author: PATTERSON, Chief Justice,

text:
    STATE of Mississippi et al., Petitioners-Appellants, v. MICHIGAN WISCONSIN PIPELINE COMPANY, Defendant-Appellee.
    No. 50092.
    Supreme Court of Mississippi.
    June 14, 1978.
    As Modified On Denial Of Rehearing July 12, 1978.

      A. F. Summer, Atty. Gen., T. E. Childs, Jr., Sp. Asst. Atty. Gen., William A. Allain, Jackson, Townsend, McWilliams & Holla-day, P. J. Townsend, Jr., Drew, Lyon, Crosthwait, Terney & Noble, Champ T. Ter-ney, Indianola, for petitioners-appellants.
    Lake, Tindall, Hunger & Thackston, Charles S. Tindall, Charles S. Tindall, III, Greenville, for defendant-appellee.
    Before PATTERSON, C. J., and BROOM and BOWLING, JJ.
   PATTERSON, Chief Justice,

for the Court:

This is an appeal by the State of Mississippi from a decree of the Chancery Court of Sunflower County allowing Michigan Wisconsin Pipeline Company compensation for lowering its pipelines necessitated by the construction of a drainage canal over its alleged easement across state lands.

In 1955 the Chairman and a commissioner of the Board of Commissioners of the Mississippi State Penitentiary executed and delivered a right-of-way instrument to American Louisiana Pipeline Company to construct and maintain a pipeline across penitentiary land for which the company paid $406. However, the board failed to authorize through its minutes the execution of that instrument. The pipeline was constructed in 1956 and the penitentiary was paid for crop damages. '

Prior to 1966 American Louisiana Pipeline Company merged into and became known as Michigan Wisconsin Pipeline Company (hereinafter Michigan) which is a corporation organized under the laws of Delaware and not qualified to do business in Mississippi. In 1966 pursuant to the previous agreement a second transmission line was constructed parallel to the original for which Michigan paid the penitentiary $405 plus additional sums for damages. By order on its minutes of February 14,1966, the board authorized the acceptance of these payments, referring to the 1955 transaction as an “easement.”

Since the construction and completion of the pipelines, Michigan has transported natural gas from the Louisiana Gulf Coast to terminals in other states. Its sole business activity in Mississippi is the interstate transmission of natural gas.

In accord with legislative enactment to make the farming operation on penitentiary lands profitable, the Mississippi Cooperative Extension Service was awarded a lease in 1974. As a result it recommended to the legislature the lands be improved by adequate drainage because Black Bayou, which flowed through the penitentiary lands, occasionally flooded the area which drained poorly, adversely affecting the farming operations, sewage disposal and use of the roads.

To alleviate these problems the state proposed a drainage canal which would traverse the underground pipelines and requested appellee to lower its pipelines. When Michigan refused to do so without compensation, the state filed a petition in chancery to cancel the 1955 right-of-way agreement, to adjudicate that Michigan had no authority to maintain its lines on penitentiary property, and alternatively, if the court should find Michigan was authorized to maintain its pipelines, then the court mandate they be lowered below the depth of the canal. Michigan denied the allegations in its answer and filed a cross bill seeking an injunction against the state or damages in the alternative. Prior to trial, the parties stipulated that Michigan would lower its transmission lines in 1976 at its expense, but in the event the state received an adverse judgment the Extension Service would recommend an appropriation from the legislature not in excess of $193,387 to pay the actual cost of the operation. Further, if the decision were adverse to Michigan, lowering the lines would be at its expense.

From an adverse decree the state appeals, raising the following issues:

1. Are penitentiary lands public?

2. If so, did Michigan acquire a property interest across the lands?

3. And, if so, which party is liable for expenses incurred in lowering the pipelines?

The first two issues, if answered affirmatively, ultimately raise a conflict of rights between the exercise of the state’s statutory and police powers and the constitutional prohibition against taking private property without compensation.

The state argues that the penitentiary lands in question are not public and hence do not come within the scope of Mississippi Code Annotated section 2780’s (1942) grant of a crossing right. Essentially, the argument is that by “public lands” the legislature meant all state lands not held or reserved for any governmental or specific public purpose and penitentiary lands are accorded a definite purpose and therefore are not public. In the first instance the meaning of public lands must be defined in the context of the statute in which it appears. Here the words of the statute themselves belie such an interpretation. Part of the statute which grants the right specifies that the grant must not interfere with the common use of the lands. Clearly, crossing of state land was contemplated by the legislature when a restrictive clause was expressly inserted authorizing crossing but prohibiting interference with the common use. In Willmut Gas & Oil Company v. Covington County, 221 Miss. 613, 71 So.2d 184 (1954), sixteenth section lands were held to be public although they were held in trust for the benefit of the schools. And, in Gandy v. Public Service Corporation of Mississippi, 163 Miss. 187, 140 So. 687 (1932), in discussing this section as it concerned utilities crossing public lands, we held:

. The plain purpose of the statute is to encourage such enterprises. The courts in construing a statute must seek the real intention of the Legislature and then adopt such interpretation as will give effect thereto .
(163 Miss. at 197, 140 So. at 689)

And see State v. Cumberland Tel. & Tel. Co., 52 La.Ann. 1411, 27 So. 795 (1899). We are of the opinion the penitentiary lands within the contemplation of Section 2780 are public.

The next question is whether Michigan has a valid property interest in these public lands. The state’s grant is encompassed in an instrument of December 2,1955, entitled “Right of Way Contract.” The printed form, prepared by Michigan, specified:

For and in consideration of Four Hundred Six and No/100 Dollars ($406.00) receipt of which is hereby acknowledged the undersigned Frank G. Whitaker, Commissioner, Chairman, Board of Commissioners, Parchman Penal Farm, and C. N. Dorrough, Commissioner (hereinafter called “Grantor” . . ) for themselves, their heirs, executors, administrators, successors and assigns, hereby grant, bargain, sell, convey and specially warrant to American Louisiana Pipe Line Company [Predecessors of Michigan Wisconsin Pipeline Company] a Delaware Corporation, its successors and assigns (hereinafter called “Grantee”), a right-of-way and easement to construct, lay, maintain, operate, alter, repair, replace, change the size of, move and remove a pipe line or pipe lines and appurtenances thereto for the transportation of oil, gas or other substances which can be transported through a pipe line, the grantee to have the right to select, change or alter the route or routes thereof over, through, upon, under and across the following real estate .

