100,000 per person and $300,000 per occurrence. National contends that these three Bituminous policies provide primary coverage and that the National policy provides only excess coverage after all limits of liability of the primary policies had been exhausted.

The trial court rendered a final judgment and its “Findings of Facts & Memorandum Opinion” reads, in pertinent part:

“The Court further finds as a conclusion of law that the vehicle involved in the accident of September 6, 1973, was a ‘temporary substitute automobile’ within the meaning of the insurance policy issued by National Indemnity Company to Bankhead Forest Industries. Therefore, the Court does hereby declare that the defendant, National Indemnity Company is obligated by the terms of its policy of insurance to extend coverage to Bank-head Forest Industries for the automobile accident occurring on September 6, 1973 between Theo Jackson Lovett and Billy Joe and Nina G. Morrow.
“Further, the Court is of the opinion that the ‘other insurance’ provisions of Bituminous Casualty Corporation Policy # 12369 and the existence of two other Bituminous Casualty Corporation policies numbers 12370 and 726121 do not have the effect of reducing the liability of National Indemnity. The Court finds that Bituminous Policy No. 12369 and the National Indemnity Policy were written together specifically to cover the operation by Bankhead Forest Industries of trucks rented by it from Marshall Frost and to construe the other policies in such a fashion as to cause the other policies written by Bituminous to share in the liability over the primary limits of its policy No. 12369 would frustrate and defeat the very reason for requiring the combination coverage by which Bituminous shouldered a portion of the risk and National the balance.
“Therefore, the Court’s judgment is that the plaintiffs shall have and recover from the defendant, National Indemnity Company, the sum of $30,032.25 plus interest at the legal rate from January 29, 1975.”

On appeal, National asserts that the trial court’s judgment should be reversed and that this Court should enter a judgment which will: (1) determine as a matter of law that the vehicle used by Bankhead in the accident was not a “temporary substitute automobile” and that National is not obligated under the terms of its policy for payment of any portion of the $50,000 awarded to the Morrows; (2) determine that Bituminous had primary coverage under the terms of policy No. 12370. Alternatively, in the event this Court finds the GMC tractor to be a “temporary substitute automobile” as defined in the National policy that it then determine how Bituminous policies No. 12369 and 726121 and the National policy share in the payment of the Morrow judgments.

The principal issue is whether the GMC tractor driven by the Bankhead employee at the time of the accident was a “temporary substitute automobile” under the provisions of Bituminous policy No. 12369 and the National policy. Bituminous policy 12369 defined the words “temporary substitute automobile” as:

“. . [A]n automobile not owned by the named insured or his spouse if a resident of the same household, while temporarily used as a substitute for the described automobile when withdrawn from normal use because of its breakdown, repair, servicing, loss or destruction; . . .” (Emphasis added)
Condition 1 of the National Indemnity policy provides:
“This policy, except where a provision to the contrary appears herein, is subject to all the conditions, agreements, exclusions and limitations of and shall follow the Primary Insurance in all respects. . . .”

Therefore, as the National policy provides that it follows the primary insurance to which it is excess, the same definition applies to both policies.

National contends that the tractor scheduled on Bituminous policy No. 12369 and the National policy and, which was leased by Frost to Bankhead, lists as the named insured “Marshall Frost, Lessor and Bank-head Forest Industries, Inc., Lessee.” National’s position is that when Frost provided Bankhead with the GMC tractor it did not become a “temporary substitute automobile” since both named insureds had an ownership interest by virtue of the lease agreement. Paragraph 3 of the lease agreement describes the lessee’s interest as follows:

“It is expressly understood and agreed that this is an agreement of leasing only, and that Lessee has by these presents acquired no right, title or interest in or to the vehicles leased hereunder except as specifically set forth herein.” (Emphasis added).

Clearly, the lease agreement controls what right, title, or interest, if any, the lessee has in the GMC tractor.

Our review of the lease agreement discloses no provision wherein the lessee retained or acquired legal title. Without question, the lease agreement expressly vests legal title solely in the lessor.

