text:
    Carrie Mae HALL et al., Plaintiffs, v. Greggory J. PONDS et al., Appellees.
    No. 5594.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 30, 1976.
    Rehearing Denied Nov. 4, 1976.
    Writ Refused Jan. 7, 1977.
    Bethard & Bethard by J. Q. Davis, Cous-hatta, Donald C. Burns, Columbia, Gist, Methvin & Trimble by Dewitt T. Methvin, Jr., Alexandria, for defendants-appellants.
    Bice & Wiley by Charles Bice, Winnfield, for plaintiff-appellee.
    Before MILLER, DOMENGEAUX and WATSON, JJ.
   MILLER, Judge.

Defendants Rock C. Baldwin, a guest passenger in an uninsured motor vehicle, and State Farm Mutual Automobile Insurance Company, insurer of a vehicle not involved in this accident and owned by Rock’s father, appeal the judgment awarding $42,000 to ■plaintiffs. Carrie Mae Hall and Willis C. Hall, for .the Wrongful- death of'. Henry Hall (their husband and father, respectively) which resulted from Rock’s host driver’s negligence. We reverse.

Greggory Ponds was the negligent driver of the vehicle in which Rock was riding. Greggory has not appealed the judgment which is now final as to him.

On Friday, April 19, 1974, Greggory was driving his brother’s uninsured 1972 automobile on La. Highway 6 in Natchitoches Parish, traveling in an easterly direction and approaching the La. 486 intersection. Greggory attempted to make a left turn onto La. 486 when he collided with a 1967 automobile driven by Henry Hall which was approaching from the east on La. 6. Henry Hall was killed instantly; Greggory and Rock were seriously injured.

On appeal, the issue is limited to the liability of the guest passenger, Rock Baldwin, as well as that of the insurer of an automobile owned by Rock’s father, which automobile was not involved in the accident.

To understand the basis for the trial court’s decision, we will review the evidence of what transpired in the hours preceding the accident.

Greggory was employed as a construction worker; at the end of his work day he returned to the apartment complex where he and his brother lived. Greggory’s brother had loaned his uninsured automobile to Greggory that day. Greggory purchased two six-packs of beer at a convenience store on his way home from work; he stored the beer in an ice chest in the car and this beer remained in the car. He then searched for his friend Leo Barnhill who was in Rock’s apartment, and found them drinking beer; Greggory had seen Rock, a student, on only one previous occasion, and then at a friend’s apartment in the complex. Starting about 6:30 p. m., Greggory, Rock, Leo, and possibly another (the testimony is unclear) sat around the apartment for about an hour, chatting and drinking beer. During the conversation, Rock suggested to Greggory that they go fishing the next day; he suggested they go to his father’s home in Cous-hatta and pick up Rock’s boat. With this plan in mind, Greggory and Rock left the apartment at about 8:00 p. m. and drove toward Coushatta in Greggory’s brother’s uninsured vehicle, with Greggory behind the wheel.

Greggory testified that he had drunk two or three beers while at the apartment (Tr. 114), later admitting that he may have had as many as four beers, but could not remember for sure (Tr. 125). Rock gave Greggory directions on how to get to Cous-hatta, but exercised no control over the operation of the vehicle.

Greggory was the only witness who could remember the moment of the collision; he didn’t see the Hall vehicle coming west as Greggory was proceeding east; when Greg-gory started to make the left turn he only remembers that “the next thing I know, we were in the wreck.” Tr. 61.

At a deposition on December 11,1974 and later at trial, Rock explained that he was unconscious following the accident; he was hospitalized for eleven days; he suffered from amnesia and memory loss; he could only remember that he began drinking beer about 3:00 p. m. that afternoon and had consumed some beer before he saw Greggo-ry. He could not remember whether or not Greggory was under the influence of alcohol, so as to be incapable of driving an automobile with safety.

LIABILITY OF ROCK C. BALDWIN

The trial court reasoned that Rock, the guest passenger in the vehicle, was liable in damages for the wrongful death of Henry Hall on the basis of LSA-C.C. art. 2324, which provides:

He who causes another person to do an unlawful act, or assists or encourages in the commission of it, is answerable, in solido, with that person, for the damage caused by such act.

The decision is premised on the finding that Rock knew or should have known that Greggory was intoxicated; that he encouraged him to do an unlawful act, namely, to drive while intoxicated; and he is responsible for the damage that resulted from that act, namely, the death of Henry Hall.

The trial court, in written reasons, and counsel for plaintiffs, in brief and at oral argument, relied upon the case of Walker v. Champion, 288 So.2d 44 (La.1974), where liability was predicated on fault under LSA-C.C. art. 2324. We distinguish that case on the facts. There, a mother and son sued for damages and medical expenses resulting from the son’s loss of an eye when struck in the face by a beer bottle thrown during horseplay. The court found one defendant liable, even though he had not personally thrown the offending missile, because he had started the fracas and it should have been apparent to him that such horseplay was likely to cause serious injury. The facts in the record before us do not support the same result.

The evidence does not support the trial court’s conclusion that if Greggory was drunk, that Rock knew or should have known he was under the influence. The evidence does not establish that the 19 year old Rock was in control of the 22 year old Greggory. No blood alcohol test was introduced although this record indicates a blood alcohol test of Greggory’s blood was ordered and made. The trial court’s written reasons (Tr. 184) stated “tests” showed Greggory was driving under the influence of an intoxicant, but there is no evidence to support that finding. On the contrary, there is evidence that the hospital records fail to show that such a blood test was made. Greggory testified repeatedly that his beer drinking did not affect his reactions. Although Greggory pled guilty to D.W.I., he testified he was not guilty of that offense. A more serious charge, negligent homicide, was pending against Greg-gory when, with benefit of counsel, he pled guilty to D.W.I. (Exhibit Record p. 12e). There was no expert testimony explaining the effect of three or four beers on a driver in the light of the variables established in this case. Because of amnesia, Rock could not remember the events leading to the accident or what effect Greggory’s drinking beer had on his condition.

In support of the trial court’s conclusion, we note that Greggory admitted drinking two to four beers from 6:30 until 8:00 p. m.; with advice of counsel he pled guilty to a charge of D.W.I. (which was admissible as to the claim against Ponds, but not as to the claim against Rock and State Farm) and not guilty to the charge of negligent homicide; there were unopened cans of beer scattered about the Ponds vehicle after the accident (which, incidentally, confirms Greggory’s testimony that he didn’t remove the beer he purchased from his car), and one opened can of beer on the Pond’s dashboard; the investigating officer detected an odor of alcohol on Greggory’s breath while he was being lifted into an ambulance.

At the time of the accident Greggory was 22 and Rock was 19; they had met on only one previous occasion; there is no evidence of intimidation or forceful persuasion by Rock; if anything, Rock was perhaps more under the influence of alcohol than Greggo-ry, since he admitted to beginning his drinking some 3V2 hours before Greggory arrived at the apartment. On the basis of the evidence in this record we cannot affirm the extension of coverage of LSA-C.C. art. 2324 to hold the guest passenger was responsible for Hall’s death.

Since it is unclear that Greggory was intoxicated when he took his position behind the wheel on the night of the accident, it becomes unreasonable to conclude that Rock knew or should have known, of Greg-gory’s intoxicated condition. In suggesting the trip to Coushatta to pick up his boat, Rock was simply encouraging Greggory to do a lawful act; it was therefore error for the trial court to hold Rock Baldwin liable under LSA-C.C. art. 2324. Barletta v. Engram, 317 So.2d 703 (La.App. 4 Cir. 1975); Russo v. Aucoin, 7 So.2d 744 (La.App. 1 Cir. 1942).

Having found no liability on the part of Rock Baldwin, the case against State Farm, the insurer óf a vehicle not involved in this accident and owned by Rock’s father, also falls.

The trial court judgment is reversed insofar as it holds Rock Baldwin and State Farm liable in damages and for costs. Costs of this appeal are taxed to plaintiffs.

REVERSED and RENDERED.

DOMENGEAUX, J., concurs in the result.


source: Caselaw Access Project

author: PETERS, Judge ad hoc.

license: Public Domain

text:
    AVOYELLES COUNTRY CLUB, INC., et al., Plaintiffs-Appellants, v. WALTER KIDDE & COMPANY et al., Defendants-Appellees.
    No. 5596.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 18, 1976.

      Gold, Hall, Hammill & Little by H. B. Bruser, III, Alexandria, for plaintiff-appellant.
    John L. Pitts, Alexandria, for defendant-appellee.
    Before MILLER, WATSON and PETERS, JJ.
   PETERS, Judge ad hoc.

This suit arose out of the destruction by fire of the Avoyelles Country Club building and contents. The fire occurred on August 16, 1972 and started in the club’s kitchen. The club’s cook was grilling a steak which caused a grease fire on the grill. There was a large hood above the grill and the flames entered the hood. Robert Boone, the club manager, extinguished the fire on the grill with a portable fire extinguisher but soon realized the fire had spread through the hood and into the attic above the kitchen. Boone directed the spray of the portable extinguisher into the hood until the extinguisher was empty but was unable to extinguish the fire, which quickly spread throughout the building. The building and its contents were totally destroyed.

At the time of the fire, the hood above the grill was equipped with an automatic fire extinguishing system manufactured by defendant Walter Kidde & Co. This extinguisher was designed to operate automatically in the event of fire but failed to operate, as will be explained hereafter.