The land involved was described as Section 15, Township 24 North, Range 4 West, Sunflower County, State of Mississippi, and the instrument continued:

Should more than one pipeline be laid under this grant at any time by Grantee or its assigns, Grantor shall be paid as consideration therefor a sum equivalent to One Dollar ($1.00) per linear rod of each additional line.
The Grantor shall have the right fully to use .and enjoy the surface of the said premises except for the purposes herein granted to Grantee, provided that the Grantor shall not construct or permit to be constructed any house, structures or obstructions on or over or that will interfere with the construction, maintenance or operation of any pipe line or appurtenances constructed hereunder and will not change the grade of such pipe.line. Grantee hereby agrees to bury all pipe lines constructed hereunder below ordinary plow depth.
Grantee agrees to pay to the owner of said land and to any tenant or lessee thereof, as their respective interests appear, any damages to fences, growing crops and timber which may be caused by constructing, maintaining, altering, repairing, replacing, changing the size of, moving or removing the pipe line and appurtenances constructed hereunder.
TO HAVE AND TO HOLD said right of way unto said Grantee, its successors and assigns forever.

At that time the apparent authority for the transaction was Mississippi Code Annotated section 2780 (1942) which provides in pertinent part:

§ 2780. Right of eminent domain granted to pipe lines.
All companies . . . incorporated for the purpose of building . pipe lines for the conveying and distribution of oil or gas . . . are hereby empowered to exercise the right of eminent, domain . . . and to construct the said pipe lines across . . . public lands . but not in a manner . to interfere with the common use of such . public lands. . . . [A]nd all such companies . . . shall be responsible ... for any injury caused by such construction or use thereof. (Emphasis added.)

At the outset we agree with the state’s contention that the original contract was of doubtful validity because it was not authorized or recorded on the minutes of the Penitentiary Commission, as well as the contention that at the time of the execution of both the 1955 and 1966 transactions there was no statutory authority placing the power to convey an easement across public lands in the Penitentiary Commission.

Neither contention, however, is disposi-tive of the issue of whether Michigan has a valid property interest in the penitentiary land traversed by its lines. The contention that the commission had no power to convey an easement, while true, directs itself to the nature of the interest acquired by Michigan, if any. Similarly, while there is serious doubt as to the validity of the first contract, subsequent transactions and the wording of the enabling statute involved must also be examined to determine whether a valid property interest exists in Michigan.

There is no question but that Section 2780 authorizes pipeline companies to cross public lands. It is, however, not clear how the statute becomes operational, or the mechanics of obtaining initial state permission for use of its lands. As pointed out in Willmut, we held the statute to be largely self-executing as to the grant of the right. We now find additionally persuasive the letter opinions of the Attorney General which express the view that pipeline companies have the right to occupy public lands for transmission purposes without formal acts of the state. In Willmut, supra, we approve the construction of pipelines by a utility company across sixteenth section lands although instruments authorizing the crossing were not first obtained from either the county or the state. We held the right came from Section 2780 without prior authorization from the state or its agency. The decision does require, however, negotiations with the proper authorities as to the restrictions of the statute, but this does not involve the granting clause, but rather the precise location and safety of the passage, consideration and damages.

Additionally, conceding the doubtful validity of the original contract, we note the second transaction was recorded in the minutes and both transactions were apparently entered in good faith and there has been long and continued occupancy by Michigan in reliance on the agreements. Based upon the self-executing nature of the statutory grant, the good faith negotiations and reliance on them, we are of the opinion Michigan has a valid property interest in the penitentiary lands traversed by its lines.

Having concluded there is a valid property interest in Michigan, the question becomes, does that interest prevail over the exercise of the police power of the state in the construction of the drainage canal to promote the public welfare? The resolution of the conflict depends upon several factors, including the nature of the property interest and the legitimate need for the exercise of the police power.

The authority for crossing state lands comes from Section 2780 which we have heretofore held to be self-executing as to the grant. However, that right is “subject to the restrictions stated in [the] statute.” Willmut, supra. The restriction applicable is that pipelines across public lands must be constructed “not in a manner ... to interfere with the common use of such . public land.”

We think the legislature in its wisdom foresaw the grant might interfere with the “common” or public use of the state’s lands and properly cautioned the interest conveyed was subject to the common use. We are of the opinion Michigan’s interest is founded in the statute and it necessarily follows that it is subject to the statute’s limitations. Willmut, supra. We conclude Michigan has a property interest in the lands traversed by its lines but subject to non-interference with the state’s dominion over the land for the public welfare.

It is argued, however, that Willmut, which spoke of the grant authorized by Section 2780 as a “right-of-way only, being a revocable easement,” has been diluted by Southern Bell Telephone & Telegraph Company v. City of Meridian, 241 Miss. 678, 131 So.2d 666 (1961), and its holding has no present value because it was limited to sixteenth section lands. Bell did state the “revocable easement” of Willmut was dicta and “non-decisional,” but this language, in our opinion, destroyed only the characterization of the property interest conferred by Section 2780, leaving the interest, although without name, unimpaired. Actually, the language of Bell was employed to emphasize a contractual property right of greater dignity than a revocable easement. See City of Meridian v. Southern Bell Tel. & Tel. Co., 256 F.2d 83 (5th Cir. 1958). In our opinion Bell, supra, has no present application because it upholds the property right rather than destroying it.

The Willmut decision concluded as follows:

We confine our decision to that necessary to be decided. We consider only the application of Sec. 2780 and Miss. Constitution §§ 95 and 211 to a pipeline right-of-way over sixteenth section lands. We do not consider any question with reference to the application of Sec. 2780 and these constitutional sections to public lands other than school lands. (221 Miss. at 634, 71 So.2d at 191)

Doubtless this language was an attempt to restrict the opinion to sixteenth section lands. If effective for that purpose, which we do not decide, we nevertheless find it presently persuasive to the interpretation of Section 2780 as authorizing a permissive use of public land for pipeline purposes.