National correctly points out that this type of lessor-lessee relationship is a case of first impression in this state. However, Bituminous relies on several cases throughout the country to support its position that the GMC tractor was a “temporary substitute automobile.” One of the leading cases on this issue is Farley v. American Auto. Ins. Co., 137 W.Va. 455, 72 S.E.2d 520 (1952). In Farley, an insurance policy was issued to “Earl Farley and Harry Wallace” as the named insured to cover a 1950 Ford truck. While the truck was being repaired, Earl Farley had an accident while driving another truck owned by Harry Wallace. The insurance company denied liability on the ground that the substituted vehicle which Earl Farley was using at the time of the accident was owned by Harry Wallace and therefore the vehicle was not covered under the policy. The Supreme Court of West Virginia held that there was coverage under the policy, finding that Wallace was the sole owner of the temporary substitute and therefore that it was not owned by the “named insured.” The court further stated:

“The provision of the insurance policy here considered is for the insured’s benefit. Such provision, together with all of the other provisions of the policy, are to be construed liberally in favor of the insured, if any construction is necessary. Thompson v. State Automobile Mutual Insurance Co., 122 W.Va. 551, 11 S.E.2d 849. See Employers’ Mutual Liability Insurance Company v. Tollefsen, 219 Wis. 434, 263 N.W. 376; 5 Am.Jur., Automobiles, § 507.
“Though we advert to the rule relative to the construction of the provisions of insurance policies, the language of the provision here considered is clear in its meaning, requires no construction, and it only remains to be applied to the facts disclosed by this record. In the case of Adkins v. Insurance Company, 124 W.Va. 388, 20 S.E.2d 471, this court held that the phrase ‘named insured’ in the absence of any qualification thereof, applies only to the person named as the insured. See Madison v. Steller, 226 Wis. 86, 275 N.W. 703; 7 Appleman, Insurance Law and Practice, § 4354.
“It is thus seen that the unqualified phrase ‘named insured’ has a restricted meaning and does not apply to any persons other than those named in the policy.
“Stating the requirements of the provision relative to the substitute vehicle conversely: if the vehicle substituted for the one being repaired is owned by the named insured, in that event it is not covered by the policy. Bearing in mind the restrictive meaning of the phrase ‘named insured’, we think it would be illogical and untrue to say that Wallace and Farley, being the named insured, owned the substituted vehicle when it is admitted that Wallace was the sole owner thereof. We think that the substituted vehicle, in view of the foregoing, was not owned by the ‘named insured’ and therefore, according to the plain terms of the policy provisions permitting such substitution, the declaration states a cause of action and is good on demurrer.”

72 S.E.2d at 521. See St. Paul-Mercury Indemnity Co. v. Heflin, 137 F.Supp. 520 (W.D.Ark.1956); Townley v. Whetstone, 190 Neb. 541, 209 N.W.2d 350 (1973); Caldwell v. Hartford Accident & Indemnity Co., 248 Miss. 767, 160 So.2d 209 (1964); Baxley v. State Farm Mut. Auto. Liability Ins. Co., 241 S.C. 332, 128 S.E.2d 165 (1962); Annot. 34 A.L.R.2d 936.

In attempting to avoid the effect of the Farley type cases and to bring this case within the exclusion of the definition of a “temporary substitute .automobile,” National contends that these decisions are distinguishable in that, in the instant case, there is a lessor-lessee relationship. Although there are factual differences, the cases relied upon by Bituminous, nevertheless, present reasonably close analogies. Moreover, the partnership relationship in Farley, supra, offers a stronger argument for ownership than the lessor-lessee relationship.

We find the reasoning of the court in Farley persuasive. As we read Bituminous policy 12369, it is clear that the policy does not exclude coverage if the named insured had interests in the temporary substitute automobile, but only excluded coverage if the named insured owned the automobile. Whatever other interests the lessee may have had, the lessee was not the party who held legal title to the GMC tractor and therefore, it was not owned by the lessee. See State Farm Mut. Auto Ins. Co. v. General Mut. Ins. Co., 282 Ala. 212, 215-218, 210 So.2d 688 (1968). Accordingly, we are of the opinion that the trial court correctly held that the GMC tractor was a “temporary substitute automobile” within the meaning of the policy issued by National Indemnity.