Defendant Donnie B. Sober installed the bulk of the fire extinguishing system in a utility room adjoining the kitchen. It consisted of a cylinder containing carbon dioxide under high pressure, a canister filled with 30 pounds of dry chemical, and a triggering mechanism. In case of fire, the triggering mechanism was intended to open a valve on the C02 cylinder, releasing the high pressure gas into the dry chemical canister, where it would expel the chemical through delivery pipes which terminated in the hood. The automatic triggering mechanism consisted of a system of cables, a spring, a fusible link, and a cam to open the C02 valve. The spring, under tension, was connected to the cam by a short cable. The end of the cable was attached to the spring by a “preassembled cable loop,” formed by bending the end of the cable back and attaching it to another point on the cable with a brass clamp crimped around it. This loop was made by the Kidde Company during manufacture. The spring was held open, or energized, by another cable which went to the hood in the kitchen. In the hood, the other end of this cable was attached to the fusible link, which was designed to melt in the heat of a fire. When the link melted, it released the long cable, which in turn released the energized spring. The spring would contract, pulling the short cable and the attached cam, and the cam would open the C02 valve to release the C02, which would propel the dry chemical to the hood area to extinguish the fire.

The expert testimony at trial clearly showed the extinguisher failed to function because the pre-assembled loop in the cable attaching the cam to the spring was defectively made. The brass clamp which was supposed to hold the loop together had not been sufficiently crimped to prevent the end of the cable from slipping out. When the fusible link melted and the spring contracted, the end of the cable slipped out of the clamp and thus the cable was no longer attached to the spring. For this reason, the cam was not pulled and the C02 valve was never opened.

In addition to the automatic triggering device, the extinguisher was equipped with a manual release mechanism which allowed the system to be activated by a mere push or pull on a handle. The manual control handle was located in the utility room. It is conceded that during the fire, no one attempted to manually trigger the system. It is also clear the defective cable loop was not in any way a part of the manual release system and thus the system could have been manually activated in spite of the defect in the preassembled cable loop.

After the fire, a number of insurance companies which provided fire insurance coverage paid the Country Club for part of the loss, with the Country Club absorbing the remainder because of insufficient coverage. These insurers and the Country Club sued Walter Kidde & Co., Donnie B. Sober, the dealer who installed the system, and E. T. Gremillion & Son Fire Extinguishing Service. E. T. Gremillion & Son was later dismissed from the suit by summary judgment. The suit was predicated on liability for the defect in the fire extinguishing system which prevented its operation during the fire. It was stipulated by all parties that in the event liability were found, the damages recoverable were $104,274.01. This apparently included a demand by the Country Club for $600.00, the purchase price it had paid for the defective extinguishing system.

It is not disputed by defendants that the fire extinguisher was defective. In this court, and in the court below, defendants contended plaintiffs were barred from recovery because the Country Club was guilty of contributory negligence or improper use of the extinguisher system. It was alleged recovery was barred because (1) the loss was caused by the Country Club’s failure to properly maintain the automatic fire extinguishing system, (2) the Country Club failed to install the manual control in a place readily accessible in case of fire, (3) the Country Club’s manager, Robert Boone, negligently failed to manually activate the system, and (4) the Country Club failed to instruct its employees of the existence and use of the manual control.

The lower court rendered judgment for the Country Club against Walter Kidde & Co. for $600.00 based on redhibition, with an award of $500.00 for attorney’s fees. Walter Kidde & Co. neither appealed nor answered the appeal, so this judgment is now final. LSA-C.C.P. 2133. All other demands of plaintiffs were rejected. In his written reasons, the trial judge held there was no evidence indicating the spread of the fire would have been prevented even if the extinguisher had functioned properly. In his written reasons denying plaintiffs’ motion for a new trial, the trial judge indicated further that the Country Club was contributorily negligent, primarily for its failure to instruct the club employees in the manual operation of the fire extinguisher.

For reasons to be given, we reverse.

Plaintiffs rely squarely on the decisions of the Supreme Court in Weber v. Fidelity and Casualty Ins. Co. of N. Y., 259 La. 599, 250 So.2d 754 (1971), and Media v. Mercedes-Benz of N. A., Inc., 262 La. 80, 262 So.2d 377 (1972).

We must first consider the issue of causation, as the lower court held the evidence did not establish that the fire would have been extinguishable, and the loss prevented, even if the extinguisher had operated properly.

There is abundant evidence showing the fire would have been extinguished had the extinguisher functioned. George Pap-pas, one of plaintiffs’ expert witnesses, testified the extinguisher would have been adequate to put out the fire if it had operated. Furthermore, the system was designed to extinguish exactly the type of fire which occurred here. The system was certified by Underwriters’ Laboratories after extensive testing showed it would extinguish such a fire. The preponderance of the evidence is that the fire would have been extinguished had the system operated.

We turn now to the affirmative defense asserted by defendants. The Installation Manual for the Kidde Model KHD-30DC system was introduced into evidence. The manual called for routine service inspections every six months. It is not disputed this maintenance was not carried out. The manual further states that if the system is located in a place which is not readily accessible, the unit must be equipped with a remote control for manual activation located where it is convenient to the cooking area. This was not done in the instant case, nor were the club employees told of the existence of the manual release mechanism and its operation.

Concerning the lack of routine maintenance, the evidence shows the defect in the pre-assembled loop was not one which was likely to be discovered through routine maintenance. George Pappas testified that had a serviceman followed the maintenance procedures outlined in the installation manual, such a maintenance procedure probably would not have disclosed the existence of the defect. Therefore, the lack of maintenance is of no consequence because it was not a cause of the failure of the system.

Defendants’ contentions concerning the improper location and lack of use of the manual release mechanism require a careful consideration of the Supreme Court decisions relating to the liability of a manufacturer for damages caused by the manufacturer’s defective products.

In Weber, supra, the court held that: “A manufacturer of a product which involves a risk of injury to the user is liable to any person, whether the purchaser or a third person, who without fault on his part, sustains an injury caused by a defect in the design, composition, or manufacture of the article, if the injury might reasonably have been anticipated. However, the plaintiff claiming injury has the burden of proving that the product was defective, i. e., unreasonably dangerous to normal use, and that the plaintiff’s injuries were caused by reason of the defect.”

In Weber, there is no mention of contributory negligence as a possible defense, the court saying only that the person injured must be “without fault.” The court further held that plaintiff must prove the product was unreasonably dangerous to “normal use.” Thus, if the product is safe for normal use and the plaintiff is injured by his misuse of it, the manufacturer is not liable.

In Media, supra, and in Rey v. Cuccia, 298 So.2d 840 (1974), the Supreme Court held that a purchaser of a defective product could recover in redhibition not only from his vendor but from the manufacturer as well. Furthermore, because a manufacturer is presumed to have knowledge of the vices of the products he makes, he is liable in redhibition not only for restitution of the purchase price but also for reasonable attorney’s fees and damages. LSA-C.C. 2545; Rey, supra. The Media and Rey decisions are not predicated on fault and contain no discussion of defenses such as contributory negligence. The basis for these decisions is implied warranty, the warranty being that the thing sold is free of hidden defects and is reasonably fit for the product’s intended use.

The notion that the product must be fit for its intended use appears to be functionally equivalent to the “normal use” requirement of Weber. Under either theory of recovery, the relevant inquiry is: What was the normal or intended use of the product and was plaintiff making such normal or intended use of it?

The Supreme Court has not ruled on the availability of contributory negligence as a defense, and we need not rule on its availability, for the only negligence defendants have asserted was the misuse of the extinguisher by the Country Club. Therefore, we need only decide whether the Country Club used the extinguisher in the normal manner in which it was intended to be used. This approach was taken by this court in Fox v. American Steel Building Company, Inc. (La.App. 3rd Cir., 1974), 299 So.2d 364.

Turning now to the facts before us, we find defendants asserting the Kidde fire extinguishing system was not properly used because no use was made of the back-up system, i. e. the manual triggering device. We must decide whether use of the manual system was within the “normal or intended use” of the system.

It is obvious the system was designed, and was intended, to operate automatically in the event of fire, without the intervention of man. The fusible link was located in the area to be protected, the hood over the grill. The link was designed to melt when it was heated to a temperature of 360° F and automatically trigger the system to extinguish the fire. Thus, absent some defect in the system there was no need for manual activation. Although the Installation Manual stated that the manual release mechanism could be used to trigger the system, it did not warn that the system might fail to perform automatically in case of fire. It has been held that a manufacturer is liable when a loss results from the manufacturer’s failure to warn the user of the danger involved with a deviation from recommended procedure. American Guaranty and Liability Ins. Co. v. Little (La.App. 3rd Cir., 1976), 328 So.2d 706. From the information supplied by the manufacturer, the Country Club had no reason to suspect the extinguisher would not operate automatically in case of fire. We find that plaintiff’s expectation that the extinguisher would function automatically was reasonable and plaintiffs did not misuse the extinguisher by failing to take steps to insure that the system would be triggered manually in the event of fire.

Accordingly, we hereby reverse the judgment of the lower court and render judgment in favor of plaintiffs in the amounts stipulated and against defendant Walter Kidde & Co., Inc.

Plaintiffs have not pursued their claim against defendant Donnie Sober, and the record indicates that he was guilty of no negligence and therefore incurred no liability. Consequently, all demands against Donnie Sober are denied.

In addition to damages, plaintiffs are entitled to recover reasonable attorney’s fees. LSA-C.C. 2545. We hereby award $15,000.00 as attorney’s fees.

For the reasons assigned, judgment is rendered in favor of plaintiffs and against Walter Kidde & Co., Inc., as follows: for Avoyelles Country Club, Inc., $49,073.08; for Aetna Casualty & Surety Co., $22,-100.93; for Employers Liability Assurance Corp., Ltd., $16,250.00; for Houston Fire & Casualty Ins. Co., $8,125.00; and for Security Insurance Company for $8,125.00. On all these amounts, legal interest is owed from date of judicial demand until paid. Defendant Walter Kidde & Co., Inc. is further condemned to pay the amount of $15,000.00 as attorney’s fees, this amount to be divided among the plaintiffs in proportion to the amount of the damage award to each. All costs are assessed against Walter Kidde & Co., Inc.