In reaching the central question of whether the property interest of Michigan must yield to the police powers of the state, we think it might be helpful to emphasize that this is not a situation where a company has obtained an easement over private lands subsequently acquired by the state but rather involves a right-of-way over state-owned public lands in which readjustments are required to meet a legitimate public need not originally contemplated. It does not involve a “taking” in the sense of an ultimate condemnation of property but is more related to a continuing permissive use granted by the state. In balancing these interests we are of the opinion the state has a legitimate public interest in promoting the general welfare by a canal to make more profitable its land and that the property interest of Michigan is subservient thereto. Its lines do interfere with the common interest and must yield, but in doing so Michigan is not denied its right-of-way, nor is it required to move from the present location. The only imposition upon it, not inconsiderable, is the expense of lo w-ering its lines.

In Chicago, B. & Q. R. Co. v. Illinois ex rel. Grimwood, 200 U.S. 561, 26 S.Ct. 341, 50 L.Ed. 596 (1906), the United Stated Supreme Court held proper the exercise of the state’s police power to require a railroad to build a new bridge at its expense where necessary to accommodate an expanded drainage system for the public. When confronted with the argument that the purpose of the drainage was “(to) reclaim the lands of the district and make them tillable or fit for cultivation,” and therefore was not related to the public health, it was nevertheless held a proper exercise of the police powers, the Court stating:

We hold that the police power of a state embraces regulations designed to promote the public convenience or the general prosperity, as well as regulations designed to promote the public health, the public morals or the public safety. [Citations omitted] (200 U.S. at 592, 26 S.Ct. at 349, 50 L.Ed. at 609)

Similarly, the drainage of the penitentiary lands is its reclamation for increased cultivation and, hopefully, profit. Moreover, the state farm is operated by the Extension Service in this agricultural area and serves an additional public need as an experimental enterprise for the benefit of the state farmers. Also, the drainage, from the evidence, would improve the sewage system at the penitentiary, thereby serving a genuine public purpose.

We conclude Michigan has a property interest in the penitentiary lands subject to the restriction of not interfering with the state in its lawful use of the same. The statutory grant and its restriction are continuing notwithstanding the provisions of written documents whereby the grant is sought to be exercised. Under this circumstance we are of the opinion the expense of lowering its pipelines belongs to Michigan, the appellee, and the trial court erred in not so adjudicating.

For future consideration of similar cases, we make it clear that the permitted exercise of the police powers of the state, as discussed in this opinion, apply primarily to the facts of this particular case. All cases are different and the general police powers of the state should be exercised according to each individual set of facts.. The exercise of the power should not be arbitrary nor oppressive and should be exercised in accordance with corresponding public necessity and in consideration of any constitutional or statutory limitation on such power.

REVERSED AND RENDERED.

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

APPENDIX “A”

Section 2780, Mississippi Code Annotated (1942)

All companies, associations of persons, municipalities, associations of municipalities, or natural gas districts, incorporated or organized for the purpose of building or constructing pipe lines and appliances for the conveying and distribution of oil or gas or for the purpose of constructing, maintaining and operating lines for transmitting electricity for lighting, heating and power purposes, are hereby empowered to exercise the right of eminent domain in the manner now provided by law, and to build and construct the said pipe lines and appliances along or across highways, waters, railroads, canals, and public lands, above or below grounds, but not in a manner to be dangerous to persons or property, nor to interfere with the common use of such roads, waters, railroads, canals and public lands. The board of supervisors of any county through which any such line may pass, shall have the power to regulate, within their respective limits, the manner in which such lines and appliances shall be constructed and maintained on and above the highways and bridges of the county and all such companies, associations of persons, municipalities, associations of municipalities or natural gas districts shall be responsible in damages for any injury caused by such construction or use thereof.

APPENDIX “B”

STATE OF MISSISSIPPI Department of Justice JACKSON

November 8, 1933

Hon. R. D. Moore

State Land Commissioner

Jackson, Mississippi

Dear Sir:

This is in further reference to the petition from the United Gas Public Service Company, addressed to the Governor, Land Commissioner and Attorney General, requesting that these officials recognize or approve its right to occupy certain public lands for pipe line purposes.

It appears that some lands in the state through which its pipe lines run have been sold to the state for non-payment of taxes and title has matured in the state and this company wants what appears to be an official recognition of its right to continue to use the land for this pipe line purpose.

You are advised that I do not find any statutory authority for these officials to grant any such permit and without the authority to do so such a permit would serve no legal purpose. In view of Chapter 26 of the Mississippi Code of 1930, and especially Section 1508, it is my opinion that this company has a right to occupy the public lands for this purpose without any formality in the way of recognition or approval by the state. The above section gives the company the right to use the public land for this purpose. In view of that section, the state could not complain of such use. A purchaser from the State could not complain because he buys the land in view of said section of the Code and his rights therein would be limited accordingly.

I am herewith returning the petition for the permit.

Yours very truly

/s/ Greek L. Rice

ATTORNEY GENERAL

DEPARTMENT OF JUSTICE

State of Mississippi JACKSON

May 11, 1934

United Gas Public Service Company

Jackson

Mississippi

Gentlemen:

This has reference to your request to the State Mineral Lease Commission to grant your company the right or authority for the laying of gathering lines across a small portion of the State Insane Hospital property in Hinds County.

You are advised that I do not find any statutory authority for this Commission to grant any such permit or authority and without the right to do so on the part of the commission such a permit would serve no legal, purpose. However, in view of Chapter 26 of the Mississippi Code of 1930, and especially Section 1508, it is my opinion that this company has a right to use the public lands for the purpose mentioned by you without any formality in the way of recognition or approval by the Commission. The above section gives the company the right to use the public lands for such purposes. In view of that section, the State could not complain of such use.

