author: WALDEN, Chief Judge. DRIVER, B. J., Associate Judge

text:
    William G. POULOS and Ester Poulos, his wife, Appellants, v. Kenneth F. VORDERMEIER, d/b/a Vordermeier Insurance Agency, et al., Appellees.
    No. 75-1445.
    District Court of Appeal of Florida, Fourth District.
    Feb. 27, 1976.

      Borden R. Hallowes, Fort Lauderdale, for appellants.
    John E. Salmon, of Knight, Peters, Hoeveler, Pickle, Niemoeller & Flynn, Miami, for appellees.
   WALDEN, Chief Judge.

Upon motion to dismiss the trial court finally dismissed plaintiff’s complaint on the basis that the cause was barred by the Statute of Limitations. Plaintiffs appeal. We reverse and remand.

Beginning with time honored basics, all know that the function of a motion to dismiss a complaint is to raise a question of law as to the sufficiency of the facts alleged to state a cause of action. The motion admits as true all well pleaded facts as well as all reasonable inferences arising from those facts. The allegations must be construed in the light most favorable to plaintiffs and the trial court must not speculate what the true facts may be or what will be proved ultimately in trial of the cause. Further, the trial court’s gaze is limited to the four corners of the complaint. Finally, the motion must be decided on questions of law, only, and matters not shown on the face of the complaint can not properly be raised on a motion to dismiss. See generally 25 Fla.Jur., Pleadings § 127.

Although contra to tradition, the Statute of Limitations, an affirmative defense, can be asserted in a motion to dismiss for failure to state a cause of action and can be adjudicated, provided the facts constituting such affirmative defense appear on the face of the complaint. Timmins v. Firestone, 283 So.2d 63 (4th DCA Fla. 1973); Rule 1.110(d) F.C.P.; see generally 21 Fla.Jur., Limitation of Actions § 88.

And so the real question before us is whether the bar of the Statute of Limitations affirmatively appears on the face of the complaint when considered in the light of the principles just mentioned.

It is agreed that the cause of action is for negligent misrepresentation and that the applicable Statute of Limitations is three years, the statute being Fla.Stat. 95.11(5) (d) (1973).

“95.11 Limitations upon actions other than for the recovery of real property. —Actions other than those for the recovery of real property can only be commenced as follows:
* * * * * *
“(5) Within three years.— ******
“(d) An action for relief on the ground of fraud, the cause of action in such case not to be deemed to have accrued until the discovery by the aggrieved party of the facts constituting the fraud;”

The disagreement is when, from the allegations of the complaint, did the statute begin to run. The answer turns upon when the plaintiffs actually learned of the negligent misrepresentation, or, when plaintiffs should have learned of it using reasonable or due diligence. Since it is manifest from the complaint that plaintiffs obtained actual knowledge some time after September 23, 1972, (which would be less than three years prior to the commencement of the action), the narrow question remains as to when plaintiffs should have learned of it using reasonable or due diligence. Matthews v. Matthews, 222 So.2d 282 (2d DCA Fla. 1969); Codding v. Phillips, 296 So.2d 554 (3rd DCA Fla.1974); Azalea Meats, Inc. v. Muscat, 246 F.Supp. 780 (S.D.Fla.1965), rev’d on other grounds 386 F.2d 5 (5th Cir. 1967).

Now we turn to the complaint.

Plaintiffs are in effect, the insureds and defendants are the insurance agents and carriers. Shortly before June of 1969, by written and oral application to the agent, plaintiffs asked for family and automobile liability insurance for bodily injury and death at $100,000 per person, and $300,000 per occurrence, without exceptions. It was specifically pleaded:

“6. That the Defendant, KENNETH F. VORDERMEIER, d/b/a VOR-DERMEIER INSURANCE AGENCY assured the Plaintiffs that they would be covered by an appropriate automobile liability insurance policy covering the Plaintiffs and their children while operating motor vehicles belonging to the Plaintiffs, and that the same was written upon and issued by the Defendant, THE TRAVELERS INDEMNITY COMPANY, for the coverage as hereinabove set forth and requested by the Plaintiffs with no exceptions as related to liability protection.
“7. That throughout the period of time in question beginning with June of 1969 to and including September of 1972 when an accident as hereinafter mentioned occurred the automobile liability protection issued through the Defendant, VORDERMEIER INSURANCE AGENCY, was with THE TRAVELERS INDEMNITY COMPANY and although there had been numerous declarations and premium notice sent otit because of the change of cars and the number of cars and because the premium notices were sent twice annually and there were differences thereon indicating a different form or type of coverage, the Defendant, KENNETH F. VORDER-MEIER, d/b/a VORDERMEIER IN-SÜRANCE AGENCY, emphatically assured, promised and represented to the Plaintiffs that they had the full protection set forth above that was requested by them and known by the Defendants, VORDERMEIER INSURANCE AGENCY and THE TRAVELERS INDEMNITY COMPANY. (Emphasis supplied.)
“8. The Plaintiffs have at all material times hereto paid in full the premiums due and have otherwise performed all things necessary to fulfill their obligations under the automobile liability policies.
“9. That while several conflicting endorsements were mailed to the Plaintiffs, they were always reassured by the Defendant, VORDERMEIER INSURANCE AGENCY, through their agents, servants or employees, including the principal, KENNETH F. VORDER-MEIER, that the full extent of coverage known by the Defendants and which was requested by the Plaintiffs was in full force and effect.” (Emphasis supplied.)

It further appears from the complaint that on September 23, 1972, a member of plaintiffs’ family was involved in an automobile accident with the result that plaintiffs and the family member sued for a sum in excess of $10,000. The defendant carrier has asserted that plaintiffs have only $10,000 coverage.

Back to specific allegations:

“11. The Defendant, KENNETH F. VORDERMEIER, d/b/a VORDER-MEIER INSURANCE AGENCY, misrepresented to the Plaintiffs that they were insured for the total sum of $100,000.00 per person liability protection and $300,000.00 liability protection per occurrence when in fact they now contend this is not the case and that there was some limit of protection in that the amount of liability coverage was restricted when automobiles listed in the policy were operated by persons under the age of 25; that notwithstanding the knowledge of the agent, KENNETH F. VOR-DERMEIER, that of the six members of the Plaintiffs’ family residing here in Broward County, Florida, four of them were under the age of 25 and were in fact the major operators of said automobile, he now contends that there was some limited liability coverage although expressly now [sic] known by the Plaintiffs [sic]
“In misrepresenting the coverage contrary to the express desires and wishes of the Plaintiffs, the Defendant, KENNETH F. VORDERMEIER, d/b/a VORDERMEIER INSURANCE AGENCY, by their constant assurance of protection and fulfilling the desires of the Plaintiffs caused the latter to rely entirely upon their expertise upon their understanding of the situation and upon an expressed belief that their needs and wishes had been met causing the Plain-tifs [iic] thereby to refrain from properly protecting themselves and thereby in reliance thereon have now been caused to suffer the potential damage as alleged in the present law suit filed against them by ROBERT LEE CHESSER and his wife. Alternatively, the Defendant, KENNETH F. VORDERMEIER, was negligent in that he well knew the desires and wishes of the Plaintiffs, but knowing the same, he failed by his careless and negligent acts to provide the same or failed to supervise the personnel of his office in seeing to it that proper protection was afforded to the Plaintiffs. Therefore by such conduct, the Plaintiffs have suffered tremendous damage and suffer a potential loss far and in excess of the meager and minimal coverage now asserted by THE TRAVELERS INDEMNITY COMPANY or alternatively, the Defendant, KENNETH F. VORDERMEIER, or his servants or employees acting on his behalf were negligent in failing to properly advise in any manner to the Plaintiffs the meaning of the endorsements and further knowing their desires failed to properly explain to them that if in fact coverage was in any way limited how the same could be expanded and therefore by carelessly and negligently and failing to provide them with sufficient information they were not apprised that their wishes and desires had not been complied with.” (Emphasis supplied.)