Reversed and rendered.


author: GUIDRY, Judge.

text:
    P. Spencer TORRY, Plaintiff-Appellant, v. Jocelyn BARNES and Chris J. Roy, Defendants-Appellees.
    No. 5752.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 18, 1976.

      P. Spencer Torry, Larvadain & Scott by Edward Larvadain, Jr., Alexandria, for plaintiff-appellant.
    Gravel, Roy & Burnes by Dee D. Drell, Alexandria, for defendants-appellees.
    Before CULPEPPER, WATSON and GUIDRY, JJ.
   GUIDRY, Judge.

Ex proprio motu we find that this court lacks jurisdiction to hear this appeal because it was not filed timely. Therefore, we dismiss this appeal.

The trial court denied plaintiff’s request for a preliminary injunction, sustaining defendants’ exceptions of no cause of action and improper use of executory proceedings on July 26,1976. On July 28,1976 plaintiff was granted a devolutive appeal and bond was set at $250. The appeal bond was filed September 17, 1976.

An appeal from an order or judgment relating to a preliminary injunction must be taken and a bond furnished within fifteen days from the date of the order or judgment. LSA-C.C.P. art. 3612. When the appeal bond is not timely filed, this court is without jurisdiction, even if the appeal is being taken from the denial of a preliminary injunction. Ruiz v. Succession of Viosca, 291 So.2d 527 (La.App. 4 Cir. 1974).

The appeal is dismissed at appellant’s cost.

APPEAL DISMISSED.


author: INZER, Presiding Justice,

text:
    William E. VINSON, Jr. v. Constance H. GLENN, Administratrix of the Estate of Alfonso Greer Glenn.
    No. 48825.
    Supreme Court of Mississippi.
    Sept. 28, 1976.
    Rehearing Denied Nov. 9, 1976.
    Prewitt, Braddock & Varner, R. Louis Field, Vicksburg, for appellant.
    Ramsey, Bodron, Thames & Robinson, Vicksburg, Watkins & Eager, William E. Suddath, Jr., Jackson, for appellee.
    Before INZER, SMITH and BROOM, JJ.
   INZER, Presiding Justice,

for the Court:

William E. Vinson, Jr. appeals from a judgment of the Circuit Court of Warren County awarding him $2,500 as damages for personal injuries growing out of the collision between the automobile driven by him and one driven by Alfonso Greer Glenn.

The record in this case reveals that appellant was injured on January 3, 1970, at about 6 p. m. when the vehicle he was driving struck the right side of the vehicle driven by Mr. Glenn. The accident happened on U.S.- Highway 80 at the point where the driveway to the Holiday Inn in Vicksburg intersects with the highway. Highway 80 is a four-lane highway with two lanes for eastbound traffic and two lanes for westbound traffic, divided by a median strip. The Holiday Inn is south of the highway and there is a cross over for vehicles crossing the median strip and entering the driveway to the Inn.

At the time of the trial of this case, Mr. Glenn was dead and the provisions of Section 13-1-7, Mississippi Code 1972 Annotated, commonly referred to as the “dead man statute” prevented the appellant from testifying. Mrs. Glenn was called by appellant as an adverse witness and she testified that she was riding as a passenger in the car driven by her deceased husband. She said they were attempting to cross the south lanes of the highway to enter the driveway of the Holiday Inn when their car was struck by a car driven by Vinson. She said that they stopped in the lane for traffic making a left turn and waited for the traffic to clear. She looked to the right and at the time they started across the eastbound lane, she did not see any vehicle approaching the intersection. Her husband then drove slowly across the intersection, and just as they were entering the driveway leading to the Holiday Inn, their vehicle was struck by another vehicle. She said she did not hear or see the car that struck them. She did not see any lights and it seemed to her as if it just descended from above. The force of the collision knocked their car completely off the street and upon the grass on a small knoll. The Vinson vehicle was situated in the driveway to the Inn. Both Mr. and Mrs. Glenn were injured in the accident.

James Gardner, who was riding as a passenger in the Vinson vehicle, was called as a witness for the plaintiff and he testified that he suffered a brain injury in the accident and did not remember anything about how it happened. On cross examination it was brought out, over the objection of Vinson, that the witness had brought suit in the Circuit Court of Hinds County against both Glenn and Vinson charging Vinson was negligent in failing to keep a proper lookout, driving at a high and dangerous rate of speed and failed to reduce his speed after seeing the Glenn automobile in the intersection.

The trial court was of the opinion that the witness was subject to cross examination as to whether he remembered anything about the accident and the defendant had a right to impeach the witness on the basis of his testimony or lack of testimony and it was proper to ask him questions relative to the allegations made in his behalf in another county dealing with the issue of negligence.

Appellant was injured in this accident and carried to Mercy Regional Medical Center where he was treated by Dr. William B. Hobson, Jr. Dr. Hobson testified that Vinson had multiple deep cuts over the upper part of the forehead and down into the scalp area. The lacerations required approximately 100 sutures. Appellant remained in the hospital for four days and was finally discharged by Dr. Hobson in May 1970. At that time the lacerations had completely healed leaving some scars.

Appellant was examined in October 1973 by Dr. Lucian Hodges, a neurosurgeon. Dr. Hodges testified that appellant related to him that four years previous he had suffered the lacerations to the left forehead in an automobile accident. Dr. Hodges said that Vinson told him that since that time he had had some numbness in the left forehead area and headaches. The headaches occurred particularly when he wore a hardhat in his work as a welder. Dr. Hodges said that he found, from purely a subjective examination, an indication that appellant had some damage to the nerve that goes from just around the eye-brow to just above the forehead. The doctor was of the opinion that appellant would continue to have intermittent headaches that would respond to treatment by aspirin.

The jury returned the following verdict: “We, the jury, find the Glenns more at fault and award Mr. William Vinson, Jr. $2,500 which includes medical expense and all other expenses incurred.” As a result of this verdict a judgment was entered in favor of Vinson in the amount of $2,500. A motion for a new trial was overruled and Vinson appealed.

Appellant urges that the trial court erred in admitting in evidence a declaration filed by the witness James Gardner in the Circuit Court of Hinds County. Appellant relies upon the rule announced in Phillips v. Dow Chemical Co., 247 Miss. 293, 151 So.2d 199 (1963), and other cases to the effect that unsworn pleadings in a cause are not admissible in evidence as admission of the facts therein contained. However, the pleading referred to was not admitted in evidence by the trial court as proof of facts or admissions contained therein, and the jury was so instructed. The instruction told the jury that it should not consider the declaration as proof of any negligence on the part of the plaintiff or defendant. We hold that although Gardner testified he did not remember anything about how the accident happened, he was subject to be impeached by showing that on another occasion he had made statements inconsistent with his testimony. Gardner, when questioned about the lawsuit he had filed, denied that he had given the facts contained in the declaration to his attorney. However, his denial did not prevent the introduction of the declaration for the purpose of impeachment. The denial affected only the weight of the testimony and not its admissibility. Piper v. Ashburn, 243 N.C. 51, 89 S.E.2d 762 (1955); Helton v. Huckeba, 365 Mo. 93, 276 S.W.2d 78 (1965); and Selph v. Evanoff, 28 Mich.App. 201, 184 N.W.2d 282 (1970).

Appellant also urges that the trial court was in error in overruling his objection to an instruction given at the request of the defendant which authorized the jury to find that appellant was guilty of contributory negligence. It is contended that there is no evidence to support the granting of this instruction and the finding by the jury that appellant was guilty of contributory negligence. With this contention we are unable to agree. Appellant overlooks the fact that he called Mrs. Glenn as an adverse witness and he is bound by that part of her testimony that he failed to contradict. The jury could find from her testimony and the physical facts testified to by the officers that appellant was guilty of contributory negligence.

Finally, appellant urges that the trial court erred in not granting him a new trial because the verdict of the jury was so inadequate as to evince bias, passion and prejudice on the part of the jury. We find no merit in this contention for the reason that the jury, having found that appellant was guilty of contributory negligence had the duty to diminish the amount of appellant’s damages in proportion to the degree of his negligence. After a careful review of the evidence in this case, we cannot say that the verdict of the jury in this case is so inadequate as to evince bias, passion and prejudice on the part of the jury. Hankins v. Sanderson Farms, Inc., 226 So.2d 723 (Miss.1969) and Hawkins v. Hillman, 245 Miss. 385, 149 So.2d 17 (1963).

There being no reversible error in this case, it must be and is affirmed.

AFFIRMED.

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


text:
    Roy BRAMLETT, Jr. v. Dr. Henry J. KELLUM, Jr. and West Main Church of Christ.
    No. 48891.
    Supreme Court of Mississippi.
    Oct. 5, 1976.
    Rehearing Denied Nov. 9, 1976.
    Parker, Averill & Winston, Tupelo, for appellant.
    Mitchell, McNutt, Bush, Lagrone & Sams, Guy Mitchell, III, Tupelo, for appellee.
    Before INZER, P. J., and SMITH and BROOM, JJ.
   AFFIRMED.


author: WALKER, Justice,

text:
    Douglas Chaires BRADFORD et al. v. FEDERAL LAND BANK OF NEW ORLEANS et al.
    No. 48826.
    Supreme Court of Mississippi.
    Oct. 5, 1976.
    Craig Castle, Jackson, John C. McLaurin, Brandon, for appellants.
    Brunini, Grantham, Grower & Hewes, Ed Brunini, Jr., Jackson, Gibbes, Graves, Mullins, Bullock & Ferris, Laurel, Heidelberg, Woodliff & Franks, Jackson, for appellees.
    Before PATTERSON, SUGG and WALKER, JJ.
   WALKER, Justice,

for the Court.