Yours very truly

(signed) Greek L. Rice

ATTORNEY GENERAL

STATE OF MISSISSIPPI

DEPARTMENT OF JUSTICE JACKSON

December 15, 1937

United Gas Pipe Line Company

Jackson

Mississippi

Attention of Mr. G. L. Gilbert

Gentlemen:

I have your letter of December 13, 1937, enclosing a blue print showing the location of a proposed 4" pipe line that will cross state owned property for the purpose of withdrawing gas from the Martin Heirs # 1 Well, located in the N-Vfe of SW-Vi of NE-Vi, Section 25, Township 6 North, Range 1 East, Hinds County, Mississippi.

You are advised that under Section 1508, Mississippi Code of 1930, it is my opinion that you are thereby given the right to construct, operate and maintain gas pipe lines over and across these public lands, under the terms and conditions stated in that chapter.

Yours very truly,

(Signed) Greek L. Rice

ATTORNEY GENERAL

      . See Appendix “A”. Repealed effective from and after January 1, 1972. Readopted with modifications as Mississippi Code Annotated (1972) § 11-27-47.

      . Letter to Honorable R. D. Moore, State Land Commissioner, of November 8, 1933, to United Gas Public Service Company of May 11, 1934, and to United Gas Pipeline Company of December 15, 1937. Appendix “B".


source: Caselaw Access Project

license: Public Domain

text:
    Robert Earl MOMAN (Morman) v. STATE of Mississippi.
    No. 50521.
    Supreme Court of Mississippi.
    July 12, 1978.
    Mitchell M. Lundy, Grenada, for appellant.
    A. F. Summer, Atty. Gen. by Karen Gil-foy, Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C. J., and WALKER and COFER, JJ.
   REVERSED AND APPELLANT DISCHARGED.

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


text:
    Charles APPLEGATE v. STATE of Mississippi.
    No. 50647.
    Supreme Court of Mississippi.
    July 12, 1978.
    Don 0. Gleason, Greenville, for appellant.
    A. P. Summer, Atty. Gen. by Henry T. Wingate, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C. J., and WALKER and BOWLING, JJ.
   AFFIRMED.


author: BROOM, Justice,

text:
    KING & HEATH CONSTRUCTION COMPANY and New Hampshire Insurance Company v. G. W. HESTER, Jr.
    No. 50271.
    Supreme Court of Mississippi.
    July 12, 1978.
    Downey & Jennings, John H. Downey, Jackson, Armis E. Hawkins, Houston, for appellant.

      Hilbun & Yoste, Charles T. Yoste, Stark-ville, for appellee.
    Before SMITH, P. J., and SUGG and BROOM, JJ.
   BROOM, Justice,

for the Court:

Workmen’s compensation benefits were by order of the administrative judge denied claimant, G. W. Hester, Jr. (appellee). Claimant appealed to the Mississippi Workmen’s Compensation Commission which unanimously affirmed the order of the administrative judge. Then claimant appealed to the Circuit Court of Yazoo County which reversed the commission, and remanded the cause to the commission for determination of degree of disability and award of benefits to claimant. We reverse the circuit court and reinstate the commission’s order.

In April 1974 claimant was employed by King & Heath Construction Company (appellant, employer herein) and was laying plastic water pipes in Yazoo County where the employer was constructing a rural water line. Claimant’s contention is that he got off a tractor which he operated and manually attempted to get a piece of pipe in position so it would properly go into a ditch. He said, “I felt a sharp pain in my back and burning in my back.” His version was that he told fellow employee Butler, “I think I broke my back.”

According to the record, claimant operated the tractor in his work until August 3, 1974, when he voluntarily left his employment. Claimant and the employer’s other workers lived in Webster County but stayed in motels in Yazoo County while at work, and went home on weekends. He worked about twelve hours the day of the accident and continued to work the remainder of the week. During the week following the accident, claimant put in eleven to twelve hours each day. During the five day work week of April 22-26, he put in fifty-four hours. He averaged working eleven hours daily (twenty work days) in the month of May 1974, and about the same per work day thereafter until Friday, August 2, 1974, on which day he worked ten hours and quit his job. He worked the same hours as his coworkers through the summer except he was hospitalized July 8-12. After the alleged injury, claimant’s roommate, Henley (also his travel companion), did not recall that claimant said anything about any job related injury. Henley remembered an occasion when claimant had some medicine which Henley understood was for “rheumatism”; and on one occasion claimant asked Henley for some of Henley’s medicine for “all over” complaints. Claimant’s foreman, Hardin, testified that he never noticed claimant having any difficulty with his work, and he said claimant made no complaint to him. Hardin said that he saw claimant and others engage in wrestling during the summer on different occasions after the alleged injury. Two of the men who wrestled with claimant testified to such activities and stated that claimant never complained to them about his back, although he did wrestle and throw them around.

According to Mr. Heath, who owned the construction company, claimant complained to him one time about the equipment, and stated that he hurt his back jumping on the pipe. Claimant told him on one occasion that he had been to the doctor.

Medical proof submitted for' the claimant was that of a general practitioner, Dr. Laird, who stated that in his opinion claimant was totally disabled, and he attributed the disability to claimant’s April 1974 alleged back injury. Dr. Laird stated that he first saw claimant on account of the back injury on May 4,1974, but Dr. Laird’s clinical notes revealed no indication of any job related accident. The doctor’s notes dated July 5, 1974, make no indication about any job injury, on which date he ordered claimant admitted to the Oktibbeha County Hospital as of July 7. The standard form surgeon’s report which was signed by Dr. Laird and dated August 17, 1974, indicates that the date of the accident was “about 1 month ago.” (Note that a month ago would date the injury July 17). Paragraph 5 of the report asked that the surgeon’s report “[Sjtate in patient’s own words where and how accident occurred,” and there was typed in on the blank, “[W]as pulling on cable and pain started in back.” (This also conflicts with claimant’s version). According to this report, Dr. Laird referred claimant to the VA Hospital, and afterward Dr. Laird’s testimony is that he may have referred claimant to Dr. Tutor in Tupelo, who did not testify although it appears that claimant had surgery on his back in the fall of 1974. Dr. Laird testified that the reason he sent claimant to the Veterans Administration was because “his boss said that they were not going to have anything to do with this” (according to claimant). To the contrary, claimant denied telling the doctor that his supervisor or boss had said they would not pay the bill, and stated he didn’t know “I had workmen’s insurance . . .”