National contends that the trial court erred in not requiring Bituminous to have primary responsibility for payment of any of the judgments pursuant to the limits of liability contained in Bituminous policy No. 12370 since this policy scheduled the GMC tractor. National’s argument is that the owner’s policy is always considered the primary policy when the owner’s policy contains a pro rata clause as to nonownership. Bituminous policy No. 12370 and No. 12369 contain an identical “other insurance” clause which reads:

“20. Other Insurance — . . . If the insured has other insurance against a loss covered by this policy the company shall not be liable under this policy for a greater proportion of such loss than the applicable limit of liability stated in the declarations bears to the total applicable limit of liability of all valid and collectible insurance against such loss; provided, however, under coverages A and B the insurance with respect to temporary substitute automobiles under Insuring Agreement IV or other automobiles under Insuring Agreement V shall be excess insurance over any other valid and collectible insurance.”

National asserts that the trial court erred in ignoring the primary liability of Bituminous under policy No. 12370 which contains, as does Bituminous policy No. 12369, liability limits of $10,000 each person and $20,000 each occurrence. National contends that Bituminous is obligated pursuant to the limits of the above-styled policies for the first $40,000 of the Morrow judgments. We cannot agree.

In Continental National American Group v. Burleson, 283 Ala. 671, 220 So.2d 611 (1969), this Court stated the principle of primary and secondary coverage in automobile liability policies:

“We are clear to the conclusion that the majority rule is that where an automobile owner has a policy with an omnibus clause, and an additional insured has a non-ownership policy providing that [it] shall only constitute excess insurance over and above any other, valid, collectible insurance, the owner’s insurer has the primary liability and the excess insurer secondary liability after the primary insurance is exhausted. By virtue of this rule, no consideration is given to the ‘other insurance’ clause in the primary policy, providing that if the additional insured has other valid and collectible insurance, the insurer is not liable except on a pro-rata basis because the insurance under the excess policy is not regarded as other collectible insurance, it not being available to the insured until the primary policy is exhausted. 8 Appleman, Insurance Law and Practice, supra; 16 Couch on Insurance 2d, supra; 76 A.L.R.2d supra; United States Fidelity & Guaranty Co. v. Slifkin (N.D.Ala.), 200 F.Supp. 563.” 283 Ala. at 674, 220 So.2d at 614.

The basic issue centers on the construction and purpose of the “other insurance” provisions. Bituminous contends that the “other insurance” provision written by a company is designed to place the burden, or part of it, on another company. Therefore, this “other insurance” clause necessarily refers to “other insurance” written by a different company than the company whose policy contains the “other insurance” clause. On the other hand, National argues that had Bituminous intended for these provisions to mean only “other insurance” issued by another company, it should have added the words “issued by another company” in the foregoing provisions so as to limit its liability.

In light of the facts surrounding this case, the application advanced by National would have an effect of increasing rather than limiting the liability of Bituminous. We are of the opinion that such a construction would materially alter the meaning of what is commonly referred to as an “other insurance” provision as the purpose of such a clause is to limit a particular company’s liability. Under the lease agreement, Frost was to provide liability insurance to Bank-head of not less than $100,000 for injury or death of one person and $300,000 for injury to or death of all persons injured or killed in the same accident. In order to protect Bankhead and its drivers in the operation of the leased vehicles, Frost purchased insurance. Under Bituminous policy No. 12369, Bituminous was willing to assume a portion of this risk amounting to $10,000 per person and $20,000 per accident. However, Bituminous was not willing to assume the entire risk. Therefore, Bituminous sought another company to assume the remainder of the risk. National Indemnity agreed to assume this portion and wrote its excess policy with a limit of $90,000 per person and $280,000 for each accident. The two policies would have accomplished what the trial court found they intended to accomplish.

In attempting to determine the purpose of an “other insurance” clause, this Court, in State Farm Mutual Auto Ins. Co. v. Auto-Owners Ins. Co., 287 Ala. 477, 252 So.2d 631 (1971), stated:

“It is apparent that Auto-Owners and State Farm, like many other liability insurance companies, have sought to limit their coverage where in their opinion, their policy overlaps with a policy issued by another company. This effort to limit liability has created much confusion and has been the source of much litigation.” 287 Ala. at 480, 252 So.2d at 633. (Emphasis added.)