The Federal Land Bank of New Orleans and J. B. Stafford brought this suit in the Chancery Court of Jasper County against Douglas Chaires Bradford, Burt E. Bradford, J. C. Searcy, Jr. and other nominal defendants to confirm the title to their claimed interests in a certain 80 acre tract of land in Jasper County. The bill sought to cancel a quitclaim deed to the Bradfords from their mother, Sarah Katherine Massey Bradford, and an oil, gas and mineral lease from the Bradfords to Searcy. Masonite Corporation, which claims the entire surface interest in the tract, was transposed to a party complainant by order of the court. The Bradfords and Searcy brought a cross-bill against the complainants and the nominal defendants, all of whom have recorded mineral interests in the tract, to confirm their own future interests in the land in question. Deciding the case upon stipulated facts, the chancellor awarded the tract to the complainants on a theory of adverse possession.

The complainants also claim record title through a complex chain of conveyances, which need not be detailed here since the chancellor’s theory of adverse possession is sustainable under the facts and the law. However, the chancellor did not explicitly decide whether the Bradfords had possessed any future interest in the land, suggesting that adverse possession would run against them in any event. This suggestion is erroneous. In an adverse possession case, the statute of limitations will not run against a holder of any future interest until he has an immediate right to possession. Belt v. Adams, 124 Miss. 194, 86 So. 584 (1920); 31 C.J.S. Estates § 99a (1964); L. Simes, Law of Future Interests § 50 at 105 (2d ed. 1966); cf. White v. Inman, 212 Miss. 237, 253, 54 So.2d 375, 380 (1951); Thomasson v. Kinard, 153 Miss. 398, 121 So. 109 (1929).

The asserted future interest of the Brad-fords rests upon the will of their grandfather, John Edward Massey, who owned the land at his death in 1920. His will provides:

I give, devise and bequeath unto my wife, Mrs. Emma Massey, and my daughter, Sarah Katherine Massey, the residue and remainder of my property, both real and personal, after the payment of my just debts, as tenants in common to share and share alike, under the following restrictions and provisions, to-wit:
In the event either of the said Devisees shall die without issue, then that share of said property devised as aforesaid to such Devisee, shall descend to the surviving one; and in the event of the death of both of said Devisees without issue, all of the said property shall go to and become the property of my brother, Thomas L. Massey, if he be living, and if dead, to his descendants.
It is my intention by this instrument to devise all of my property, both real and personal, to my said wife and daughter and their descendants, provided they shall have born to either of them a child or children, but in the event no such child or children shall be born to them or to either of them, then it is my desire and will that all of the said property upon the death of my said wife and daughter, become the property of my said brother, or his descendants as aforesaid.

The interests of the named devisees have been displaced by adverse possession. However, if the will created any interest in the Bradfords, the issue of Sarah Katherine Massey Bradford, that interest cannot have been extinguished.

The case turns on whether John Massey intended to create a life estate in his wife and daughter with a remainder in their issue, or a fee simple in his wife and daughter, subject to an executory interest in favor of his brother should the named devi-sees both die without issue. Under the former construction, the Bradfords would have a future interest; under the latter, they would have none. Our Court has often been faced with this problem of construction, but never does it seem to have been the controlling issue in a case. Hence, the distinctions between life estates and defeasible fees have often blurred. See, e. g., Hays v. Cole, 221 Miss. 459, 73 So.2d 258 (1954).

In a whole line of cases, Justice Ethridge construed similar provisions as creating fees simple subject to executory interests. Bridgforth v. Gray, 222 So.2d 670 (Miss. 1969); Hemphill v. Mississippi State Highway Commission, 245 Miss. 33, 145 So.2d 455 (1962); White, supra. In none of these cases did the result turn on whether the first interest was characterized as life estate. However, the cases are valuable for the Court’s insights as to the requisites of the fee simple subject to an executory interest:

An executory interest cuts off the preceding estate when the event on which it is limited happens. . . . The estate in fee simple absolute is in a person other than the conveyor, but upon the happening of the event the estate shifts to another person or persons. . . . Hence the executory interest in Vassar, Jr. and Simpson is subject to a condition which is not certain to occur, the death of Everett before his wife. Hemphill, supra, 245 Miss. at 43, 145 So.2d at 459-60).

The provision of John Massey’s will might have created a life estate had it declared that the interests of his wife and daughter would terminate upon the death of the last of them; that is an event certain to happen. However, the will provided an alternate taker only if both die without issue; that is an event not certain to happen. Where an estate is determined by an event not certain to occur, it is a fee simple defeasible, and not a life estate. Hemphill, supra, at 43, 145 So.2d at 459-60; Restatement of Property § 46, Comment i (1936).

Illustration 13 to section 46 at page 156 of the Restatement, very nearly depicts the present case and points out the distinction between a life estate and a defeasible fee:

A, owning Blackacre in fee simple absolute, transfers Blackacre “to B and his heirs” adding thereto some one of the following expressions:
I. “but if B is not survived by issue at the time of his death, then Blackacre is to go to C and his heirs”;
In each instance B has an estate in fee simple subject to an executory limitation of the shifting type.

C has an executory interest; B’s issue, like the Bradfords here, have no estate at all.

The Bradfords are doubtless correct that the construction of the will should be governed by the testator’s intent, but we see no indication that their grandfather intended to create any future interest in them. We are asked to construe his intent from the words of the devise, and John Massey’s words provided that his wife and daughter should be tenants in common. The interest of each was to pass to the other if she died without issue, but the will does not provide that the interest of each must pass to her surviving issue. The Bradfords seem to suggest that the words of the will devising all John Massey’s property “to my said wife and daughter and their descendants” create a mere life estate in the wife and daughter and a remainder in their descendants. Such a forced construction is refuted, not only by the analysis derived from our case law and the Restatement, but also from our statutes. Mississippi Code Annotated section 89-1-5 (1972) provides that conveyances are to be construed as creating a fee simple “unless it clearly appear from the conveyance or will that a less estate was intended to be passed thereby.” It does not clearly appear that John Massey, by this reference to descendants, intended to reduce the fee granted to his wife and daughter to a life estate. Cf. Wheeler v. Williams, 235 Miss. 142, 150, 108 So.2d 578, 581 (1959).

The true construction is that John Massey created a defeasible fee in his wife and daughter, subject to an executory interest in his brother in the event both died without issue. Emma Massey in fact devised her interest to her surviving issue, but, her interest not having been defeated by her death without issue, she could have devised her interest to whomsoever she chose. The same is true for Katherine Bradford. The will does not preclude her from conveying whatever interests she has, subject to de-feasance upon her death without issue. The Bradfords’, survival is a condition of their mother’s freehold, but the will gives them no estate of their own.

The chancellor was therefore correct in holding that complainants had perfected their title by adverse possession. His decree must be affirmed.

AFFIRMED.

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

      . It has been suggested in dictum in our cases that the statute of limitation may run against the holders of a future interest in case of an “unequivocal ouster,” White, supra, 212 Misc. at 253, 54 So.2d at 380, or an “actual ouster,” Thomasson, supra, 153 Miss. at 405, 121 So. at 110. Those cases do not describe the requisites of such an ouster, although Justice Ethridge indicates that evidence of a possession “consistent with that of a life tenant, or the holder of a determinable fee” will not suffice. White, supra, 212 Miss. at 253, 54 So.2d at 380. In this case, it is stipulated that the Bradfords had no actual notice that the complainants were holding adversely to their alleged future interest. However, because of our conclusion that the Bradfords had no future interest in this land, it is not necessary to decide whether the acts of the complainants might constitute “unequivocal ouster.”


author: GILLESPIE, Chief Justice,

text:
    The HOME INSURANCE COMPANY v. THUNDERBIRD, INC.
    No. 48831.
    Supreme Court of Mississippi.
    Oct. 5, 1976.
    Rehearing Denied Nov. 9, 1976.
    Watkins & Eager, James L. Carroll, Jackson, for appellant.

      Watkins, Pyle, Ludlam, Winter & Stennis, Ross F. Bass, Jr., Jackson, for ap-pellee.
    Before GILLESPIE, ROBERTSON and LEE, JJ.
   GILLESPIE, Chief Justice,

for the Court:

Thunderbird, Inc., sued Home Insurance Company, hereinafter Home, and Robinson & Julienne, Inc., an insurance agency, in the Circuit Court of Hinds County for damages sustained to a boat which had been insured by Home. The trial judge peremptorily instructed the jury for Thunderbird on the question of liability and the jury returned a verdict for $33,000 against Home. Thunderbird nonsuited as to Robinson & Julienne.

Thunderbird, Inc., and Van Every Ford, Inc., are two corporations owned principally by E. L. Van Every. Van Every Ford is engaged in the automobile business and Thunderbird is qualified to write insurance, principally in connection with the sale of automobiles. Robinson & Julienne is a local insurance agency.

Thunderbird purchased a 54-foot boat, “Top Luck,” which was then located in North Carolina where it was built. Home issued to Thunderbird its “Sports Fishing Vessel Hull” insurance policy on an agreed value of $100,000. The policy was written through and countersigned by Robinson & Julienne, Home’s authorized agent. Dated June 15, 1973, the policy warranted navigation to “a 250-mile radius of Biloxi, Mississippi, but not to exceed 100 miles off shore.” Before the boat left North Carolina, an endorsement was attached which granted permission for one trip from North Carolina to Miami, Florida, and while there “warranted navigation confined to a 250-mile radius of Miami, Florida, but not to exceed 100 miles off shore.” On February 26, 1973, the “Top Luck” struck a reef near Chub Cay, Bahamas, causing extensive damage. The loss occurred when the “Top Luck” was more than 100 miles off shore of the continental United States, but within a few miles of the shore of the Bahama Islands.