Dr. Lillard, the VA doctor who examined claimant, testified on behalf of the employer and carrier that the claimant gave him no history of being injured on the job. This was admitted by claimant. Dr. Lillard gave claimant an extensive examination which “revealed no signs or symptoms indicating nerve root involvement,” and he found “no mechanical signs or neurologic deficit.” He diagnosed claimant as having “early minimal degenerative arthritis of the spine.”

Dr. Parber (an orthopedist) also testified for the employer and carrier. He examined the claimant April 16, 1975, and noted that claimant had apparently had surgery: “laminectomy of L4 and 5 on the right and there was some narrowing at L4-5 and L5-S1 interspaces . . ..” He evaluated claimant as having fifteen to twenty percent permanent partial impairment of the whole body. Farber’s conclusion was that from a medical standpoint it was improbable that plaintiff could have sustained intervertebral disc injuries with nerve root pressure in April 1974 (which was Dr. Laird’s diagnosis), and thereafter made the work history which the record showed that claimant .did up until August of that year.

Based upon this record, the administrative judge found that the claimant failed “to prove by substantial or the more credible evidence that he suffered an accidental injury that arose out of and in the scope of his employment ... on or about April 10, 1974” with the employer. The full commission unanimously found that the order of the administrative judge “does not contain error of fact or law” and affirmed.

The well established rule in this jurisdiction is that on disputed issues of fact, neither the circuit court nor this Court are triers of fact, and neither will disturb the finding of the commission if it is supported by substantial evidence. Of course, this substantial evidence rule is “flexible to permit the court to check any fundamentally erroneous exercise of administrative power.” Central Elec. Power Ass’n v. Hicks, 236 Miss. 378, 388, 110 So.2d 351, 356 (1959).

We cannot say upon this record that the finding and order of the commission or the administrative judge was not supported by substantial evidence. It may be that had we been sitting as triers of fact we might have found in favor of the claimant; nevertheless, we cannot say that the decision of the commission was fundamentally erroneous in any respect. The controlling issue is: Did the claimant in April 1974 sustain a compensable back injury during the course of his employment with his employer, King & Heath Construction Company? The issue was unanimously resolved by both the administrative judge and the full commission in favor of the employer and carrier. It was upon disputed evidence that the commission made its finding, and careful study of the record does not reveal that the commission made any fundamentally erroneous exercise of administrative power. Neither can we say that the finding violated practical and commonsensical logic. It is significant that the claimant continued his work after April, working regular hours (except for one interval) until August. His testimony and the details of the reports he gave the doctors contained significant inconsistencies and contradictions, and the commission’s task was to resolve the conflicts. Upon the whole record, we are of the opinion that it was error for the circuit judge to reverse the commission’s order and, accordingly, its order will be reinstated.

REVERSED; AND ORDER OF COMMISSION REINSTATED.

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

BOWLING, J., took no part.


author: WALKER, Justice,

text:
    CONTINENTAL CASUALTY COMPANY v. James W. HESTER et al.
    No. 50395.
    Supreme Court of Mississippi.
    July 12, 1978.
    Luckett, Luckett, Luckett & Thompson, William 0. Luckett, Jr., Clarksdale, for appellant.
    Levingston, Jacks, Levingston & Land, Jeffrey A. Levingston, Cleveland, for appel-lees.
    Before SMITH, WALKER and COFER, JJ.
   WALKER, Justice,

for the Court:

This is a suit on an insurance policy. The Circuit Court of Bolivar County on its construction of the clauses in the policy awarded the Hesters $10,000 which the appellant insurance company, in reliance on its interpretation of the policy, had refused to pay.

The Hesters entered into an “umbrella excess third party liability” insurance contract with Continental. The policy provided that the insurer would indemnify the insured for any covered losses which exceeded $10,000 up to a maximum of $1,000,-000. The policy referred to the $10,000 figure as a “retained limit.”

On or about July 25, 1975, a joint and several judgment was entered against ap-pellees, James and William Hester, and also against Roy E. Thedford and Thedford Aero, Inc. The judgment was for $43,-759.91.

After the judgment, the basic insurance carrier of Thedford Aero, Inc. paid $9,500 in partial satisfaction of the debt. Additionally, a deductible on that policy in the amount of $500 was paid by Roy Thedford individually. Thus, Thedford Aero and Thedford individually satisfied $10,000 of the $43,-759.91 joint and several judgment.

The Hesters did not have a basic insurance policy for this type of loss, but did have coverage under the subject umbrella policy. Upon notice that Thedford and his insurer would pay $10,000, the Hesters notified Continental that it was called upon to pay the balance of the joint and several judgment and that the $10,000 paid by Thedford and Thedford Aero, Inc. qualified as the $10,000 “retained limit” referred to in the policy. Continental advised the Hes-ters it did not consider that sum as satisfying the “retained limit” but did satisfy the judgment except for $10,000. Upon Continental’s refusal to pay, the Hesters individually paid the $10,000 to satisfy the judgment, and then brought this suit against Continental to recover the $10,000.

The question presented to this Court is whether or not under the terms of the policy, the $10,000 paid by Thedford and Thedford Aero, Inc. satisfied the “retained limit” requirement.