As was stated by the trial judge in his judgment:

“. . . [T]o construe the policies in such a fashion as to cause the other policies written by Bituminous to share in the liability over the primary limits of its policy No. 12369 would frustrate and defeat the very reason for requiring the combination coverage by which Bituminous shouldered a portion of the risk and National the balance. . . .”

We find that under the circumstances of this case, the “other insurance” provision contained in Bituminous policy 12369 did not bring into effect Bituminous policy 12370 under which the GMC tractor was scheduled.

National contends that the trial court erred in not finding that coverage under Bituminous policy No. 726121 had to be depleted before the National policy was activated. National argues that this general liability policy is primary and thus places the National Indemnity policy in a position of offering secondary coverage. In the alternative, National contends that if the court finds that Bituminous policy No. 726121 does not afford coverage pursuant to its policy limits prior to any contribution by the National policy, then the Bituminous policy 726121 and the National policy should prorate to pay any remaining amount due on the judgments. Under the proration, National contends that it would be required to contribute $4,827 to Bituminous.

The insuring agreement of the National Indemnity policy is as follows:

“1. Excess Indemnity Over Automobile Liability Insurance. The company will indemnify the insured for such loss (as defined herein) as would have been payable under all of the terms of the Bodily Injury Liability and Property Damage Liability Coverages afforded by the Primary Insurance applicable to the accident or occurrence if such primary insurance had been issued for the sum of the limits stated in Columns I and II of item 4 of the declarations; provided that the company’s obligation hereunder shall apply only to loss in excess of the applicable limit of Primary Insurance set forth in Column I and shall not exceed the applicable amount stated in Column II.”

Column I of Item 4 of the declarations contained in the National policy show the “Underlying Limits of Primary Insurance” to be $10,000 for each person and $20,000 for each accident. Column II reveals that the “Company’s (National Indemnity) Limits of Liability” to be $90,000 for each person, and $280,000 for each accident. As stated previously, National contracted to provide coverage in the amount in excess of the primary insurance as written in Bituminous policy 12369. Therefore, we find that Bituminous policy No. 12369 and the National Indemnity policy were written together to cover the vehicles leased by Marshall Frost to Bankhead Forest Industries and that this combined coverage was for $100,000 for each person and $300,000 for each accident in accordance with the lessor’s obligations under paragraph 7(b) of the lease agreement. In light of this finding a determination on the apportionment question is not necessary.

We conclude that the trial court was correct in ordering that National Indemnity Company reimburse Bituminous Casualty Corporation for the remaining $30,032.25 plus interest, and therefore, the judgment is due to be affirmed.

AFFIRMED.

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


author: JONES, Justice.

text:
    Helen A. McCALEB et al. v. Mary Lou McCaleb BROWN.
    SC 2019.
    Supreme Court of Alabama.
    Feb. 25, 1977.
    Rehearing Denied April 22, 1977.

      Louis Salmon, for Watts, Salmon, Roberts, Manning & Noojin, Huntsville, for appellants.
    M. H. Lanier, Harold F. Herring and E. Cutter Hughes, Jr., for Lanier, Shaver & Herring, Huntsville, for appellee.
   JONES, Justice.

Omitting only the introductory paragraph and the formal order, we set forth in haec verba the trial Court’s Final Decree:

[Facts]

“Virginia E. McCaleb was the mother of six children: Robert Leon McCaleb, Sallie McCaleb Drake, Josephine McCaleb Balch, Joseph Edmond McCaleb, John William McCaleb and Shelby Blaine McCaleb. On May 21,1942, Mrs. McCaleb executed six (6) deeds conveying to each of her children a life interest in specified separate parcels of property.

“The operative language in each of the deeds was virtually identical, the only variation being in reference to the sex of the named grantee. This controversy centers upon the interpretation of the habendum clause in these deeds, and in particular, the effect of the habendum in the deed to Robert Leon McCaleb which reads as follows:

“ ‘To Have and To Hold unto the said Robert Leon McCaleb, together with all and singular, the rights, privileges, tenements, appurtenances and improvements thereunto belonging, for and during the term of his natural life, with remainder after his death in fee simple to his surviving descendants per stirpes. Provided, however, if at the time of the death of my said son, Robert Leon McCaleb, he shall not leave surviving any descendants, the remainder estate in and to said lands shall rest in equal shares in such of my children as may be living at such time, and the legal descendants per stirpes of such of my children who may have previously died, leaving surviving legal descendants.’