While there are other allegations and counts, the foregoing excerpts from the complaint embrace the Statute of Limitations issue.

Defendants contend that the allegations in the complaint that plaintiffs received notices, declarations and conflicting endorsements “and there were differences thereon indicating a different form or type of coverage” were themselves sufficient as a matter of law to put plaintiffs on notice that a misrepresentation had occurred. However, defendants’ contention overlooks other dispositive portions of the complaint. In each instance where the language relied upon by defendants appears, it is followed by explicit and comprehensive language that plaintiffs were emphatically assured by defendants that, regardless of endorsements and notices, the defendants were affording the full insurance coverage requested by plaintiffs, and that plaintiffs relied upon such assurances. If these pleadings be taken as true, as indeed they must, then there is no basis for a court holding as a matter of law that the Statute of Limitations began to run at any time before plaintiffs received actual advice from the defendants of their contention that they considered themselves limited to a liability of $10,000. This advice followed the accident date of September 23, 1972 (as pleaded in Paragraph 10 of the complaint), which means that the three year Statute had not run, the action having been commenced in January 1974.

Moreover, there are other considerations which mitigate against a judicial determination that the Statute of Limitations had run. First, for example, we do not know from the complaint the content of the various notices, declarations and endorsements. Were the conflicts or contents mere trifles and not such as to alert a reasonable man ? Did they concern the kind or amount of coverage and to what degree? Since it is not stated, forasmuch as we know, the endorsements may have reflected more coverage than requested. Second, we do not know with any degree of specificity when the notices or endorsements were forwarded to plaintiffs. Without this, a court can not determine within the stated guidelines when the Statute of Limitations began to run. For instance, it is possible from the allegations of the complaint that such notices were sent in sufficient point of time as to be within three years of the commencement of the action so that the Statute would not be applicable.

For these reasons it is our opinion that facts constituting a Statute of Limitations bar did not exist on the face of complaint. Hence, it was error to dismiss the complaint as was done.

Reversed and remanded.

OWEN, J., concurs.

DRIVER, K J., Associate Judge, dissents with opinion.

DRIVER, B. J., Associate Judge

(dissenting).

I would affirm. The policy of insurance in the final analysis is nothing more than a contract. The terms of the policy were explicit and unambiguous as to coverage. The amount of coverage was known to the insured as evidenced his announced concern to the agent. He accepted benefits of the policy without payment of any additional premiums for the greater coverage and now seeks to make the insurer responsible for his neglect by relying upon communications outside the policy. The record does not reveal that these communications were in writing but so far as may be gleaned may have been conversations over the telephone, verbal comments on a street corner or on the golf links.

The liability of the insurance company for the acts of its authorized agents is recognized. It does not comport with my understanding of the law, however, to permit appellant to acknowledge that in 1969 he was aware that coverage was $10,000.00 on the face of the policy and now be entitled to vary the express terms of the insurance contract by pleading parol evidence contradicting the express provisions of the insuring agreement.

      . Fla.Stat. 95.11 was amended effective January 1, 1975.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Eleanor SALKIN, Petitioner, v. FLORIDA INDUSTRIAL RELATIONS COMMISSION, and Vin-Dee, Inc., c/o Dyan’s Deli, Respondents.
    No. 75-1400.
    District Court of Appeal of Florida, Second District.
    March 3, 1976.
    Ted R. Manry, III, and John W. Campbell, of Macfarlane, Ferguson, Allison & Kelly, Tampa, for petitioner.
    Kenneth H. Hart, Jr. and Luther C. Smith, Florida Department of Commerce, Tallahassee, for respondent Commission.
   PER CURIAM.

After due consideration of the record, briefs, and oral argument, we are unable to find that the petitioner has demonstrated a departure from the essential requirements of law. Accordingly, the petition for writ of certiorari is

Denied.

HOBSON, Acting C. J., and GRIMES and SCHEB, JJ., concur.


text:
    Robert E. JONES, Appellant, v. SEABOARD COAST LINE RAILROAD COMPANY, Appellee.
    No. 74-1362.
    District Court of Appeal of Florida, Second District.
    Feb. 25, 1976.
    Rehearing Denied March 18, 1976.
    Wagner, Cunningham, Vaughan, May & Genders, Tampa, Robert Orseck, Podhurst, Orseck & Parks, and Susan Goldman, Miami, for appellant.
    Michael N. Brown, Allen, Dell, Frank & Trinkle, Tampa, for appellee.
   PER CURIAM.

This case at first gave us pause. We now conclude after careful consideration the trial judge was eminently correct in directing a verdict in favor of appellee Seaboard Coast Line Railroad Company.

Affirmed.

McNULTY, C. J., and BOARDMAN and SCHEB, JJ., concur.


text:
    Joseph M. BRUCE and Wendell Allen, Individually and as trustees, Appellants, v. Williams S. TURNBULL, Individually and as trustee, and Orange County, Florida, Appellees.
    No. 74-1528.
    District Court of Appeal of Florida, Fourth District.
    Feb. 27, 1976.
    Charles M. Harris, of Crofton, Holland, Starling, Harris & Severs, Titusville, for appellants.
    William L. Kirk, Jr., and L. E. Wagner, of Pitts, Eubanks, Ross & Rumberger, Orlando, for appellees.
   PER CURIAM.

The plaintiffs in a slander of title suit appeal an adverse summary judgment. The record discloses the existence of genuine issues of material fact on the several elements of this cause of action as enunciated in Gates v. Utsey, 177 So.2d 486 (Fla.App.1st 1965). Thus, the case was not ripe for a disposition via summary judgment.

Reversed, and remanded for further proceedings.

Reversed and remanded.

OWEN, MAGER and DOWNEY, JJ., concur.


author: PAUL M. MARKO, III, Associate Judge.

text:
    David SHIVER, Appellant, v. STATE of Florida, Appellee.
    No. 73-740.
    District Court of Appeal of Florida, Fourth District.
    Feb. 27, 1976.
    Raymond E. Ford, Ft. Pierce, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Stephen R. Koons, Asst. Atty. Gen., West Palm Beach, for appellee.
   PAUL M. MARKO, III, Associate Judge.

The defendant, David Shiver, testified that he and another co-defendant, (not a party to this appeal) borrowed his brother-in-law’s truck with a trailer outfitted with a hoist, shotgun and shells and drove from Ft. Pierce to a remote area in Okeechobee County to shoot rabbit. As they were traveling north on Hi-Lo-Lo Road, a red and white car also traveling north, sped past them and the defendant said he saw someone firing a gun wildly out the window of the other car. The defendant testified that to avoid further contact with the other car, he attempted to turn his truck around and got it stuck in a ditch on the side of the road. The defendant said that they did not fire their shotgun that day as they did not. see a rabbit; they did admit to having been drinking.

The State proved that one quarter of a mile farther down Hi-Lo-Lo Road, where the defendant said he had not traveled, a steer was shot and killed. The animal laid inside the pasture SO to 75 feet from the fence along the road. The State’s ballistic expert testified that the steer was shot with number 5 buckshot. A box of number 5 buckshot shells were in the defendant’s truck at the time of arrest. The State expert further testified that spent number 5 shotgun shells, which were found at the base of the fence by the road next to the dead steer, were fired from the defendant’s shotgun.

The defendant’s tire tracks were also found on the soft shoulder of the road next to the dead animal.