This appeal presents two questions.

I.

Was the policy of insurance effectively cancelled prior to the loss?

This question has two points of inquiry.

(A) Was a return of the premium a condition precedent to effective cancellation?

Paragraph No. 6 of the “general conditions” of the insurance contract provided:

Unless otherwise provided in the form(s) attached, this policy may be cancelled at any time upon written request of the insured, the company retaining or collecting the customary short rates for the time it has been in force; or, it may be cancelled by the company by delivering or mailing to the insured at the insured’s last known address five days written notice of such cancellation and, if the premium has been paid, by tendering in cash, postal money order, or check, the pro-rata unearned premium thereon. From all returned premiums the same percentage of deductions (if any) shall be made as was allowed by this Company on receipt of the original premium.

Paragraph No. 8 of the attached “Sports Fishing Vessel Hull” policy provided:

(a) This policy may be cancelled at any time at the insured’s request, or by this company, by giving ten days written notice of such cancellation.
(b) In the event of any change in the ownership of the vessel or if it be chartered to others on a bare-boat basis, then unless this company agrees thereto in writing, this policy shall thereupon become cancelled upon time of such change in ownership or charter.
(c) In the event of cancellation of this policy as above, the following PERCENTAGE OF THE PREMIUM to be returned NET: For each 15 consecutive days of unexpired time of the navigation period 3.54% of the period warranted laid up _%, and arrival.

The appellant argues that a prompt return of the unearned premiums was not a condition precedent to effective cancellation.

Paragraph No. 6 (above) provides that the return of the unearned premium is a condition precedent to effective cancellation. However, the appellant urges that paragraph No. 8 (above) controls the case. Paragraph No. 8 does not contain a provision with regard to the manner in which unearned premiums will be returned. Therefore, the appellant argues that the return of the premiums was not a condition precedent.

Paragraph 6 of the general conditions of the policy states as follows: “Unless otherwise provided in the form(s) attached, this policy may be cancelled. . . . ” The provisions of paragraph 8 differ from paragraph 6 in that paragraph 6 provides for five days’ notice and paragraph 8 requires ten days’ notice. The two paragraphs also differ as to the manner of computing the unearned premium. The only provision concerning the manner of returning the unearned premium is provided in paragraph 6 which requires as a condition precedent to cancellation the tendering of the unearned premium in cash, money order, or check. We are of the opinion that under the terms of the policy the return of the unearned premium in the manner provided by paragraph 6 was a condition precedent to the effective cancellation of the policy. Home apparently gave notice under Paragraph 6 because the notice given Thunderbird provided that the termination date would be five days from the date of notice rather than the ten days as provided by Paragraph 8.

The question of which paragraph controls appears to be of little consequence. Absent some provisions to the contrary (see, Employers Mutual Casualty Co. v. Nosser, 250 Miss. 542, 164 So.2d 426 [1964]) the return of unearned premiums is a condition precedent to effective cancellation. See 43 Am. Jur.2d, Insurance § 416 at 464 (1969); An-not., 127 A.L.R. 1341, 1343 (1940); Annot., 16 A.L.R.2d 1200, 1202 (1951).

(B) Did Thunderbird waive its right to a return of the unearned premium?

Since the requirement of a tender of unearned premiums is for the benefit of the insured, he may waive such requirement as a condition precedent to cancellation of the policy. Where the insured, upon receipt of a notice of cancellation, voluntarily and unconditionally surrenders the policy to be cancelled, he has been held to have waived the return of the unearned premium. Similarly, a cancellation by agreement between the parties, independently of the terms of the policy, waives such requirement. If the insured directs the agent to procure other insurance, such direction has been held to be a waiver of tender. 6A Appleman, Insurance Law and Practice § 4192 at 594 — 596 (1972).

The facts of the present case do not bring the case within the rule stated in Apple-man. In the present case there was no surrender of the policy. The acts of the agent hereinafter related renders the stated rule inapplicable.

The unearned premium of $942 was hot tendered to Thunderbird until after the loss. In March, 1973, Home credited Robinson & Julienne’s account with the unearned premium. On June 1, 1973, Robinson & Julienne sent Thunderbird a check for $942, representing the unearned premium. The check was never negotiated. When Thunderbird received the cancellation notice sent by Home on December 27, 1972, which stated that the policy would terminate on January 2,1973, Jerry Osborn, the business manager of Thunderbird, immediately talked to Richard L. Lanning, the general manager of Van Every Ford. Lanning called John W. Robinson, Jr., of Robinson & Julienne, and he was assured then that the “Top Luck” was bound and he was placing the insurance with another company. Osborn talked to Robinson & Julienne later the same day and was told not to worry, that the boat was definitely covered.

During the latter part of January an annual audit of Thunderbird was being performed, and the CPA was concerned about how to handle the unearned premium on the “Top Luck.” He discussed this with Osborn, who again called the Robinson & Julienne Agency, and talked with a lady in the office who told Osborn “that the boat was covered and that the policy was being rewritten with another company, and that we should receive — either should receive the money in the mail or it would be applied to the new premium . . . that the boat was definitely covered and that it had been placed with another company.”

We find no substantial dispute in the testimony concerning the acts and statements of the parties relating to the stated question. It is, therefore, a question for the Court rather than for the jury.

The proof shows that except for the cancellation notice Thunderbird dealt through Robinson & Julienne and not directly with Home. Aside from the agency statute, Mississippi Code Annotated section 83-17-1 (1972), Home selected Robinson & Julienne as their agent in ultimately tendering the unearned premium. Home and Thunderbird had no contract in connection with the return of the unearned premium. Home’s agent gave Thunderbird officials false assurance that the vessel was covered. Thunderbird officials had a right to believe that the premium was working to purchase coverage. The false statements of Home’s agent was the act of Home. A waiver may not be claimed by one whose false representation is the foundation of the waiver. Thunderbird failed to demand return of the premium because of its ignorance of the true facts as to what was being done with the unearned premium.

In Jefferson Life & Casualty Co. v. Johnson, 238 Miss. 878, 120 So.2d 160 (1960), the Court said in quoting from an earlier case: “It is one of the oldest maxims of the law that no man shall, in a court of justice, take an advantage which has his own wrong as a foundation for that advantage.” 238 Miss. at 884, 120 So.2d at 163. We hold that there was no waiver of the requirement that unearned premiums be returned as a condition precedent to cancellation. See Riverside Ins. Co. v. Parker, 237 Ark. 594, 375 S.W.2d 225 (1964); Annot., 3 A.L.R.3d 1135 (1965).

(C) Did the trial judge err in construing the term “Off Shore” to mean off any shore?

Home argues that the trial judge erred in not construing the term “off shore” to mean off the shore of the continental United States. Appellant also argues that the trial judge should have at least submitted the issue to the jury for determination.

The following are principles of law quoted from 1 Couch on Insurance 2d (1959):

As a general rule, the construction and effect of a written contract of insurance is a matter of law, to be determined by the court and not by the jury, where there is no occasion to resort to extrinsic evidence for the purpose of resolving an ambiguity. § 15:3 at 638-639. In accord with the general standard of giving effect to the purpose of the contract, the rule is that provisos, exceptions, or exemptions, and words of limitation in the nature of an exception, are strictly construed against the insurer, where they are of uncertain import or reasonably susceptible of a double construction. A risk that comes naturally within the terms of a policy is not deemed to be excluded unless the intent of the parties to exclude it appears clearly. A condition tending to defeat a policy must be expressed or so clearly implied that it cannot be misconstrued. § 15:92 at 835-838.

The record shows that the loss occurred when the “Top Luck” was within 100 miles of the shore of the Bahama Islands, and when the vessel traveled from Miami to the Bahamas it was never more than 100 miles off of some shore. The condition with reference to the limitations on the warranted navigation area does not limit navigation to 100 miles off the shore of the continental United States, as Home now argues. Because the limitations on the warranted area of navigation are words of limitation, they are strictly construed against the insurer, however, we are of the opinion that in the ordinary meaning of the words “off shore,” it is not to be restricted to the shore of the continental United States in the absence of a statement in the policy to that effect.

It is argued that the officials of Thunderbird construed the policy in accordance with Home’s contentions with reference to the limitations on navigation, but we find no merit in this argument.

We are of the opinion that the trial judge correctly instructed the jury to find for Thunderbird on the issue of liability. Therefore, the case is affirmed.

AFFIRMED.

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


text:
    Mrs. John CLAYTON v. Isaac DALE et ux.
    No. 48980.
    Supreme Court of Mississippi.
    Oct. 12, 1976.
    John M. Sims, Heidelberg, for appellant.
    Oates & Houston, Marvin Oates, Bay Springs, for appellees.
    Before PATTERSON, P. J., SUGG and WALKER, JJ., and KELLNER, Commissioner.
   AFFIRMED.


author: BROOM, Justice,

text:
    Charles LEE v. STATE of Mississippi.
    No. 49348.
    Supreme Court of Mississippi.
    Oct. 12, 1976.
    Rehearing Denied Nov. 9, 1976.

      Robert N. Brooks, Joe P. Barnett, Carthage, for appellant.
    A. F. Summer, Atty. Gen., by Vera Madel Speakes, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before INZER, SMITH and BROOM, JJ.
   BROOM, Justice,

for the Court:

Murder conviction and sentence of life imprisonment resulted from trial of the defendant, Charles Lee, in the Circuit Court of Leake County. After careful consideration of his appeal, we affirm.