“In June of 1943, Mrs. McCaleb died, and later on April 5,1946, Robert Leon McCaleb legally adopted the plaintiff in this case, Mary Lou McCaleb Brown. R. L. McCaleb died on March 25, 1974, and the plaintiff sought a declaratory judgment regarding her rights in the property conveyed to her adoptive father by Virginia E. McCaleb. Joseph Edmond McCaleb, a son of Virginia McCaleb and an original defendant, died on February 23, 1975, without descendants, and the plaintiff amended her complaint to seek declaration of her rights in property similarly conveyed to Joseph Edmond McCaleb as well. Defendants answered and counter-claimed alleging that only the named defendants came within the terms of the remainder provision in the deeds at issue and sought a declaratory judgment in their favor.

[Issue]

“The present posture of this case sets forth a single issue for resolution by this Court. Is Mary Lou McCaleb Brown, adopted daughter of Robert Leon McCaleb, within the class of persons described in the McCaleb deeds as ‘his surviving descendants’ and as ‘the legal descendants’ of one of Virginia McCaleb’s children?

“In order to decide the question posed here, the Court is faced with the problem of framing a legal definition of the term ‘descendants’ as used in the deeds involved. Counsel for the parties have provided the Court with able and helpful briefs, but neither the briefs nor the Court’s own research has disclosed a case in which any Alabama appellate court has undertaken to define the term ‘descendant’ as it applies to an adopted child. Therefore it appears that this Court must formulate its own definition of the key term in accordance with its understanding of Alabama law.

[Decision]

“As an aid to this decision, counsel have discussed in brief and in argument the statutory and case law in Alabama and in other jurisdictions with regard to an adopted child’s ability to inherit property from adoptive parents and adoptive collateral relatives. On the subject of inheritance from adoptive collateral relatives, thé Alabama Supreme Court has clearly stated that such a result is not to be reached, Gamble v. Cloud, 263 Ala. 336, 82 So.2d 526 (1956) [1955]. Although Gamble v. Cloud did help to produce certain amendatory legislation, that legislation did not affect the ruling in regard to inheritance from adoptive collat-erals.

“Alabama case law dealing with the rights of inheritance of adopted children shows a consistent pattern of restrictive interpretation of the Alabama adoption statutes as they relate to inheritance. Since those provisions are in derogation of the common law, see, Peck v. Green, 266 Ala. 321, 96 So.2d 169 (1956); Hamilton v. Smith, 264 Ala. 199, 86 So.2d 283 (1956), Gamble v. Cloud, 263 Ala. 336, 82 So.2d 526 (1955); Franklin v. White, 263 Ala. 223, 82 So.2d 247 (1955). But it is undisputed that a child who has been adopted in a valid legal procedure is entitled to inherit from its adoptive parents, Ala.Code Tit. 27, § 5.

“If the Court were faced here with a problem of whether an adopted child takes by intestacy or under the will of a collateral who died prior to the adoption or even by intestacy or under the will of an adoptive parent, the question presented by this case would perhaps be less difficult to resolve. However, the instruments with which the Court must deal in this instance are deeds rather than wills. The legal device employed here was an inter vivos conveyance of a life estate with a contingent remainder in the ‘descendants’ of Virginia McCaleb’s children who had died prior to the vesting of the fee simple estate.

“In other words, the short time span between the execution of the series of deeds and the death of Virginia McCaleb naturally tends to suggest an ‘inheritance’ by collateral kin from Virginia McCaleb. But in fact, in legal contemplation, no inheritance has or will occur as a result of these transactions. There is no inheritance from Virginia McCaleb since all her interest in the real property involved here was conveyed away before her death, and there is no inheritance from any of the six McCaleb children since none of them owned, by virtue of the deeds, any estate in land which would have' been transmissible at death.

“Although the resolution of the instant controversy does not rest directly upon the question of whether plaintiff, Mary Lou McCaleb Brown, could have inherited property from Robert Leon McCaleb, the decisive factor is the legal relationship between plaintiff and Robert Leon McCaleb. There is no dispute about the validity of plaintiff’s adoption although counsel disagree as to whether the Court should look to the 1931 statute or the present statute as amended in 1957 and 1959. The Court is of the opinion that the same result will obtain regardless of which statute is used.