The facts further reveal that the ranch manager, upon hearing gunshots, went to Hi-Lo-Lo Road where he found the defendant and his truck in a ditch. The rancher was told by the defendant about the red and white car. No other person saw the red and white car.

A witness did testify that he did not see the car even though he was traveling in the opposite direction to the defendant and stopped to assist the defendant in the ditch. There were no cross roads on Hi-Lo-Lo Road for many miles in the area in question.

The defendant voluntarily showed his gun to the rancher and the rancher testified about the strong smell of recent gun powder.

The rancher told the deputy about the defendant, the truck and the gun. When the deputy saw the defendant, the deputy asked to see the gun; the defendant said “certainly” and voluntarily handed it to the deputy.

The defendant raises several points on appeal worthy of consideration. First, defendant contends that the trial court erred in denying appellant's Motion to Suppress tangible evidence, to-wit: The shotgun and the shotgun shell found in the truck. The defendant avers that he was arrested without warrant and without probable cause. The evidence is uncontroverted and it clearly shows that the defendant voluntarily showed the shotgun freely to both the rancher and then the Deputy Sheriff; in addition, the shotgun and the box of shells were also in plain view.

We find there is no merit in defendant’s argument as it is well established that the search of property without a warrant and without probable cause is completely proper when there is voluntary consent. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); see also United States v. Garcia, 496 F.2d 670 (5th Cir., 1974); Bailey v. State, 319 So.2d 22 (Fla.1975); and James v. State, (Fla.App. 1969), 223 So.2d 52.

Moreover, it is also well settled that contraband seized in plain view is not a search and the evidence obtained is clearly admissible. State v. Clarke, 242 So.2d 791 (4 DCA Fla.App.1970); Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968).

The defendant further contends that there was insufficient evidence to support a verdict and judgment that defendant wil-fully and maliciously killed a steer by shooting it with a shotgun as charged and further, that the State failed to prove that the defendant had a conscious intent that a criminal act should be done.

The defendant argues that nobody saw the shot fired at the steer and it could not be proved that the shot taken from the dead steer came from the spent shell found at the base of the fence.

This is a case of circumstantial evidence pointing to a conclusion that there was clear, convincing and sufficient evidence. The jury obviously believed the State’s witnesses over the contradictory testimony of the defendant or his co-defendant. When the jury is offered conflicting evidence, it is for them to weigh and this court will not overrule the jury if there is sufficient competent evidence as there was in this case. Williams v. State, (Fla.App. 4th 1970) 239 So.2d 127.

The court is also aware of the cases that require that circumstantial evidence must be consistent with guilt and inconsistent with innocence and that if there is another reasonable hypothesis, then the evidence is insufficient. The jury, to reach a decision of guilty, had sufficient evidence to reason that the only reasonable hypothesis is guilt and the other hypothesis of innocence is unreasonable. McGough v. State, 293 So.2d 147. (Fla.App. 2nd 1974).

We find, therefore, that the jury had more than sufficient evidence to find the defendant had the requisite, wilful, malicious and conscious intent.

The question as to. whether there was sufficient evidence to sustain a verdict that the defendant aided and abetted this co-defendant cannot be raised at this time as it was not presented to the trial court and therefore, this objection was not preserved.

Affirmed.

CROSS and MAGER, JJ., concur.


author: DOWNEY, Judge.

text:
    Rufus V. BRADLEY, Appellant, v. Elizabeth L. BRADLEY, Appellee.
    No 74-1493.
    District Court of Appeal of Florida, Fourth District.
    Feb. 27, 1976.

      John A. Baldwin, Casselberry, for appellant.
    Joseph M. Murasko, Fern Park, for ap-pellee.
   DOWNEY, Judge.

The husband in a dissolution of marriage proceeding appeals from those portions of an adverse final judgment awarding the wife $4,000 in lump sum alimony, $800 as attorney’s fees, and $479.20 as costs or suit money.

The record indicates appellant had been in the used car business but that the business had ended, and at the time of trial appellant was engaged in buying used cars for dealers on a flat fee basis that produced an income of between $500 and $600 per month. The record further indicates that (a) appellant has no assets of any consequence; (b) appellant owed the Internal Revenue Service over $700 and had several law suits against him, one for $4,800 which was indefensible; and (c) the appellee is a legal secretary earning approximately $640 per month.

We have searched this record in vain seeking support for the lump sum alimony award of $4,000. The pnly semblance of a basis for the award would be the trial court’s finding that the appellant had sold a Mark IV Continental he bought in his business and he had sold a 1971 Mercury that the appellee used when the parties were living together and that appellant took a good share of their furniture when they separated. But the evidence shows appellee received nothing out of the sale of the Continental, and the court was unable to determine from the proof just what interest the wife was entitled to in the furniture and Mercury automobile. Both the pleadings and proof were inadequate in this respect.

An award of lump sum alimony should never be made unless the spouse being required to pay is in a financial position to make payment of such gross award without impairing or endangering his economic status. Yandell v. Yandell, Fla.1949, 39 So.2d 554. Goode v. Goode, Fla.1954, 76 So.2d 794. From the record it appears that the' appellant was not financially able to pay the lump sum award.

Accordingly, we reluctantly find the trial court committed error in awarding lump sum alimony to the appellee and we therefore reverse the final judgment insofar as the lump sum alimony is concerned. However, since other aspects of the final judgment may have been influenced by the lump sum alimony award, we remand the cause to permit the trial court to re-assess the matter and take further testimony if he deems it necessary to properly adjudicate the issues involved.

WALDEN, C. J., concurs.

CROSS, J., dissents without opinion.


author: ROBERTSON, Justice, for the Court: RODGERS, Presiding Justice PATTERSON, Justice

text:
    John Michael JOYCE v. STATE of Mississippi.
    No. 48701.
    Supreme Court of Mississippi.
    Jan. 6, 1976.
    Rehearing Denied Jan. 27, 1976.
    See also, Miss., 327 So.2d 264.

      W. S. Moore, Julie Ann Epps, Thomas J. Ginger, Jackson, for appellant.
    A. F. Summer, Atty. .Gen., by Wayne Snuggs and Vera Madel Speakes, Sp. Asst. Attys. Gen., Jackson, for appellee.
    Before GILLESPIE, C. J„ and SMITH and ROBERTSON, JJ.
   ROBERTSON, Justice, for the Court:

John Michael Joyce was indicted, tried and convicted in the Circuit Court of Rankin County, Mississippi, of the crime of possession of marijuana with intent to sell. His sentence was eight years in the Penitentiary.

About 2:00 p. m., August 27, 1974, Alvin E. Berry, Jr., an agent with the Mississippi Bureau Narcotics, received a telephone call from a confidential informant. The informant advised Agent Berry that he had information that approximately 60 pounds of marijuana would arrive later that afternoon at the Jackson Municipal airport, and that Buddy Rogers and Jeb Grace would pick it up. Berry asked for more information and the informant called back in about 45 minutes and told him that there had been a change in plans and that Larry Wann would meet a subject arriving from Phoenix, Arizona, around 4:00 or 5:00 p. m. with the 60 pounds of marijuana. According to the informant, Wann would buy the marijuana and resell it to Grace and Rogers.

Berry testified that he checked the Bureau’s card index and found a card listing Larry Wann as a possible drug trafficker. He then got from the driver’s license bureau of the Mississippi Highway Patrol an exact description of Wann. Berry, along with four other Bureau agents, then proceeded to the Jackson Municipal Airport to further investigate and check out the information supplied by the informant.