The applicable provisions of the policy are:

“retained limit” means the amount stated in item 4 [$10,000] of the declarations or any other collectible insurance (other than underlying insurance or insurance purchased specifically in excess of this policy) which is available to the insured. In the event the amount of said other collectible insurance is less than the amount stated in item 4 of the declarations, the insured shall retain for his own account the difference between the amount available to him from said other collectible insurance and the amount stated in item 4 of the declarations; “ultimate net loss” means the sums paid as damages in settlement of a claim or in satisfaction of a judgment for which the insured is legally liable after making deductions for all other recoveries, salvages and other insurances (whether recoverable or not) other than the underlying insurance and excess insurance purchased specifically to be in excess of this policy and also includes investigation, adjustment, appraisal, appeal and defense costs paid or incurred by the insured with respect to damages covered hereunder. “Ultimate net loss” does not include (a) costs and expenses which an underlying insurer has paid or incurred or is obligated to pay to or on behalf of the insured, (b) office costs and expenses of the insured and salaries and expenses of employees of the insured or (c) general retainer fees of counsel retained by the insured.
The company will indemnify the insured, with respect to any occurrence not covered by underlying insurance, or with respect to damages not covered by underlying insurance but which results from an occurrence covered by underlying insurance, for ultimate net loss in excess of the insured’s retained limit, which the insured shall become obligated to pay as damages by reason of liability imposed upon the insured by law or assumed by the insured under any contract because of
personal injury
property damage, or
advertising injury
to which this coverage applies, caused by an occurrence.

The Hesters contend that the portion of the definition of “retained limit” which reads “or any other collectible insurance . . . which is available to the insured,” should be read to include insurance on another party which goes to partial satisfaction of a joint and several judgment. Under this theory, the payment by Thedford and Thedford’s insurer would satisfy .the $10,000 “retained limit” on the Hesters’ umbrella policy. In the alternative, the Hesters argue the phrase is at least ambiguous and therefore should be construed most strongly against the insurer. See State Farm Mutual Auto Ins. v. Taylor, 233 So.2d 805 (Miss.1970).

We reject the Hesters’ contention. While ambiguities in insurance policies should be construed in favor of the insureds, we are of the opinion the policy in question is unambiguous. It is well settled that the words of a contract are to be given their ordinary meanings. Ferguson v. Provident Life & Accident Ins. Co., 170 Miss. 504, 155 So. 168 (1934). The key to the meaning of the phrase “. . .or any other collectible insurance . . . which is available to the insured, lies in the phrase “available to the insured.” “Available” is defined as that which “. . .is accessible or may be obtained: personally obtainable . at disposal especially for sale or utilization.” Webster’s Third New International Dictionary (1971). Clearly, Thedford Aero’s insurance was not at the disposal of the Hes-ters — they had no legal claim on it. Therefore, the insurance was not available to the appellees.

This construction is reinforced when considered in conjunction with the policy’s definition of “ultimate net loss” which states:

“ultimate net loss” means the sums paid as damages ... in satisfaction of a judgment for which the insured is legally liable after making deductions for all other recoveries . . . and other insurances. . . . (Emphasis added).

Thus, the amount paid by Thedford and Thedford Aero was a “recovery” or “other insurance” within the meaning of the above provision. It is axiomatic that all provisions of an insurance policy must be so construed, if possible, to give effect to each. So. Home Ins. Co. v. Wall, 156 Miss. 865, 127 So. 298 (1930). To construe the policy as urged by appellees, would both be contrary to the ordinary meaning of the words used, and would render part of the definition of “ultimate net loss” meaningless. We decline to do that.

In determining the amount which the insurance company must pay under the policy, both the retained limit and all other recoveries must be subtracted from the total. Since the monies paid by Thedford Aero and Thedford constituted other recoveries within the meaning of the policy, the retained limit was never satisfied.

For the foregoing reasons, the judgment of the circuit court is reversed and judgment is entered here for the appellant.

REVERSED AND JUDGMENT HERE FOR APPELLANT.

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


author: ROBERTSON, Presiding Justice,

text:
    McKinley BELL v. STATE of Mississippi.
    No. 50507.
    Supreme Court of Mississippi.
    July 12, 1978.

      Loyacono & Field, R. Louis Field, Vicksburg, for appellant.
    A. F. Summer, Atty. Gen. by Pete J. Cajoleas, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before ROBERTSON, P. J., and SUGG and BROOM, JJ.
   ROBERTSON, Presiding Justice,

for the Court:

McKinley Bell was indicted, tried and convicted in the Circuit Court of Warren County for armed robbery. He was sentenced to serve a term of thirty-five years in the Mississippi State Penitentiary. On appeal, Bell assigns as error:

I. The court erred in allowing the state to present Prentiss Simmons, Jr., a Co-indictee of the appellant, to various witnesses for purposes of identification.
II.The court erred in allowing the state to question one of its witnesses, Willie Mae Brock, regarding her extrajudicial identification of the appellant.
III. The court erred in refusing to grant to the defendant instruction number 4.
IV. The lower court erred in allowing the state to introduce into evidence the fruits of an unlawful search.

About 1:30 p. m. December 3, 1976, two men, each armed with a pistol, entered Trudy’s Dress Shop on Washington Street, in Vicksburg, Mississippi, and robbed its proprietors, Joe and Gertrude Dahlhauser, of approximately $260 in cash. While one of the robbers, Prentiss Simmons, Jr., robbed Mr. and Mrs. Dahlhauser, Bell emptied the cash register. The money taken consisted of a $100 bill, a $50 bill, and other currency and .change.

Viola Tippet, an employee of the dress shop, identified Bell as being one of the two robbers. She testified that when Bell first entered the shop he did not have a mask on, and that she got a good look at him at this time, a sufficient look for her to positively identify him at the trial.

James McGee, who operated a laundromat separated by a narrow alley from the dress shop, drove up and parked his truck facing this alley just in time to see two men run out of the shop and go into the alley. McGee testified that Bell stopped and pulled off a ski mask that he was wearing and looked directly at him and “I looked him right in the face.” At the trial, McGee, without hesitation, identified defendant Bell as being one of the two men that he saw run out of the dress shop, and the one that removed the ski mask from his face as he entered the alley. He even watched the two men as they entered a yellow house close by. McGee drove his truck to the yellow house and just as he got there he saw Simmons come out, get into a taxicab and drive away. Defendant Bell remained in the house. Later, McGee saw the police return with Simmons, go in the yellow house, and later arrest defendant Bell.