“Ala.Code, Tit. 27, § 5, outlines among other things the rights of inheritance of an adopted child. As noted above, the Court has concluded that this case turns on the interpretation of a class description found in a deed rather than on an application of the laws of inheritance, and nowhere in either of the variations on the adoption statute has the Legislature declared that an adopted child shall or shall not be included within the legal definition of the ‘descendants’ of the adoptive parents. It is, however, instructive that the Alabama Legislature has stated:

“ ‘For the purposes of inheritance of property under the laws of descent and distribution an adopted child, whether now or hereafter adopted under the laws of Alabama or some- other jurisdiction, shall bear the same relation to his adopting parents and their natural and adopted children as if he were the natural child of such parents.’ ”

Ala.Code of 1940, Tit. 27, § 5 (1958 Recomp. and 1973 Supp.).

“The terms ‘descendant’ and ‘legal descendant’ are not one of precise legal definition; they are apparently undefined in Alabama case law. Other jurisdictions, however, have arrived at determinations of whether adopted children are ‘descendants’ of their adoptive parents and of their other adoptive relatives. The results reached and the interpretive tools used have varied from state to state.

“Black’s Law Dictionary, in dealing with the term ‘descendant’ lists the following as a proper definition: ‘One on whom the law has cast the property by descent.’ This court finds such an interpretation of the phrases ‘descendants’ and ‘legal descendants’ to be correct and suitable in the case at bar.

“Therefore, the Court concludes that Mary Lou McCaleb Brown should be included within the designated class of ‘descendants’ and ‘legal descendants’ of Robert Leon McCaleb since, for purposes of intestate succession to property owned in fee by Robert Leon McCaleb, plaintiff is regarded as his child or ‘descendant.’

“We are urged to consider the intent of the grantor by the defendants. The law of descents in 1942 would have allowed an adopted child to be an heir, and the property of Robert Leon McCaleb would have descended to Mary Lou McCaleb in that year had he died and had she been adopted. She would have been as much a descendant then as any subsequent time. Virginia E. McCaleb left no signs to indicate whether or not she ever considered an adopted descendent. If we allow the luxury of speculation about intent, it is as reasonable to argue her love for an adopted child would have been as great as for a child of her blood. An excellent case can be made she would have included adopted persons if she had specifically expressed herself. She certainly could have excluded adoptees with a word or two. The court is unwilling to base its opinion upon the rambling arguments of speculation. For all we know she intended descendants to include adopted descendants.”

Conclusion

We have tested the trial Court’s decree against each of the contentions urged by the appellants; and, as supplemented by our discussion below, we adopt both the rationale and holding of the final decree from which this appeal was taken. We affirm.

Initially, we deem it appropriate to emphasize, as did the trial Judge, that the only legislative expression in this general area (Title 27, § 5, Code) is not dispositive of the issue here presented. In addition to that portion of the adoption statute quoted in the trial Court’s decree, the following language appears: “. . . and the child shall be invested with every legal right, privilege, obligation, and relation in respect to education, maintenance and the rights of inheritance to real estate, and to the distribution of personal estate on the death of such adopting parent or parents as if born to them in lawful wedlock” — all of which language speaks in terms of “rights of inheritance” and “inheritance of property under the laws of descent and distribution.”

But this is not an “inheritance” case, argues the appellants and thus the statute is not controlling. We agree that it is not controlling-, but we also agree that the language of the statute is “instructive,” and that this expression of public policy with respect to the rights of an adopted child “[f]or the purposes of inheritance” should be consistently applied in the context of inter vivos gifts of real property unless a contrary intent is clearly expressed.

Rather than electing to dispose of her property by will or by the laws of intestacy, Virginia McCaleb, during her lifetime, granted a life estate to her son, Robert, “with remainder to his surviving descendants.” Had she created this contingent interest by will, the adopted child of Robert would have taken as a “descendant” through the clear mandate of the express terms of the statute. Given the premise that the grant did not by its language expressly exclude from the term “descendant” an adopted child (see Whitfield v. Matthews, Ala., 334 So.2d 876 (1976)), we are constrained to hold that a different result from that in the case of a will should not obtain; and, indeed, to hol'd otherwise would only frustrate the overall policy of the adoption statute to treat adopted children in all respects as natural children unless a contrary meaning is clearly expressed.