The agents learned that a flight from Phoenix, Arizona, was due to arrive at 5:16 p. m. At approximately 5:10 p. m., as had been predicted by the informant, an individual matching Wann’s description was observed waiting at Gate 15 for the arrival of Delta Flight 520 from Phoenix, Arizona. Wann met appellant and Jo Ann Saczynski when they deplaned, and the three of them went to the baggage claim area where Wann picked up two brown suitcases.

Berry observed from the way Wann was walking that the two suitcases were quite heavy. Wann carried them to his car and put them in the trunk. As all three walked to Wann’s car, the agents observed them nervously looking over their shoulders as if to see if any one were watching or following them. Wann drove very slowly from the parking lot and Berry noted that he frequently looked in the rearview mirror and that Joyce and Saczynski frequently looked behind them through the rear window. When Wann turned onto state highway 475 and reached a point a mile or so from the municipal airport, Berry turned on his blue light and stopped Wann’s car. The other four agents also stopped and approached Wann’s car.

At Berry’s request, Wann opened the trunk of his car, and, upon inquiry by Berry, Wann indicated that the suitcases belonged to appellant Joyce. Appellant refused Berry’s request to open the suitcases unless the agents had a search warrant. Agent Wallace forcibly opened the suitcases and found five white plastic bundles, each containing three kilo bricks of marijuana wrapped in brown paper in one suitcase, and four white plastic bundles, each containing three kilo bricks of marijuana wrapped in brown paper in the other suitcase. A kilo brick usually weighs about 2.-2 pounds, so the 27 kilo bricks weighed approximately 59.4 pounds.

All three occupants of the car, Joyce, Wann and Saczynski, were then placed under arrest, explained their rights, and then taken to the Rankin County jail for confinement.

Appellant first contends that he was convicted of possession with intent to sell marijuana, which this Court has held is not a crime under the laws of the State of Mississippi. Appellant is correct.

In Schloder v. State, 310 So.2d 721 (Miss.1975), we said that possession of marijuana with intent to sell was not made a criminal offense under the provisions of Mississippi Code Annotated section 41-29-139(a), (Supp.1974), but that under the provisions of section 41-29-139(d) (2) (B), (Supp.1974), possession of more than one ounce of marijuana was made a criminal offense.

Since the evidence was clear and uncontradicted that Joyce had in his possession 59.4 pounds of marijuana, the only verdict that the jury could return would be that Joyce was guilty of the crime of having more than 1 ounce of marijuana in his possession. Since the indictment properly charged this lesser offense, we affirm the conviction of this lesser offense, but remand this case for resentencing under section 41-29-139(d) (2) (B), (Supp.1974), for the offense of possession of more than one ounce of marijuana.

Appellant also assigns as error the overruling of his motion to quash indictment because the grand jury returning the indictment was not legally constituted and for that reason the indictment would be void. This argument was based on the fact that appellant was indicted on October 9, 1974, by the grand jury empaneled at the July 1974 term of the Rankin County Circuit Court, which grand jury by order of the circuit court dated September 30, 1974, was “recalled into session on October 8, 1974 at 9:00 o’clock A.M. to consider such matters as may properly be presented to it.”

Appellant’s contention is that the grand jury empaneled at the July 1974 term went out of existence when the July term ended, and that also the August, 1974, term intervened. This would have been a good argument if the offense had occurred and if the appellant had been indicted before February 1, 1973, but by House Concurrent Resolution No. 4 of the 1972 regular session of the Legislature, section 264 of Article 14 of the Mississippi Constitution was amended. H.C.R. No. 4 was entitled:

“A CONCURRENT RESOLUTION to amend Section 264, Mississippi Constitution of 1890, to allow the Grand Jury to remain empaneled between terms of Circuit Court.”

This amendment was ratified by the electorate and was inserted in the Constitution on November 22, 1972. Section 264, as amended, reads:

“The legislature shall, by law, provide for the qualifications of grand and petit jurors. The legislature shall provide by law for procuring a list of persons so qualified, and the drawing therefrom of grand and petit jurors. After February 1, 1973, grand jurors may serve both in termtime and vacation and any circuit judge may empanel a grand jury in termtime or in vacation.” (Emphasis added).

The primary purpose in amending Section 264 was to allow a grand jury to remain empaneled until the next term of criminal court. The intervening August 1974 term of court, according to legislative mandate in Mississippi Code Annotated section 9-7-53 (1972), was “for civil business exclusively”. The October, 1974, term was the next term of court at which criminal business could be heard and a grand jury empaneled, but this term could not legally open until October 14, 1974. The court was correct in recalling the July 1974 grand jury to act in vacation between terms.

Appellant next contends that: “Thé trial court erred in overruling Appellant’s Motion to Suppress Evidence seized as a result of an unreasonable, unlawful and unconstitutional arrest, search and seizure.”

Joyce argues that “at the time of the arrest, the officers, who acted without a warrant, lacked probable cause to believe that a felony had been committed or that Appellant and his co-indictees were the persons who had committed that felony so as to justify the warrantless search of the automobile and its contents as incident to a lawful arrest.”

In Wolf v. State, 260 So.2d 425 (Miss. 1972) (cert. denied, 409 U.S. 1042, 93 S. Ct. 535, 34 L.Ed.2d 492), this Court said:

“On the probable cause question, the standards applicable to a search of an automobile without a warrant are substantially the same as those required for a search warrant. Whiteley v. Warden, Wyoming State Penitentiary, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971).
“Aguilar [Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964)] laid down the two-pronged test applicable to the factual basis supporting a magistrate’s assessment of probable cause for a search warrant, and that test applies with respect to an officer's assessment of probable cause for a war-rantless search. As already stated, the defendant in this case concedes that the informer involved here was reliable under the Aguilar test. It remains to be determined whether the evidence offered on the motion to suppress was sufficient to meet the Aguilar basis-of-knowledge test [as] applied and expounded on in Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). In the later case of United States v. Har ris, 403 U.S. 573, 91 S.Ct. 2075, 29 L. Ed.2d 723 (1971), the Court again considered the requirements of the underlying factual basis necessary for the issuance of a search warrant, and enunciated the court’s commonsense and nontechnical approach in reviewing probable cause questions by quoting from United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965), as follows:
“[T]he Fourth Amendment’s commands, like all constitutional requirements, are practical and not abstract. If the teachings of the Court’s cases are to be followed and the constitutional policy served, affidavits for search warrants, such as the one here, must be tested in a commonsense and realistic fashion. They are normally drafted by the non-lawyers in the midst and haste of a criminal investigation. Technical requirements of elaborate specificity once exacted under common law pleadings have no proper place in this area. A grudging or negative, attitude by reviewing courts toward warrants will tend to discourage police officers from submitting their evidence to a judicial officer before acting. (91 S.Ct. at-2079, 29 L.Ed.2d at 730).”
260 So.2d at 428. (Emphasis added).

Agent Berry testified that he had dealt with the confidential informant on “numerous” occasions in the past two-and-a-half months, and that he had found him honest, credible and reliable. The information furnished was not only investigated and corroborated, when first received, but also when the agents went to the airport and personally observed Joyce, Wann and Sac-zynski as they met, picked up two heavy suitcases as their baggage, nervously and apprehensively looked over their shoulders as they proceeded to Wann’s car and locked the suitcases in the trunk, and finally as they drove away with Wann checking through the rearview mirror and Joyce and Saczynski through the rear window to see if they were being watched or followed.

As this Court said in Strode v. State, 231 So.2d 779 (Miss.1970):

“The second reliability test is an attempt to guard against tips provided by untruthful or unreliable informers, and suggests that an informer is credible if he has provided truthful tips in the past. Moreover, the information may be deemed reliable if corroborated by independent investigation. Both tests require only that some of the underlying circumstances be sworn to. Furthermore, in Spinelli, the Court indicated that the basis-of-knowledge test could be fulfilled without a statement of the circumstances from which the informer derived his information; i. e., if a tip is sufficiently detailed, it may be self-verifying, and one may conclude that the informer was not relying on mere rumor. In the instant case, the tip, because of its great detail and corroboration, was self-verifying, and in addition, there was independent corroboration by the New Orleans officers.” (Emphasis added). 231 So.2d at 783.