Set forth in the indictment is the accusation that the defendant (and another) did “willfully, unlawfully, and feloniously, and of their malice aforethought, kill and murder Audie Lee Smith, . . . ” Evidence against the defendant consisted basically of the corpus delicti and his two inculpatory statements. The deceased Mrs. Smith was alive and unharmed when seen at her residence by witness Alvin Owen about 8:30 p. m. on August 27, 1975. The next day around 9:00 a. m. Owen went to the nearby store which he owned but which Mrs. Smith and her husband operated for Owen. Finding the store locked, Owen went to the Smith residence where Mr. Smith was dead in a lounge chair. Mrs. Smith (Audie Lee) was alive but seriously wounded. She was then hospitalized and later died from cardiac arrest attributable to a gunshot wound which blew away a portion of her scalp. During the night of August 27,1975, neighbors heard noises (loud talking and gunshots) emanating from the Smith residence. Subsequently, when interrogated, the defendant orally reconstructed the scene which existed at the time Mrs. Smith was shot. He did not testify at the trial.

In the store' building which he owned, Owen found (about a week after the shooting) in a desk drawer a sheet in a memo pad upon which had been written “Charlie D. Lee.” Owen identified the handwriting as that of Mrs. Smith’s husband, and the item was admitted into evidence over defendant’s objection.

I.

The defendant argues that the trial judge erred in admitting into evidence the memo pad containing the piece of paper on which was written “Charlie D. Lee.” Objection to admission of the item was on three grounds: It was not part of the res gestae, was not relevant, and could serve only the purpose of being prejudicial to the defendant’s case. Though the objection at trial was on the three grounds aforementioned, in his brief he argues mainly that the memo pad was not admissible because it “was hearsay evidence.” He makes no argument whatever as to the question of whether the memo pad and the writing contained therein was relevant, and thus he has abandoned that aspect of the objection. Further, inasmuch as the objection at trial was not premised upon “hearsay,” such argument is waived. Regardless of that feature of the case, we point out that the mere piece of paper containing the name “Charlie D. Lee” does not constitute hearsay for the reason that hearsay is more than just an object with a name on it. To constitute hearsay, extra-judicial words must by some me.ans present a statement, declaration, or assertion introduced for the purpose of proving the truth of the matter contained in or asserted by the item or thing. McCormick, Evidence, 2d Ed. § 246 (1972).

In his brief, the defendant does argue that the admission of the memo pad into evidence was prejudicial to him and he cites Smith v. State, 237 Miss. 498, 115 So.2d 318 (1959). Smith is factually distinguishable from the present case and is not authority supporting the defendant’s argument. In Smith the court pointed out that there could be no doubt that the testimony objected to was “extremely prejudicial,” but here the same cannot be said. The matter before us is merely a piece of paper containing a name, not the same (though similar) as the defendant’s name. Considered together with all the facts of the case, and upon the objection as made, we do not think letting the item go to the jury constituted reversible error. Within his discretion the trial judge might have justifiably sustained an objection on the ground that the piece of paper was too vague, remote, or “not relevant.” However, we cannot say he abused his discretion by acting as he did in response to the objection before him when considered upon the entire record of this case.

II.

Next, the defendant argues that the lower court erred in admitting into evidence two confessions or inculpatory statements signed by the defendant, one of which was given after he had been given a polygraph test. He contends that the state failed to meet its burden of proving that the confessions were freely and voluntarily given. There is no merit in this contention of the defendant who consented to the polygraph test. The uncontroverted testimony of the law officers, which the trial judge chose to accept, established that before making the confessions and consenting to the polygraph test the defendant was adequately advised of his rights. That his confessions did not result from improper inducements of coercion but were voluntary on his part was proven beyond a reasonable doubt. Stevens v. State, 228 So.2d 888 (Miss.1969). The mere fact that a polygraph test was given the defendant does not render his statement or confession involuntary though the results of such tests are inadmissible. State v. Bowden, 342 A.2d 281 (Me.1975); Johnson v. State, 166 So.2d 798 (Fla.App.1964). It is true that witness Ready, who administered the polygraph test to the defendant, admitted telling the defendant, “I felt like he needed to straighten this up . .” The record shows that Ready said this to the defendant after concluding that the defendant was holding back “about the matter . . .

In this connection the defendant cites as authority the case of Robinson v. State, 247 Miss. 609, 157 So.2d 49 (1963). Robinson differs from the present case in several aspects. In it the defendant was advised that it would be better for him to tell all about the matter in which he was involved. The defendant in Robinson was told that the officers had “the dead wood” on him and the other members of a gang. There he was also told “that the other members of the so-called gang had told their story, that the thing to do was to square himself not only with them but with the ‘man upstairs’ and that if he didn’t he wasn’t trying to help himself ,. . . .” Upon such a record, this Court held in Robinson that the facts were equivalent to an inducement offered the defendant and therefore his confession was involuntarily given. The testimony does not reveal facts upon which this Court could logically hold that the trial judge erred in finding that the confessions given by the defendant were involuntarily given. Ready’s adjuration to the defendant “that he needed to straighten this up” did not render the two confessions inadmissible upon the peculiar facts of this case. Accord, Miller v. State, 243 So.2d 558 (Miss. 1971).

III.

Another argument is that the trial court should have granted the defendant a directed verdict and his requested peremptory instruction. From our study of the record, we conclude that the trial judge correctly stated:

On a motion for directed verdict, all of the evidence, together with all reasonable inferences, are taken as true. The Court is of the opinion that under all evidence and under all the inferences flowing from that evidence, it is a question for the jury to determine the guilt or innocence of this Defendant.

Defendant next argues that the court erred in granting an instruction which reads as follows:

The Court instructs the jury that all persons are principals when guilty of acting together, in the commission of an offense. When an offense is actually committed by one or more persons, but others are present and knowing the unlawful intent, aides (sic), incites, or assists by acts or encourages by words or gestures those actually engaged in the commission of the unlawful act, such persons so aiding, inciting, assisting, or encouraging are principal offenders, and may be prosecuted as such.

Defendant’s argument in this regard is premised upon his reasoning that the defendant “should have been indicted and tried for capital murder rather than murder.” He relies on Mississippi Code Annotated § 99-17-20 (Supp.1974). The second sentence thereof reads as follows:

The judge, in cases where the offense cited in the indictment is punishable by death, shall grant no instruction for the state or the defendant which instructs the jury as to their discretion to convict the accused of the commission of an offense not specifically set forth in the indictment returned against the accused.

The quoted portion of the statute is unavailing because it purports to become operative only where the offense “cited in the indictment is punishable by death ” (emphasis added). In the instant case the defendant was not indicted for capital murder. Further argument is made by the defendant that § 99-17 — 20 takes all discretion away from the “trial jury, and by the same principle would necessarily take all discretion away from the grand jury.” This Court dealt with the matter of discretion in Stevenson v. State, 325 So.2d 113 (Miss. 1975), where we held that discretion was permissible with regard to prosecution for a capital offense.

Upon this record, we find no reversible error in the granting of the quoted instruction. From the two confessions given by the defendant, the jury had a right to find that (as an accessory before the fact) he at least aided or assisted or encouraged the shooting of Mrs. Smith whether he pulled the trigger or not. He admitted going in the house with two others who were armed with firearms. In this first statement he stated that Elroy shot Mrs. Smith, and that he (defendant) ran to the car with them but got none of the money. In his other statement, he confessed going into the Smith house but stated that he couldn’t remember if anyone accompanied him. In this statement he admitted getting a “money bag off the table . . . picking up the gun from the table .... I remember shooting Mr. Smith. & can’t remember my shooting Mrs. Smith.” By his first statement, the defendant revealed that he had been drinking alcoholic beverages.

Upon the record, it was not error for the prosecutor or the grand jury to apply discretion and indict the defendant for murder rather than capital murder. Within the purview of Mississippi Code Annotated § 97-1-3 (1972), the defendant was at least an accessory before the fact to the murder of Mrs. Smith and, as such, he was subject to indictment and punishment as a principal. The verdict of the jury, “guilty as charged,” was adequately supported by the evidence, and the defendant cites no reversible error.

AFFIRMED.

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

LEE, J., took no part.


author: WALKER, Justice.

text:
    John Junior LEE v. STATE of Mississippi.
    No. 49349.
    Supreme Court of Mississippi.
    Oct. 12, 1976.
    Rehearing Denied Nov. 9, 1976.

      Morris C. Phillips, Jr., A. R. Wright, Jr., Carthage, for appellant.
    A. F. Summer, Atty. Gen. by Pete Cajo-leas, Sp. Asst. Atty. Gen., Jackson, for ap-pellee.
    Before PATTERSON, SUGG and WALKER, JJ.
   WALKER, Justice.

John Junior Lee was tried and convicted in the Circuit Court of Leake County for the murder of Claude E. Smith. Lee was sentenced to life imprisonment in the state penitentiary. In his appeal, his only noteworthy assignments of error concern the admission of his own confession and the exclusion of the confession of his brother, Charles D. Lee.

Claude Smith and his wife, who operated a small Leake County grocery store owned by their son-in-law, were murdered on the night of August 27, 1975. For reasons not apparent in the record, the police first questioned Charles D. Lee, appellant’s brother, about the crime. Unsatisfied with his response, they decided to question John Lee on September 6, 1975. At that time, John Lee was given the warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). When investigation revealed inconsistencies in John’s story, the officers returned to his home in Kosciusko on Monday, September 8, 1975, and requested him to accompany them to the Attala County sheriff’s office for further questioning. At the jail, John again received the Miranda warnings and then admitted to having been present at the shooting but claimed not to have shot Smith himself. John claimed that he, his brother Charles, and one Lewis Riley, who was later identified by the Lees as Bernard Monroe, had driven to the Smith residence in Monroe’s station wagon. John claimed that Monroe shot Mr. Smith and that his brother, Charles, shot Mrs. Smith. John was placed under arrest and reminded once again of his Miranda rights, whereupon he signed a waiver of these rights. He then accompanied the officers to the Smith residence where he described the crime in some detail.