In In re Coe, 42 N.J. 485, 201 A.2d 571 (1964), the Supreme Court of New Jersey, under parallel circumstances, observed:

“[I]t is not important whether the adoption statute directly controls the interpretation of instruments. The important point is that the statute reflects the feeling and attitude of the average man and hence its policy should be followed unless the benefactor explicitly reveals a contrary purpose.”

Counsel for appellants contend that to allow Mrs. Brown to inherit would be contrary to the intentions of Virginia McCaleb since she never knew the adopted daughter. This argument is not persuasive, particularly in view of the fact that this was a class gift. As stated In re Holden’s Trust, 207 Minn. 211, 291 N.W. 104 (1940):

“The least persuasive of all reasons given for the rule is that an adopted child should not be permitted to take because he was unknown to the testator. In many cases where provision is made for a class such as heirs or issue, the members of the class are unknown to the testator for the very simple reason that membership in the class is to be determined in the future and after his death. No one has ever supposed that one answering the description of those who are to take was to be excluded because he was unknown to the testator.”

The appellants have! cited cases from many jurisdictions. The statutory provisions in these jurisdictions are inapposite to the issue here presented. In some instances, the statutory language clearly restricts the rights of adopted children from inheriting collaterally. See, e. g., In re Leask, 197 N.Y. 193, 90 N.E. 652 (1910). In other instances, the express terms of the statute indicate that the legislature intended to limit the right of the adopted child to inherit from the adopted parents only. See, e. g., Jenkins v. Jenkins, 64 N.H. 407, 14 A. 557 (1888). See, generally, 9 Ill.L.Rev. 149.

One state which does have a statute similar in nature to our own is Wyoming, and their Supreme Court has held “. the term ‘descendant’ includes an adopted child when considered in connection with the adoption statute.” In re Cadwell’s Estate, 186 P. 499 (Wyo.1920).

Therefore, we hold consistent with the adoption statute which creates a parent-child relationship between the adopter and the adoptee, that the latter is presumptively within the designation of the adopter’s descendants unless the context or circumstances clearly establish a contrary intention.

The judgment of the trial Court is affirmed.

AFFIRMED.

All the Justices concur.

      . For an excellent discussion of this problem and a compilation of cases from other jurisdictions, see In re Estate of Tafel, 449 Pa. 442, 296 A.2d 797 (1972).


author: EMBRY, Justice. SHORES, Justice

text:
    Evelyn Douglas WILLIAMSON et al. v. BIRMINGHAM TRANSIT CORPORATION.
    SC 1971.
    Supreme Court of Alabama.
    March 4, 1977.

      Duncan Y. Manley of Rives, Peterson, Conway, Elliott & Small, Birmingham, for appellants.
    William C. Knight, Jr., and William F. Murray, Jr., Birmingham, for appellee.
   EMBRY, Justice.

In this negligence action we will determine whether there was sufficient evidence to submit to the jury the question of proximate cause. We hold there was not and affirm action of the trial court directing a verdict in favor of defendant.

This action arises because of a collision between a bus operated by the Birmingham Transit Corporation and a tractor-trailer owned by R. A. Chambers and operated by Hollis Chambers, all defendants below. Mrs. Williamson was a passenger on the bus and alleges she sustained injuries when it was rear-ended by the truck. On the date of the accident the truck had been following directly behind the bus for quite some distance, in very heavy traffic. Just before the collision the bus stopped for traffic, which was backed up from an intersection toward which the bus was traveling. When the traffic light at the intersection changed and traffic went ahead, the bus moved forward about one and one-half bus lengths and made a stop to take on two passengers. Testimony indicates that the bus had been stopped for 30 to 60 seconds and both passengers had boarded the bus when impact occurred. The bus was moved forward approximately three feet as a result of the collision. Mrs. Williamson alleges she was knocked from her seat to the floor, sustaining various injuries. She filed suit, claiming $20,000 as damages, and alleging all three defendants were negligent. Her husband filed a derivative suit for $5,000. The two actions were consolidated for trial only.