The tip verified itself in this case. The informant advised that approximately 60 pounds of marijuana would be brought in on a flight from Phoenix, Arizona, to the Jackson Municipal Airport on August 27, 1974, at approximately 5:00 p. m.; that Larry Wann would meet the subject bringing in the marijuana and would transport it away from the airport. Wann did meet Joyce and Saczynski; Wann did pick up two suitcases, carry them to his car and lock them in the trunk, and finally Wann did drive carefully away from the airport with the contraband under lock and key in the car trunk.

Not only does the evidence prove the tip to be self-verifying, but also that an independent investigation was made before Wann’s car was stopped and searched. The narcotics agents observed Wann picking up two very heavy suitcases at the baggage checkout and carrying them to his car. Sixty pounds of marijuana compressed in kilo bricks does not occupy much space. It could be carried in suitcases, but it would make them heavier than usual. They observed Joyce and his companions furtively and nervously looking around to see if anyone was watching them and then as they drove slowly away from the airport the agents observed Wann, the driver, frequently looking in his rearview mirror and appellant and Saczyn-ski, the passengers, frequently looking through the rear window.

In Polanco v. Estelle, 507 F.2d 81 (5th Cir. 1975), the Fifth Circuit Court of Appeals said:

“Regardless of the sufficiency of the affidavit as to the informer’s reliability, the facts revealed by the police surveillance furnished independent corroboration of the informant’s tip sufficient to establish probable cause.” 507 F.2d at 82.

Also, the narcotics agents in this case were working under emergency conditions and in an extremely tight timeframe. The final information from the confidential informant was not furnished until about 2:45 p. m. A physical description of Wann had to be obtained. Agent Berry had to enlist the help of four other narcotics agents, brief them, assign duties, and otherwise organize the joint operation.

One flight from Phoenix, Arizona, would arrive at 4:05 p. m. The agents had to travel about 10 miles from their headquarters in Jackson to the Jackson Municipal Airport in Rankin County, and be there to check this flight. Nothing arrived, so the agents waited at the airport for 'the 5:16 p. m. flight.

The contraband on arrival by plane would be moved immediately by automobile to an unknown location. The narcotics agents simply did not have time, under the exigent circumstances of this case, to locate a magistrate and secure a search warrant.

We said in Hall v. State, 288 So.2d 850 (Miss.1974):

“There is a constitutional difference between searches of houses and cars. Cady v. Dombrowski, supra [413 U.S. 433, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973)]. For reasons stated in Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925); and Wolf v. State, 260 So.2d 425 (Miss.1972), cert. denied, 409 U.S. 1042, 93 S.Ct. 535, 34 L.Ed.2d 492 (1972), the warrantless search of an automobile, because of its mobility, presents a different problem from a war-rantless search of a house. An automobile may be searched, given the proper circttmstances, without a warrant either as an incident to a valid arrest or because there is probable cause that the vehicle itself may be evidence of crime or contain something that offends against the law. (Emphasis added).
>}C 5j< ‡ ‡
“The courts have struggled, largely in vain, to fashion practical standards for determining the reasonableness of a war-rantless search of a motor vehicle. The difficulty lies in the infinite variety of factual situations confronted by law enforcement officers in the line of duty. The courts can best serve the administration of justice by recognizing that although the court must determine whether a search is reasonable, the officer’s action must be reviewed in light of the practical, everyday affairs of life.” 288 So.2d at 851-52.

In Strode, Chief Justice Ethridge also suggested a common sense test in determining whether there was probable cause, when he said:

“Probable cause is a practical, nontechnical concept, based upon the conventional considerations of everyday life on which reasonable and prudent men, not legal technicians, act.” 231 So.2d at 782.

Under the emergency conditions of the case at bar, we think the narcotics agents acted as reasonable and prudent men when they stopped the moving car of Wann and searched it for contraband, without having first obtained a search warrant.

In assignment of error No. 4, the appellant contends that: “The trial court erred in sustaining the prosecution’s objections to questions designed to show that John Robertson was the confidential informant in this case; . . . . ”

This Court adopted the McCray rule [McCray v. Illinois, 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62 (1967)], in Strode, modifying and overruling a long line of cases in so doing:

“In summary, we adopt the following rule: In any preliminary hearing in a criminal trial or other proceeding, the evidence of information communicated to a peace officer from, a confidential informer, who is not a material'witness to the guilt or innocence of the accused of the offense charged, shall be admissible on the issue of reasonable cause to make an arrest or search, without requiring that the name or identity of the informer be disclosed, if the fudge or magistrate is satisfied, based upon evidence produced in open court, out of the presence of the piry, that such information was received from a reliable informer and in his discretion does not require disclosure of the informer’s identity.” 231 So.2d at 784. (Emphasis added).

In assignment of error No. 5, the appellant contends that:

“The trial court erred in overruling the Appellant’s Motion to Quash Indictment and Petit Venire, which alleged that Miss. Code Ann. § 13-5-1 (1972)- — insofar as it denied the right, duty and obligation of persons 18, 19, and 20 years of age, to serve on grand and petit juries in Mississippi — was violative of the rights guaranteed to this Appellant under the Due Process Clause of the Fourteenth Amendment to the Constitution of the United States.”

This Court answered this same contention in Johnson v. State, 260 So.2d 436 (Miss.1972), wherein we said:

“It is alleged that there were no jurors within the age group of appellant (18-20) on either the grand jury or the petit jury. It is argued that because this age group has been permitted by amendment to the United States Constitution to register and vote, they should be on the jury lists. Our Legislature has prescribed qualifications for jurors in Section 1762 Mississippi Code 1942 Annotated (Supp.1971); and as a part thereof is the requirement that jurors be twenty-one years of age or older. The fact that the Constitution of the United States was amended by Amendment XXVI does not qualify persons under twenty-one years of age as jurors under State laws.” 260 So.2d at 437.

The same answer was made in State v. Spivey, 328 A.2d 414 (R.I.1974); Payne v. State, 233 Ga. 294, 210 S.E.2d 775 (1974); State v. McKinney, 302 So.2d 917 (La. 1974); Hopkins v. State, 19 Md.App. 414, 311 A.2d 483 (1973); and Shelby v. State, 479 S.W.2d 31 (Tex.Cr.App.1972). Federal courts are likewise in accord. United States v. Olson, 473 F.2d 686 (8th Cir. 1973), cert. den. 412 U.S. 905, 93 S.Ct. 2291, 36 L.Ed.2d 970, and the many cases cited therein; United States v. Dukes, 479 F.2d 324 (5th Cir. 1973); and United States v. McVean, 436 F.2d 1120 (5th Cir. 1971), cert. den. 404 U.S. 822, 92 S.Ct. 45, 30 L.Ed.2d 50.

The conviction of the lesser offense of possession of more than one ounce of marijuana is affirmed, but this case is remanded to the trial court for resentencing for this lesser offense.

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

Affirmed as to lesser offense, but remanded for resentencing.

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

PATTERSON and INZER, JJ., dissent.

RODGERS, Presiding Justice

(concurring) :

I concur in the conclusion reached by the majority opinion in this case. I think that the search for contraband under the facts here exhibited was properly conducted by the officers without a search warrant-for the following reasons.