Chief A. J. Holliday of the Vicksburg Police Department testified that he stopped the taxicab, arrested Simmons, found a .22-caliber pistol beneath the rear seat where Simmons was sitting, and after taking some currency off of Prentiss Simmons, Holliday and other policemen returned to the McKinley Bell home.

Hattie Mae Bell, McKinley Bell’s mother, was asked if the police could search her home. She readily gave her consent. The home was a shotgun-type house with each room directly behind another. The middle bedroom was occupied by 19-year-old McKinley Bell and his brother, Larry. Captain Baker of the Vicksburg Police Department found $136.70 in a shoe in the middle bedroom. A $100 bill was rolled around other currency. A Spanish-made .38-caliber revolver was found in the garbage can at the back of the Bell residence.

Within an hour after the robbery, Bell and Simmons, along with one other man, were brought back by the dress shop to see if they could be identified. Viola Tippet and Willie Mae Brock, another employee of the dress shop, identified Bell and Simmons as being the two robbers.

McKinley Bell’s defense was an alibi. He denied having anything to do with the robbery and claimed that he was at home listening to the radio and reading. Although he had been unemployed for some months, he claimed that he was saving the $100 bill from money he had earned at Canal Beverage Company, a job that he left in February, 1976. He admitted that he had been convicted of grand larceny in July, 1976.

Hattie Mae Bell testified that McKinley Bell had been at home all day, except for one time when he went to the store for her.

There is no merit in the first assignment of error. Simmons, a co-indictee, was not asked any questions nor did he make any statements at the trial of Bell. He was merely identified by witnesses as being the other robber.

In Kendall v. State, 249 So.2d 657 (Miss.1971), while the victim of the robbery was testifying, William Arbuckle, who was indicted for the same crime but was not being tried, was brought into the courtroom for the purpose of identification by the witness. He was asked no questions and made no statements. We said in Kendall that the privilege against self-incrimination has no application to matters revealed by an open exhibition of the accused’s body or by ordinary observation of his person, and that if the privilege is not available to the defendant for an exhibition of his person, certainly it is not available to the defendant where a co-indictee is being identified by observation of his person.

Defendant next contends that the court erred when it allowed the state to question Willie Mae Brock about her extrajudicial identification of defendant Bell. Bell, along with his co-indictee Simmons, was brought back by Trudy’s Dress Shop within an hour of the robbery to see if they could be identified as the two men who entered and robbed the dress shop. Mrs. Brock positively identified Bell at that time.

Under cross-examination at the trial, she testified that she believed Bell was one of the robbers, that she had a feeling he was the man. In Fells v. State, 345 So.2d 618 (Miss.1977), this Court said:

“We are of the opinion, and now hold, that the principal witness to a crime may testify concerning an out-of-court identification whether it occurs in a police lineup, a personal confrontation or otherwise because the initial identification being nearest in time to the event has, in our opinion, the greater likelihood of accuracy and truthfulness being undimmed by fading memory and intervening events occasioned by the passage of time. It is not intended that the foregoing be construed to eliminate a corroborating in-court identification.” 345 So.2d at 622.

Defendant’s instruction number 4, the refusal of which appellant contends was error, reads:

“The Court instructs the jury that the indictment is not evidence of guilt and does not create even a suspicion that the Defendant, McKinley Bell, may be guilty, and must play no part in your deliberations.” (Emphasis added).

We agree with the State that the language “must play no part in your deliberations” makes this instruction erroneous, misleading and confusing. Even without this objectionable language, the refusal to grant such an instruction was held by us not to constitute reversible error. Warner v. State, 222 Miss. 322, 75 So.2d 741 (1954); Howze v. State, 43 So.2d 191 (Miss.1941).

Appellant next contends that he did not give his consent to the search.of his bedroom, and that the $136.70 and the .38-caliber pistol introduced into evidence were the fruit of an unlawful search.

Defendant Bell, a minor, lived with four other children in the home of his mother. He admitted that his mother rented this house and allowed her five children to live with her. He admitted that his mother had to pass through the middle bedroom in order to go from her front bedroom to the bathroom or to the kitchen. Mrs. Bell herself consented to the search of her home, over which she had dominion and control.

In United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974), the Supreme Court of the United States held:

“[T]he consent of one who possesses common authority over premises or effects is valid as against the absent, nonconsent-ing person with whom that authority is shared. . . . [W]hen the prosecution seeks to justify a warrantless search by proof of voluntary consent, it is not limited to proof that consent was given by the defendant, but may show that permission to search was obtained from a third party who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected.” 415 U.S. at 170-71, 94 S.Ct. at 993, 39 L.Ed.2d at 249-50.

In Maxwell v. Stephens (8th Cir. 1965) 348 F.2d 335, cert. den. 382 U.S. 944, 86 S.Ct. 387, 15 L.Ed.2d 353 (1965), reh. den. 382 U.S. 1000, 86 S.Ct. 532, 15 L.Ed.2d 490 (1965), Mr. Justice (then Circuit Judge) Blackmun, writing for the court, upheld the right of a mother to consent to the search of a room in the home shared by the defendant with his two younger brothers. See also, United States v. Peterson, 524 F.2d 167 (4th Cir. 1975), cert. den. 423 U.S. 1088, 96 S.Ct. 881, 47 L.Ed.2d 99 (1976).

Finding no merit in the four errors assigned, the conviction and sentence are affirmed.

AFFIRMED.

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


text:
    WARRIOR, INC. v. Clay E. EASTERLY and Mary A. Easterly.
    No. 50304.
    Supreme Court of Mississippi.
    July 12, 1978.

      Martin & Taylor, Ernest G. Martin, Jr., Roberts, Young, Stelly & Rosetti, Herbert J. Stelly, Sr., Gulfport, for appellant.
    Cecil G. Johnson, Biloxi, for appellees.
    Before PATTERSON, WALKER and COFER, JJ.
   PATTERSON, Chief Justice,

for the Court.