At the conclusion of plaintiffs’ testimony, Birmingham Transit filed motion for directed verdict and it was granted. The case was submitted to the jury as to the Chambers defendants and the jury returned verdicts in favor of Mrs. Williamson and her husband. Separate judgments were entered on those verdicts and on the verdicts in favor of Birmingham Transit Corporation. The Williamsons filed one notice of appeal, attempting to appeal from the separate judgments. We need not decide whether the one notice of appeal is suffi-dent under Rule 4(a), ARAP. The amount daimed by Mr. Williamson, in his action, is under $10,000; as a consequence this court has no jurisdiction. Code of Ala., Tit. 13, § 111(B).

The Williamsons based their case against Birmingham Transit on the theory that by stopping to take on passengers at a place not designated as a “Bus Stop” and marked with a “No Parking” sign, the Transit Company violated certain provisions of the Birmingham City Code, therefore guilty of negligence as a matter of law. They further contend that this negligence, at least, concurred with that of the Chambers to proximately cause the collision, if indeed, that negligence was not the sole proximate cause of the accident.

The evidence in this case will not support the conclusion that negligence of Birmingham Transit, if any, was the proximate cause of the accident. The bus driver testified that after the accident the truck driver stated, “I just got into the rear of your bus.” According to the police officer who investigated the accident, the truck driver stated “ * * * he was going at a slow rate of speed behind the bus, looked off momentarily, and when he looked back he was in the rear of it * * * It was too late for him to stop.” The truck driver testified he had been following the bus for some distance, in bumper-to-bumper traffic; had stopped for traffic several times behind the bus; that he looked away from the bus as traffic began to move forward on the last occasion and ran into the rear of the bus. There is no evidence the bus made a sudden or unexpected stop. To the contrary, when the collision occurred, the bus had remained stopped long enough to board two passengers.

While the violation of a city ordinance may constitute negligence, this alone is not enough. To recover, causal connection must be established between the violation and the injury. Vines v. Plantation Motor Lodge, Ala., 336 So.2d 1338 (1976).

As previously stated, under the facts of this case, defendant Birmingham Transit was due, as a matter of law, to have its motion for a directed verdict granted on the issue of proximate cause. Whether or not Birmingham Transit was guilty of negligence, in violating the ordinance, the fact remains that the sole proximate cause of the accident was the truck driver’s negligence.

In reviewing the propriety of granting a directed verdict, we must consider the evidence most favorable to the party against whom the motion for directed verdict was made. Chambers v. Buettner, 295 Ala. 8, 321 So.2d 650 (1975). The evidence, or lack of it, to support the grant of that motion falls short of that objective if any reasonable inference exists to support the William-sons’ theory of the complaint and their cases must go to the jury.

The evidence in this case, about how the collision occurred, stands uncontradicted and unimpeached. Assuming, without deciding, that violation of the ordinances was negligence, there was not sufficient evidence to submit the question of proximate cause to the jury.

We do not wish to be understood as retreating from any of the views expressed respecting proximate cause in the decisions in Alabama Power Company v. Taylor, 293 Ala. 484, 306 So.2d 236 (1975) and in Lawson v. General Telephone Company of Alabama, 289 Ala. 283, 267 So.2d 132 (1972), or Havard v. Palmer & Baker Engineers, Inc., 293 Ala. 301, 302 So.2d 228 (1974).

The granting of the motion for directed verdict was proper. The judgment in Mrs. Williamson’s case is affirmed and the attempted appeal in Mr. Williamson’s case is hereby dismissed, therefore Civil Action No. 27681 in the Circuit Court of Jefferson County is hereby affirmed and the attempted appeal in Civil Action No. 27682 in that Court is hereby dismissed.

AFFIRMED AS TO THE APPELLANT, EVELYN DOUGLAS WILLIAMSON; APPEAL DISMISSED AS TO THE APPELLANT, C. R. WILLIAMSON.

TORBERT, C. J., and BLOODWORTH, FAULKNER and BEATTY, JJ., concur.

MADDOX, JONES, ALMON and SHORES, JJ., dissent.

SHORES, Justice

(dissenting):

I dissent because I think the issue of proximate cause insofar as the Birmingham Transit Corporation is concerned is a jury question.

MADDOX, JONES and ALMON, JJ., concur.