The officers had information from a reliable informer that contraband (marijuana) would arrive in Jackson, Mississippi, at a certain time and place. Of course, the officers could not obtain a search warrant because they did not know what was to be searched. They proceeded to investigate the person who was said to be the one who would “pick up” the contraband. The officers went to the airport and, after having located the suspect, observed his acts in obtaining heavy suitcases, and the acts of the other persons who joined the suspect. These observations, in my judgment, gave the officers probable cause to believe that the suspect and his companions had contraband in their possession. It, therefore, became the duty of the officers to search for and seize any existing contraband.

The Fourth Amendment to the United States Constitution is based upon the words “against unreasonable searches” and “upon probable cause.” See 79 C.J.S. Searches And Seizures § 8, at 786 (1952).

It may be emphasized that a search of automobiles which are constantly being moved is in a different situation from the search of a house or a permanently located “place.” Martin v. State, 190 Miss. 898, 2 So.2d 143 (1941); Cooper v. State of California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed. 2d 730 (1967). The search of an automobile, however, must meet the test of reasonableness. Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964). Nevertheless, it is well settled in this state [Eady v. State, 153 Miss. 691, 121 So. 293 (1929)], and under the Federal rule that a motor vehicle moving upon the highways may be searched for contraband if the facts are such as to warrant a man of reasonable caution to believe that contraband is being transported in violation of law. Jones v. State, 170 Miss. 741, 155 So. 416 (1934); Story v. City of Greenwood, 153 Miss. 755, 121 So. 481 (1929); Moore v. State, 138 Miss. 116, 103 So. 483 (1925); Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543, 39 A.L.R. 790 (1925); Saldana v. Beto, 394 F.2d 827 (C. A.5th 1968); Bailey and Smith v. United States, 386 F.2d 1 (C.A.5th 1967); Maltos-Roque v. United States, 381 F.2d 130 (C.A.5th 1967); Kudy and Langtry v. United States, 48 F.2d 1076 (C.A.6th 1930); Johnson v. State, 8 Md.App. 28, 257 A.2d 756 (1969); 79 C.J.S. Searches And Seizures § 17, at 792 (1952).

Moreover, such facts may be communicated to an officer not only by a reliable source stating that the automobile contains contraband, but such probable cause may be determined by any of the officer’s five senses, for example, the smell of marijuana [Fernandez v. United States, 321 F.2d 283, 286 (C.A.9th 1963)] or the smell of intoxicating liquor [Eady v. State, supra].

This rule is not based upon the authority of the officer to make an arrest. The United States Supreme Court pointed this out in Carroll, supra, wherein the Court said:

“But the theory is unsound. The right to search and the validity of the seizure are not dependent on the right to arrest. They are dependent on the reasonable cause the seizing officer has for belief that the contents of the automobile offend against the law.” (267 U.S. 158, 159, 45 S.Ct. 287, 39 A.L.R. 803)

The right to search an automobile for contraband does not give an officer the authority to search an automobile upon mere suspicion, or so-called “hunches.” This Court has pointed out that the fact that the officers failed to make an arrest after a lawful search did not prevent the introduction of the evidence obtained by the search. See the cases cited in Pendergraft v. State, 191 So.2d 830, 838 (Miss.1966). An officer’s authority must be based upon the reasonable belief and understanding of an ordinary reasonably prudent man under similar circumstances, that contraband is being unlawfully transported in the automobile sought to be searched. See the cases collected in Annot., 89 A.L.R.2d 715, 734 (1963); Jones v. State, 170 Miss. 741, 155 So. 416 (1934); Smith v. State, 160 Miss. 56, 133 So. 240 (1931); 79 C.J.S. Searches And Seizures § 66, at 838 (1952).

An officer is not the final judge as to whether' or not he has acted on probable cause or had sufficient information on which to act. Probable cause is an issue for the court to decide. McGowan v. State, 184 Miss. 96, 185 So. 826 (1939); Creel v. State, 183 Miss. 158, 183 So. 510 (1938); McNutt v. State, 143 Miss. 347, 108 So. 721 (1926); Moore v. State, 138 Miss. 116, 103 So. 483 (1925); 79 C.J.S. Searches And Seizures § 8, n. 54, at 787 (1952).

It is pointed out by the text writer in 79 C.J.S. Searches And Seizures § 8, at 787-88 (1952):

“What constitutes a reasonable or unreasonable search and seizure in any particular case is purely a judicial question, determinable from a consideration of the circumstances involved, including the purpose of the search, the presence or absence of probable cause, the manner in which the search and seizure was made, the place or thing searched, the character of the articles procured, and the nature and importance of the crime suspected.”

Of course, the lawfulness of a search cannot be established by what is brought to light by the search; however, it has been pointed out that the officer’s claim of good faith in making the search and seizure may be materially supported by the subsequent discovery of contraband being then and there illegally transported. See 79 C.J.S. Searches And Seizures § 51, at 810 (1952).

The reasonable search of an automobile without a warrant is based upon the doctrine of an emergency, and in this case, there was not sufficient time for the officers to obtain a search warrant for the automobile in which the contraband was being transported.

I, therefore, concur in the majority opinion in this case.

PATTERSON, Justice

(dissenting):

The illogic of an ancient principle outweighing sixty pounds of marijuana is reflected by the vote in this case. In my opinion, however, the Bill of Rights of the Constitution is worthy of protection from the erosions of the moment.

The concept of the citizens’ security from unreasonable searches and seizures by an agency of the government, either state or federal, is of early origin and is imbedded in the Fourth Amendment to the United States Constitution and Article 3, Section 23, Mississippi Constitution (1890) under their Bills of Rights. The need of security from governmental oppression was earlier expressed in two English cases, Entick v. Carrington, 19 How.St.Tr. 1029 (1765), and Wilkes v. Wood, 19 How.St. Tr. 1153 (1763). The statement of Lord Chief Justice Pratt in Wilkes is as appropriate now as it was then. It is:

. . . A discretionary power given to messengers to search wherever their suspicions may chance to fall . . . certainly may affect the person and property of every man in this kingdom, and is totally subversive to the liberty of the subject. (19 How.St.Tr. at 1167).

I observe from the record no fact other than hearsay conversation, four times removed, to support this warrantless search. The corroborating circumstances, both legal and usual, of there being an inbound flight to this city from Arizona where a suspect from the hearsay conversation would meet an unknown passenger with luggage, does not, in my opinion, ascend to probable cause. However, assuming these factors equate with probable cause, then I think the determination should have been made by a neutral and detached judge and a warrant issued so that the citizen’s right against unreasonable searches and seizures could hve been protected. There was time, in my opinion, for the officers to have obtained a search warrant and they, if impressed by the facts at hand, should have obtained one.

The self-verification of probable cause by the majority opinion is anchored to the sixty pounds of contraband revealed by the forceful search of the appellant’s luggage. Without it there would have been no verification and of course we have held on numerous occasions, as other courts have done, that the result will not be considered in determining whether probable cause existed at the time of the search. I presently fear that suspicions and assumptions have been carefully nurtured and forced to blossom into probable cause.

This Court is often exposed to the difficult question of determining probable cause and in each instance there is contraband or other evidence before' our eyes, buttressing the officer’s good intentions in making a warrantless search. We are not exposed to the other side of the coin, the trespass upon the individual’s right of security when the search reveals nothing. The victim has only the fruitless, futile and expensive right to sue the officer for the abuse. This encourages his silence and promotes the erosion of the great principle.

I therefore dissent and hope that the constant exposure to one side of the coin will not cause us to become forgetful and thus callous to the other.