On September 11, 1975, the officers took a written confession from John Lee. Since John can neither read nor write, and has only a third grade education, the confession was transcribed by one of the officers, who read it to John before John signed his name. The written confession differs in several minor respects from the oral confession but substantiates the basic account of the crime. After an evening of drinking, John, Charles, and two other men drove out to the Smiths’ store to rob them. Charles and one of the other men shot Mr. and Mrs. Smith. John claimed not to have done the shooting himself. Both confessions indicate that approximately ninety dollars in cash was stolen from the Smiths and that robbery was the motive for the shooting.

I.

John Lee took the stand and admitted having made all these statements to the police. He also admitted having been informed of his Miranda rights, but claimed that he was incapable of understanding them. He maintained that he had nothing to do with the crime, and had only confirmed his knowledge of its details as suggested by the police because he was scared of them. However, on cross-examination, he admitted his understanding of each of the warnings, except the meaning of “silence”, as the prosecutor repeated them. He gave no reason for being afraid of the officers.

Before any confession may be admitted, the state must show that the defendant made a voluntary and intelligent waiver of his right to counsel and his right not to incriminate himself. The trial judge must determine the voluntariness of the confession from “the totality of the circumstances.” See, e. g., Boulden v. Holman, 394 U.S. 478, 480, 89 S.Ct. 1138, 1140, 22 L.Ed.2d 433, 437 (1969). Where the defendant claims to have lacked the mental capacity to understand the warnings, the determination of the trial judge, who has seen the defendant on the stand, must necessarily be given great weight. A trial judge’s finding that the defendant was mentally capable of understanding his rights has been upheld in the past. Harrison v. State, 285 So.2d 889 (Miss.1973); Stewart v. State, 273 So.2d 167 (Miss.1973). Here, Lee took the stand in his own behalf, and under cross-examination, seemed to understand his rights and appeared reasonably intelligent, though uneducated. A similar situation was presented in Stewart, supra, where the Court said:

The principal argument addressed to the contention that the statement was inadmissible, is based upon the proposition that she was incapable of intelligently waiving her rights because she had only a second grade education. There was no evidence, however, that she was lacking in intelligence or mentally retarded. She testified as a witness in her own defense as well as on the hearing with respect to the statement. Her testimony, as reflected by the record, does not indicate a lack or impairment of understanding.' And while she said that she could not read and had not understood what she was signing, there was testimony that the statement had been read to her before she had signed it. (Stewart, supra at 168).

The appellant’s testimony does not reveal any lack or impairment of understanding; therefore, his contention that he was incapable of understanding his Miranda rights when read to him is without merit.

II.

There is no substance to the claim that all Lee’s admissions are inadmissible by reason of an invalid arrest or detention. Lee admits that he voluntarily accompanied the officers to the jail on September 8 for questioning.

Further, Lee himself admitted that he was not yet under arrest when he got to the jail.

Q. . ‘I’m talking about the At-tala County jail?
A. I was not under arrest.
Q. You were not under arrest?
A. Not at that time.

Since Lee was not under arrest either illegally or legally, but was voluntarily cooperating with the officers, and since he understood his rights as given to him in the Miranda warnings, there can be no basis for excluding his confession.

III.

Lee also contends that his brother’s confession should have been admitted in his defense. The record also contains the written confession of Charles D. Lee, dated September 3, 1975. The confession states that Charles went to the Smith residence with Elroy Nash and Jimmy Charles and that John Lee did not accompany them. The judge excluded this written confession as hearsay, but noted that the defendant was free to call his brother, who was available, to the stand.

This State does not recognize the declaration against penal interest exception to the hearsay rule. Chambers v. State, 252 So.2d 217 (Miss.1971), rev’d, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973). This remains the position of the majority of American courts despite a trend toward more liberal admission. 29 Am.Jur.2d Evidence § 620 (1967); 22A C.J.S. Criminal Law § 749 (1961). Furthermore, many of those jurisdictions which would admit such evidence only allow it where the declarant is unavailable to testify. See, e. g., People v. Bodah, 28 A.D.2d 744, 280 N.Y.S.2d 709 (1967). Justice Rodgers, in his dissent in Chambers, stated the generally accepted formulation of the rule:

There can be little question but that the modern trend is to admit the admissions as an exception to the hearsay rule in penal cases as well as in pecuniary or proprietary cases where, (1) material, (2) where the declarant is dead, (3) beyond the jurisdiction of the court, or where he is in court and refuses to testify on the ground of self-incrimination. (Chambers, supra at 221).

This case provides no occasion to reconsider our position on the penal interest exception, since Charles Lee was not unavailable. He was in the courthouse and could have been called to the stand. Had he then refused to testify, we would be faced with the question of whether his prior confession would be admissible. We need not answer that question here.

Lee contends that the decision of the Supreme Court of the United States in Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973), requires reversal of his conviction. We disagree. Chambers does not seek to impose a general rule on the states that all declarations against penal interest which tend to exonerate a defendant must be admitted. Id. at 300, 93 S.Ct. 1048, 35 L.Ed.2d at 311. Chambers involved a highly unusual set of facts in which two valid rules, the Mississippi Voucher Rule and Hearsay Rule, combined to limit a defendant’s Sixth Amendment right to confront the witnesses against him. Id. at 302-03, 93 S.Ct. at 1049, 35 L.Ed.2d at 312-13.

Chambers had called to the stand in his defense one Gable McDonald, who had previously confessed to the murder of which Chambers stood accused. McDonald denied his guilt on the stand, after the written confession had been introduced. Chambers was not allowed to impeach his own witness, nor to introduce the oral testimony of other witnesses to whom McDonald had made oral confessions. Since McDonald’s testimony seriously eroded Chambers’ defense, the Supreme Court concluded that McDonald must be regarded as an adverse, witness and held that Chambers should have been allowed to discredit his testimony. Moreover, the Court was heavily influenced by the evident trustworthiness of McDonald’s confessions. Id. at 300-01, 93 S.Ct. at 1048-49, 35 L.Ed.2d at 311-12. The Court suggested that less trustworthy confessions might have been excluded, and specifically cited Brown v. State, 99 Miss. 719, 55 So. 961 (1911), in which, as here, the confession of a brother, who might reasonably have been thought to have been protecting the defendant, was excluded. 410 U.S. at 300 n. 20, 93 S.Ct. at 1048 n. 20, 35 L.Ed.2d at 312 n. 20.

The key consideration is that the Sixth Amendment right to confrontation, which was the basis of the Chambers’ decision, has not been threatened here. Charles D. Lee was available but was not called as a witness. The court therefore committed no error in excluding his confession.

Having considered all of John Lee’s assignments of error, and finding them to be without merit, his conviction must be affirmed.

AFFIRMED.

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

LEE, J., took no part.


author: MADDOX, Justice.

text:
    Erma P. BERDEAUX v. GAMBLE ALDEN LIFE INSURANCE COMPANY.
    CER-2.
    Supreme Court of Alabama.
    Dec. 4, 1975.
   MADDOX, Justice.

The United States Court of Appeals for the Fifth Circuit has certified to this Court a question of law. The Fifth Circuit’s certification reads as follows:

“TO THE SUPREME COURT OF ALABAMA AND THE HONORABLE JUSTICES THEREOF:
“It appears to the United States Court of Appeals for the Fifth Circuit that the above styled case in this Court involves questions or propositions of the law of the State of Alabama which are determinative of the cause, and there appear to be no clear, controlling precedents in the decisions of the Supreme Court of Alabama. This Court hereby certifies the following question of law to the Supreme Court of Alabama for instructions concerning said question of law pursuant to Section 6.02(b)(3) of the Constitution of Alabama of 1901, as amended, as follows:
“1. Style of the Case.
The style of the case in which this Certificate is made is Erma P. Berdeaux, Plaintiff-Appellee, v. Gamble Alden Life Insurance Company, Defendant-Appellant, being Case No. 74-2196, United States Court of Appeals for the Fifth Circuit, such case being an appeal from the United States District Court for the Middle District of Alabama.
“2. Statement of the Case.
On March 22, 1973, Eddie L. Berdeaux, the insured, lost his life while operating a 1970 Ford one-half ton pickup truck. On said date an accident policy was in full force and effect. Erma P. Berdeaux, the wife of the insured, Eddie L. Berdeaux, was the beneficiary under said policy which is in the amount of Twenty-Four Thousand Dollars ($24,000.00). Across the face of the policy there appears in two places, the following in block capital letters:
‘THIS IS A LIMITED POLICY READ IT CAREFULLY’
Said accident policy provided under the heading ‘ACCIDENTS COVERED, Automobile Accidents’ a payment for acei-dents occurring while the ‘insured is actually riding in or driving any private passenger automobile.’ The policy, at that point, then defined ‘automobile’ to mean ‘a land vehicle of the type commonly and ordinarily known and referred to as “automobile” ’, and a ‘private passenger automobile’ as a ‘private automobile of the private passenger design designed primarily for transporting persons.’ On April 19, 1973, Mrs. Berdeaux made timely demand upon Gamble Alden Life Insurance Company for payment under said policy. The insurer denied coverage on the ground that the insured’s 1970 Ford one-half ton pickup truck was not a private passenger automobile as defined in the policy. On October 23, 1973, Mrs. Berdeaux commenced this action in United States District Court against Gamble Alden Life Insurance Company on the jurisdictional ground of diversity of citizenship. The insurer denied coverage and moved for a summary judgment in its favor on the issue of coverage for an accident occurring in other than a private passenger automobile as said term is defined in the policy. On January 29, 1974, the District Court denied said motion, holding that the policy provision was ambiguous. On April 2,1974, a judgment in the amount of Twenty-Four Thousand Dollars ($24,000.00) was rendered in favor of Mrs. Berdeaux pursuant to a jury verdict rendered on April 1, 1974.
“3. Question to be Certified:
Does the accident policy referred to above unambiguously exclude a 1970 Ford one-half ton pickup from the scope of coverage?
“The entire record in this case, together with copies of the briefs of the parties in this Court, the Appendix of the record, and agreed certification in this Court are transmitted herewith.”