INZER, J., joins in this dissent.


author: RODGERS, Presiding Justice, for the court: PATTERSON, Justice

text:
    Larry Alan WANN v. STATE of Mississippi.
    No. 48702.
    Supreme Court of Mississippi.
    Jan. 6, 1976.
    Rehearing Denied Jan. 27, 1976.
    W. S. Moore, Julie Ann Epps, Thomas J. Ginger, Jackson, for appellant.
    A. F. Summer, Atty. Gen., by Vera Ma-del Speakes, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before RODGERS, P. J., and SUGG and BROOM, JJ.
   RODGERS, Presiding Justice, for the court:

Larry Alan Wann was indicted, tried and convicted in the Circuit Court of Rankin County, Mississippi, on a charge of possession of marijuana with intent to sell.

The facts in this case are set out in the companion case of Joyce v. State, 327 So.2d 255, this day decided by this Court. We have reached the same conclusion in the instant case as was decided in the Joyce case, that is to say, the judgment of the trial court is affirmed as to the conviction of the lesser included offense of possession of more than one (1) ounce of marijuana, and the case is remanded to the trial court for resentencing of the defendant for the lesser crime.

The only other argument m the case now before the Court which requires additional comment is an instruction as to the law on “aiding and abetting” obtained by the prosecuting attorney. Even if we were to concede this instruction to be erroneous, it is harmless, because the defendant knowingly carried the contraband in his automobile and is thus guilty of possession, rather than simply aiding another in the commission of a crime. The instruction as written actually imposed an unnecessary burden on the prosecution.

The judgment of conviction of possession of more than one (1) ounce of marijuana is affirmed, arid the case is remanded to the trial court for resentencing for the lesser included offense. This case was considered by a conference of the justices en banc.

Affirmed as to lesser included offense and remanded for resentencing.

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

PATTERSON and INZER, JJ., dissent.

PATTERSON, Justice

(Dissenting):

With deference I disagree. See the remarks in dissent in Joyce v. State of Mississippi, Miss., 327 So.2d 255, decided this date.

INZER, J., joins in this dissent.


text:
    Charles Ray JOHNSON v. STATE of Mississippi.
    No. 48836.
    Supreme Court of Mississippi.
    March 2, 1976.
    W. C. Trotter, III, Belzom, for appellant.
    A. F. Summer, Atty. Gen., by Wayne Snuggs, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON and INZER, P. JJ., and SMITH, J.
   Affirmed.

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


text:
    Clifford C. FRISBY v. Moody GRISHMAN.
    No. 48517.
    Supreme Court of Mississippi.
    March 2, 1976.
    Kelly McKoin, Biloxi, for appellant.
    Thomas J. Wiltz, Biloxi, for appellee.

      Before PATTERSON and INZER, P. JJ., and SMITH, J.
   Affirmed on direct and cross appeals.

GILLESPIE, C. J., and ROBERTSON, SUGG and BROOM, JJ., concurring.

WALKER, J., took no part.


text:
    Jeanette V. METTS v. MONTCLAIR, INC. and Westinghouse Electric Corporation.
    No. 48493.
    Supreme Court of Mississippi.
    March 2, 1976.
    Sullivan, Sullivan & Keyes, Jackson, for appellant.
    Daniel, Coker, Horton, Bell & Dukes, Donald V. Burch, Satterfield, Shell, Williams & Buford, Cary E.- Bufkin, William L. Colbert, Jr., Jackson, for appellees.
    Before INZER, P. J., and SMITH and SUGG, JJ.
   Affirmed.

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


text:
    Aileen CLARK v. GARAN, INC. and Insurance Company of North America.
    No. 48542.
    Supreme Court of Mississippi.
    March 2, 1976.
    Maynard, Fitzgerald, Bradley & Chaffin, Clarksdale, for appellant.
    Watkins & Eager, Velia Ann Mayer, Jackson, for appellees.
    Before GILLESPIE, C. J., and ROBERTSON and WALKER, JJ.
   Affirmed.


text:
    James L. CLARK v. STATE of Mississippi.
    No. 48878.
    Supreme Court of Mississippi.
    March 2, 1976.
    Brooks & Guyton, Kosciusco, for appellant.
    A. F. Summer, Atty. Gen., by Catherine Walker, Sp. Asst. Atty. Gen., Jackson, for appellee.

      Before PATTERSON, P. J., and ROBERTSON and SUGG, JJ.
   Affirmed.

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


text:
    FIRST OF GEORGIA INSURANCE COMPANY v. Mrs. Bess Jean BEANE, Administratrix of the Estate of George H. Beane, Deceased. Mrs. Bess Jean BEANE, Administratrix of the Estate of George H. Beane, Deceased v. FIRST OF GEORGIA INSURANCE COMPANY and the Maryland Casualty Insurance Company.
    No. 48489.
    Supreme Court of Mississippi.
    March 2, 1976.
    Mitchell, Rogers & Eskridge, Tupelo, for Beane.
    Watkins & Eager, and Velia Ann Mayer, Jackson, for First of Georgia Ins. Co.
    Darden & Sumners, New Albany, representing Maryland Cas. Ins. Co.
    Before INZER, P. J., and SMITH and ROBERTSON, JJ.
   Affirmed on direct and cross appeal.

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


text:
    STATE of Mississippi v. McBEATH ENTERPRISES, INC.
    No. 48471.
    Supreme Court of Mississippi.
    March 2, 1976.
    A. F. Summer, Atty. Gen., by Mary Libby Payne, Asst. Atty. Gen., Jackson, for appellant.
    Perry, Phillips, Crockett & Morrison, Jackson, for appellee.
    Before GILLESPIE, C. J., and SMITH and ROBERTSON, JJ.
   Affirmed.


text:
    Frank TERRACINA, father and next friend of Steve Terracina, a minor v. Philip MANSOUR, father and next friend of Philip Mansour, Jr., a minor.
    No. 48520.
    Supreme Court of Mississippi.
    March 2, 1976.
    Dyer, Dyer & Dyer, Greenville, for appellant.
    Campbell, DeLong, Keady, Robertson & Hagwood, Greenville, for appellee.
    Before GILLESPIE, C. J., and WALKER and BROOM, JJ.
   Affirmed.


text:
    In re Last WILL and Testament of Carnellyor Squire FOSTER, Deceased. Mrs. Queenie LOTT v. Mrs. Cliffalene Milner EVANS.
    No. 48536.
    Supreme Court of Mississippi.
    March 2, 1976.
    Jack Parsons, Thomas M. Matthews, Jr., Wiggins, Leon L. Shelton, Jackson, for appellant.
    Chill, Chill & Dove, Jackson, for appel-lee.
    Before PATTERSON, P. J., and ROBERTSON and SUGG, JJ.
   Affirmed.


author: ROBERTSON, Justice.

text:
    Gerard A. HARRISON et al. v. Douglas C. WYNN.
    No. 48532.
    Supreme Court of Mississippi.
    Feb. 24, 1976.
    Rehearing Denied March 16, 1976.

      Breland & Whitten, Sumner, for appellants.
    Campbell, DeLong, Keady, Robertson & Hagwood, Greenville, for appellee.
    Before INZER, ROBERTSON and BROOM, JJ.
   ROBERTSON, Justice.

This is an appeal by Gerard A. Harrison, Harrison Ranch, Inc. and Cattle Coaches, Inc., from a decree of the Chancery Court of Washington County awarding a money judgment against them in favor of Douglas C. Wynn in the total sum of $81,972.86.

Harrison Ranch Inc. and Cattle Coaches Inc. are corporate entities principally or wholly owned by Gerard A. Harrison.

Harrison (this reference will include all appellants) was a man having substantial business interests in several states, including, among others, the large scale commercial raising of catfish. He owned considerable quantities of land in both Arkansas and Mississippi, his Mississippi land lying in Washington, Tallahatchie and Hum-phreys Counties. Wynn is a lawyer, engaged in the general practice of law in Greenville, to some extent specializing in the fields of transportation and admiralty.