We answered the Certified Question in the negative. The accident policy referred to does not unambiguously exclude a 1970 Ford one-half ton pickup from the scope of the coverage.

Implicit in the argument of the insurer is that this Court must take judicial notice that a 1970 Ford pickup is not “a private automobile of the private passenger design designed primarily for transporting persons.” We judicially know that pickup trucks are adapted for and are commonly used, in part, as passenger vehicles. We also judicially know that such vehicles are adapted for and are commonly used, in part, to carry loads. Which use was intended by the manufacturer to be primary is doubtful as a fact of general knowledge, and we are unwilling to accord judicial recognition to it.

We note from the record which was forwarded to us by the Fifth Circuit Court of Appeals that there was testimony presented in the United States District Court to the effect that the vehicle in question was designed to take into consideration the use to which the vehicle would be put. For example, the insurer’s expert witness testified as follows:

“Q Have you had the occasion to consider what the primary design of a Ford pickup truck is?
“A Yes. On two separate occasions I have been the principal engineer in charge of the evolution of a new truck series. And almost the first thing you do is, you think of how will this truck be used and what must we put into it to make the utility of the truck as great as possible so that it appeals to the widest segment of the market. Contrary to some manufacturers, we do not try to design many, many trucks in light truck engineering, to cover the market place; but we try to design a single truck, the pickup, which has the broadest possible utility.” [Emphasis added.]

In Tuttle v. Gamble Alden Life Insurance Company, 385 F.Supp. 1352, 1356 (N.D.Tex.1974), the Court construed a policy with language identical to the one involved in this case. There, the Court said, as follows:

“As to whether or not a pickup is a passenger automobile within the meaning of the policy in question is a question of material fact and to be determined by the trier of facts, which is the court, in this instance.” [Emphasis added.]

Although the trial court, in the Tuttle case, found that the vehicle involved there was not covered under the terms of the policy, the Court did determine that the question presented was one for the trier of the facts. See also English v. Old American Insurance Co., 426 S.W.2d 33, 37 and 38 (Mo.1958), 38 A.L.R.2d 867; Contra, Laraway v. Heart of America Life Insurance Co., 153 W.Va. 70, 167 S.E.2d 749 (1969).

HEFLIN, C. J., and MERRILL, BLOOD-WORTH, FAULKNER, JONES, ALMON, SHORES and EMBRY, JJ., concur.


author: JONES, Justice.

text:
    W. C. PENDLEY v. H. L. PENDLEY et al.
    SC 1593.
    Supreme Court of Alabama.
    Aug. 27, 1976.
    Rehearing Denied Nov. 5, 1976.
    Gerald D. Colvin, Jasper, for appellant.
    Selman, Beaird & Selman, Jasper, for ap-pellees.
   JONES, Justice.

This case involves a petition by W. C. Pendley for sale of land and a cross claim by C. B. Pendley against the petitioner and the remaining respondents claiming that he is the sole owner of the land. All of the parties involved are brothers and sisters, except for Janie Pendley who is their mother and the widow of J. A. Pendley. J. A. Pendley died intestate on March 3, 1953; there was no administration of his estate. All of the parties except W. C. Pendley, the petitioner, filed answers admitting the allegations of C. B. Pendley’s cross claim, leaving W. C. Pendley and C. B. Pendley as the only real parties in interest.

The property in question consists of 80 acres located in Walker County. Initially, C. B.’s claim to the land was based on three theories: 1) His father, J. A. Pendley, and his mother, Janie Pendley, conveyed to him this land and by mistake the deed described only 10 acres of land instead of 90; 2) by virtue of adverse possession for 10 years under color of title; and, 3) by virtue of his being in actual, open, hostile, notorious, exclusive, and continuous possession of this land for 20 years prior to the filing of this petition. For purposes of this appeal, counsel for C. B. (appellee) acknowledges that, because the trial Court found adversely to his first two contentions, he is left with his 20-year prescription ground in support of the trial Court’s decree.

Petitioner (appellant) contends that he is one of the heirs at law and, because the property cannot be fairly divided, the land should be sold for division of the proceeds. Essentially, counsel for W. C. Pendley asserts that the trial Court’s decree, holding C. B.’s title was founded on adverse possession which began approximately 4 years prior to their father’s death, is an erroneous legal conclusion based upon undisputed evidence. (It is to be noted that petitioner’s original complaint was filed on March 1, 1973, two days prior to 20 years after J. A. Pendley’s death.)

The interested parties entered into the following stipulation of facts: (1) All the parties involved derive their title or claim of title from J. A. Pendley. (2) Since 1948, the land has been assessed, and taxes have been paid, by C. B. Pendley.

The trial Court determined that the land could not be divided equitably or partitioned in kind; that, starting in 1948, C. B. took possession of the land in question and began cultivating it, cutting timber from it, keeping the proceeds for himself; that C. B. also fenced certain portions of the land. Additionally, there was sufficient evidence to support a further finding that the father attempted to make an oral conveyance of the 80 acres to his son, C. B. Indeed, all of C. B.’s brothers and sisters, except the petitioner, believed C. B. had a deed of conveyance from their father and mother to the 80 acres and, upon learning that there was no deed, all except petitioner conveyed the property to C. B.

Counsel for the parties have forthrightly framed the dispositive issue and ably argued their respective positions. They agree that the issue may be stated as follows: Did C. B. Pendley’s claim of adverse possession commence prior to his father’s death? When reviewed in the factual context of this case, the issue may be more narrowly restated: Is possession by the grantee of an oral conveyance, which is invalid to pass title, adverse to the grantor of such conveyance?

We answer the question, as alternatively posed, in the affirmative. The final decree of the trial Court, vesting title in C. B. Pendley, is affirmed.

The appellant (W. C. Pendley) contends that C. B. Pendley’s possession from 1948 to 1953 was permissive on the part of the father, and that the evidence of the father’s attempted oral gifts of this land to C. B. shows permissive use, not hostility.

This contention was answered in the 100-year-old case of Collins v. Johnson, 57 Ala. 304 (1876), and reaffirmed in Vandiveer v. Stickner, 75 Ala. 225 (1883), and Lee v. Thompson, 99 Ala. 95, 11 So. 672 (1892). Lee contains a succinct statement of the rule:

“[A]n uninterrupted, continuous possession of lands by a donee, under a mere parol gift, accompanied with a claim of right, is an adverse holding as against the donor, and will be protected by the statute of limitations, thus maturing into a good title by the lapse of [the prescriptive period]; that the fact is immaterial that such a parol gift of lands conveys no title, and only operates as a mere tenancy at will, capable of revocation or disaffir-mance by the donor at any time before the bar of the statute is complete.”

The problem centers around the word “hostile." For possession to be adverse against the true owner, it must not be in recognition' of the donor’s title and it must be exclusive and continuous. The possession must be adverse and cannot be a permissive possession. “Permissive” denotes retention of title by the owner. If the title holder (the father), although permitting another’s (the son’s) use of the property, intended to surrender title, the son’s exclusive possession is hostile and constitutes possession adverse to the father. In this context, “permissive use” is not used in the sense of a licensed possession in subordination to another’s title. Miller v. Conley, 96 Or. 413, 190 P. 301 (1920). See also 43 A.L.R.2d 1 at p. 30.

The Alabama rule is consistent with the general rule as stated in Tiffany, The Law of Real Property, Third Edition Abridged, § 550, pp. 480-481:

“To enable one to acquire title by adverse possession his possession must be hostile to the true owner and must be under a claim of right and must exclude any recognition of the rights of the true owner. Intention is of prime importance. Intention to hold adversely must exist for the entire statutory period.
U * * *
“One who goes into possession under an oral transfer from the owner may assert the statute against the owner after the statutory period, since his possession is under a claim of right which is necessarily exclusive of the transferor. A grantee’s possession is adverse to the grantor, whatever may be the defects in the grant.”

AFFIRMED.

HEFLIN, C. J., and MADDOX, SHORES and BEATTY, JJ., concur.

      . The issue thus framed recognizes 1) the life tenancy of J. A. Pendley’s widow would prevent the operative effect of adverse possession against remainderman unless commenced prior to J. A. Pendley’s death (see Kubiszyn v. Bradley, 292 Ala. 570, 298 So.2d 9 (1974), and Hammond v. Shipp, 292 Ala. 113, 289 So.2d 802 (1974), and 2) 20 years did not expire between the date of his death and the filing of this suit.

      . It is important to recognize that the elements necessary to constitute adverse possession are the same under the 10-year statutory period (color of title) and the 20-year prescriptive period. There is, however, a material difference in the burden of proof as to these elements between these two species of adverse possession. For a good statement of this rule, see Fitts v. Alexander, 277 Ala. 372, 170 So.2d 808 (1965).