Wynn had represented Harrison in several matters, not connected with the situation out of which the present litigation arose. The association between Harrison and Wynn continued intermittently from its beginning sometime in 1964 into 1968.

On December 30-31 of 1968, Harrison and Wynn entered into an agreement involving the conveyance by Harrison to Wynn of 1200 acres of land in Humphreys County. This transaction was evidenced by five written documents. These were:

(1) The contract of sale;
(2) The warranty deed executed by Harrison conveying the land to Wynn;
(3) The promissory note for $248,200 executed by Wynn payable to Harrison for (part of) the purchase price;
(4) Purchase money deed of trust on the subject land securing the note executed by Wynn; and
(5) The so-called “buy-back” agreement executed by both Harrison and Wynn.

There was a lengthy trial and a great deal of testimony on both sides.

The controversy, in the main, however, turns upon obligations claimed by Wynn to have been assumed by Harrison under the “buy-back” agreement. The chancellor stated it thus:

It is immmediately seen that Wynn can prevail only on the validity of the “Buy-Back Agreement” and Harrison can prevail only on the invalidity thereof.

The “buy-back” agreement (in part) was as follows:

[I]t is hereby covenanted and agreed by and between Harrison and Wynn that, at any time for a period of three years from and after the date hereof, on written demand made by Wynn to Harrison, Harrison will purchase or cause to be purchased from Wynn the above lands, at the same price paid by Wynn therefor, plus any interest, taxes or other payments made or paid by Wynn, and, in the event of such payment, Wynn shall deliver a warranty deed to Harrison, or his assigns, conveying said property free and clear of all liens except the above stated or any replacements thereof. It is the intent of the parties that Wynn shall be indemnified in full for any costs, expenses, etc. incurred by him in the ownership of said property, should he elect to reconvey said property to Harrison under this Agreement.

Harrison testified that he did not remember ever having signed the “buy-back” agreement and said that he had known nothing of its existence until it was brought to his attention by Wynn more than two years later when Wynn called upon him to “buy back” the land under its terms. It is not disputed, however, that the agreement does, in fact, bear Harrison’s signature and this was not denied by Harrison under oath in his pleadings as required by statute' nor did Harrison deny it when he testified at the trial. As to whether Harrison knowingly signed this agreement and understood it, the testimony of Harrison and Wynn is directly and irreconcilably conflicting. The chancellor found this issue against Harrison.

There is testimony to the effect that Harrison hurried the closing of the deal in order to complete it “before the end of the year” so that he might obtain some tax advantage. In any event, when the documents had been executed, Harrison hypoth-ecated Wynn’s note to his bank in Texas, and when Wynn failed to pay, the legal department of the bank sought to collect the note from Wynn. Wynn failed or declined to pay the note and called on Harrison to buy the land back and to reimburse him as provided in the “buy-back” agreement.

The note not having been paid, the bank foreclosed. Suit was then brought by the bank against both Harrison and Wynn for the deficiency. Harrison and Wynn settled that suit with the bank, but reserved their rights against each other. Wynn, having called upon Harrison within three years to fulfill his obligations under the “buy-back” agreement and buy the land back and Harrison having declined to do so, the present litigation between Wynn and Harrison ensued.

Harrison urges that, since his relationship with Wynn in several matters had been that of attorney and client, their relationship was fiduciary in character and gave rise to a presumption of overreaching or undue influence on Wynn’s part and rendered the agreement invalid. If it should be assumed that such a presumption arose, both Harrison and Wynn testified at length and in great detail concerning every facet of the transaction between them and each gave a different account of the material facts. In so doing, the facts and circumstances were fully developed and disclosed by the testimony of the contending parties, both of whom were, of course, alive and under no disability. The decision thus became one for the chancellor as trier of facts, upon the conflicting evidence, not upon the presumption alone.

The chancellor accepted Wynn’s version of the facts and rejected Harrison’s, finding from the evidence that Harrison had not been overreached or overper-suaded by Wynn in executing the several documents, including the “buy-back” agreement.

The evidence justifies the conclusion that Harrison initiated the deal, that the proposition was made by Harrison to Wynn, that Harrison fixed the price and terms and it by no means appears that the price agreed to was inadequate. We are unable to say that the chancellor’s decision on the facts in the record is manifestly wrong.

In 7 C.J.S. Attorney And Client § 127 b.(1), (1937) it is said:

Notwithstanding the absolute manner in which the general rule that all transactions or dealings between attorney and client are presumptively fraudulent and invalid is often stated, it is mainly a rule of equity or public policy which is not inflexible, but may be relaxed or varied in its application according to the circumstances. Moreover, it is founded on the theory that confidence or influence was reposed in the attorney, and abused to the injury of the client or the advantage of the attorney, so that the mere relationship of attorney and client is not sufficient to invalidate a transaction without the appearance of these facts, or such circumstances as will permit a deduction or assumption that they existed, and if the circumstances are such as to preclude an assumption or presumption that confidence was reposed and that undue influence was exercised with respect to the matter involved the general rule does not apply.
In light of the foregoing, it may be said that the validity of a dealing between an attorney and client in a particular case is dependent to a certain extent on its own circumstances, the equities of the' parties, and the possibilities that the attorney had to exercise influence or fraud . . . . [I]t is frequently recognized that the beneficent protection of the general rule is not always needed as some clients may be shrewder or better positioned than some attorneys in business deals; and if the case is one in which the attorney possesses no particular knowledge or influence by reason of his position or training, and the client is an intelligent and experienced businessman who is as well or better informed than the attorney with reference to the material facts and likely to exercise his own independent judgments, the transaction will often be sustained unless a breach of faith or unfair dealing on the part of the attorney is clearly shown. In other words, if the parties are sui juris and deal with each other on terms of equality as between men competent to make their own contracts, the law does not deny to the attorney a right to the fruits of open dealings with his client in business matters in which the client is amply able to protect himself, at least where a breach of faith or unfair dealing on the part ’ of the attorney is not clearly shown.

It is also suggested on the part of Harrison that the parties were in pari delicto, that the transaction was a sham, designed to mislead or defraud Harrison’s bank or some third party or parties in relation to the subject matter. If this had been established to the satisfaction of the chancellor it would not have been sufficient alone to invalidate, the agreement as between Harrison and Wynn or have had the effect of releasing either from his obligations to the other. It is pointed out that the subject matter of the agreement is neither malum in se or malum prohibitum. Although it does now appear, in the light of the after-developed circumstances, that Harrison seems to have acted improvidently in executing the “buy-back” agreement, this does not relieve him from the obligations which he assumed. Both Wynn and Harrison were shown to have had more than ordinary experience in dealing in land and in handling land transactions. The controlling issues in the case were factual and were peculiarly for the determination of the chancellor.

In Morgan v. United States Fidelity & Guaranty Co., 191 So.2d 917 (Miss.1966), the Court said:

Inasmuch as the chancellor determined the factual issues in favor of Guaranty Company, we must consider the evidence in the light most favorable to Guaranty Company.
The chancellor resolved the factual issues on the question of fraud in law [as well as in fact] against Morgan and in favor of Guaranty Company. His findings are amply supported by the evidence, and we are not warranted in disturbing them. The citation of authorities to this effect is wholly unnecessary. (191 So.2d at 918, 922).

The provisions of the “buy-back” agreement obligating Harrison to reimburse Wynn are quite broad and are sufficiently so to cover Wynn’s expenditures and expenses, including attorneys’ fees.

The decree appealed from will, therefore, be affirmed.

Affirmed.

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