This is a water drainage suit appealed from a decree of the Chancery Court of the Second Judicial District of Harrison County which granted a mandatory injunction requiring appellant Warrior, Inc. to restore the property of appellees, Dr. Clay E. Easterly and his wife, Mary A. Easterly, to its original status and to provide adequate drainage of its property.

In 1955, Dr. and Mrs. Easterly purchased approximately fifteen acres in Harrison County on which they resided. On this land lay a pond which was fed primarily by rain and excess water from an artesian well. Any overflow from the pond moved southwesterly off the Easterly property through a culvert beneath Moye Road and into the Back Bay of Biloxi.

In 1973, Warrior, Inc. purchased twenty-three acres lying to the north of and adjacent to the Easterlys’ land and developed upon it a subdivision known as Magnolia Estates. This property contained a definable ridge of elevation such that water drained across Magnolia Estates and onto the Easterly property in a southwesterly direction and eventually into the pond. At the time of purchase there existed a ditch running easterly along the northern boundary of the Warrior property and in the northeast corner of the tract it connected with another ditch which ran southerly into what was termed a branch by Ira 0. Her-rington, Jr., President of Warrior, Inc. Along the southern border of Magnolia Estates he constructed a culvert under a street and cut a ditch which ran in an easterly direction joining this branch or depression. The contour of the subdivision was such that the surface water drained down the streets, into this ditch, and eventually into the depression. The water then flowed southerly into the Easterlys’ pond. Warrior improved this depression by removing tree stumps, limbs, and debris and constructing smooth sides which resulted in an accelerated flow of water.

It was not until construction had begun on Magnolia Estates that Dr. Easterly’s pond began filling with sand and trash. Trash and debris also obstructed the drain beneath Moye Road, and excess water from the pond flooded part of his other property.

Dr. Easterly and Herrington agreed the pond would be cleaned after the subdivision was completed. Although Herrington offered to remove the sand with a tractor and front end loader, Dr. Easterly suggested the use of his son’s dragline which Herrington declined as he thought the son’s offer for the job was excessive. Dr. Easterly then alleviated the situation on his own by having the pond excavated with the dragline.

Warrior filed suit against the Easterlys alleging that the widening and deepening of the pond on their property slowed the water flow causing it to back onto the subdivision. It sought removal of the impediment and damages because of alleged depreciation in property values and the continuous maintenance cost incurred for cleanup of the streets. The Easterlys filed a cross bill praying for damages to their property because of the water from the subdivision. The trial court dismissed the complaint with prejudice and sustained the cross bill, granting an injunction but awarding no damages. From the trial court’s decision, Warrior cites as error that:

1. The decision of the lower court was contrary to the overwhelming weight of the evidence,

2. The lower court erred in dismissing the bill of complaint, and

3. The lower court erred in granting a mandatory injunction.

The Easterlys cross appeal contending the trial court erred in its failure to award monetary relief for damages sustained to their property.

As to whether the decision was contrary to the overwhelming weight of the evidence, we must agree with the trial court’s finding that this case involves surface waters and not natural water courses because there is ample testimony to support this conclusion. The law as regards these types of cases appears to be settled. An upper riparian owner may reasonably drain his surface waters into a water course but cannot collect surface waters and discharge them in a body upon adjoining owners. Board of Drainage Commissioners v. Board of Drainage Commissioners, 130 Miss. 764, 95 So. 75 (1923). Moreover, an upper riparian owner has no right to collect surface water in an artificial channel and discharge it or allow it to be discharged upon the lower land at a greater volume or in a more concentrated flow than would have resulted if the natural condition had remained undisturbed. It follows that when an upper owner alters the natural conditions so as to cast upon the lower owner a greater volume or a more concentrated flow of water, the upper owner must take care of the excess by his own means and on his own land or must do so in cooperation with the lower owner. Newton Coca Cola Bottling Co. v. Murphrey, 212 Miss. 823, 55 So.2d 485 (1951); Steed v. Kimbrough, 197 Miss. 430, 19 So.2d 925 (1944).

We are of the opinion there was insufficient evidence to prove the existence of a natural water course flowing from Magnolia Estates to the Easterlys’ pond. Rather, we are of the opinion, as was the trial court, that the appellant collected its surface water in an artificial channel and discharged it in a concentrated flow onto the Easterly property.

A somewhat similar situation arose in the case of Steed v. Kimbrough, 197 Miss. 430, 19 So.2d 925 (1944), in which appellant cut a ditch or ditches through his upper land which emptied into a ditch previously dug by appellees without enlarging appellees’ ditch. The result was to accelerate the flow from the upper land and to cast the water in a concentrated form onto appel-lees’ land. There this Court termed the problem as one of surface waters and not of a natural water course, and stated:

Most of the adjoining lands of the parties are located in a swale or depression. . The depression does not have a sufficient slope to be termed a hollow, and its fall is not enough to have produced the formation of any natural watercourse with well defined banks, or any banks at all; but the fall is sufficient to cause the rain water to pursue, in a diffused state, a downward course . upon the lower land of appellees . . . In brief, the lay of the land is such that the rainwater falling upon appellant’s slightly higher land on the west would in its diffused state reach appellees’ slightly lower land to the east, and would in its natural state proceed, still in a diffused state, to the eastward over appellees’ lower land. (197 Miss. at 434, 435, 19 So.2d at 925, 926).

We are also not persuaded by Haisch v. Southaven Land Company, Inc., 274 P.Supp. 392 (N.D.Miss.1967), cited by appellant in which a land developer straightened and improved streams increasing the flow of water onto the lower riparian owners’ lands. In that case, there was no apparent question as to the character of the drainage area as there existed three separate streams which converged into a single stream on the Haiseh property.

Appellant’s second contention is that the trial court erred in dismissing its bill of complaint seeking damages. As the record discloses insufficient proof of damages to Warrior, we are of the opinion this assignment of error has no merit.

Lastly, appellant complains that the trial court erred in granting a mandatory injunction. With this we must agree. A mandatory injunction should not issue unless the right thereto is shown beyond reasonable doubt, and irreparable injury would result unless issued. Pattillo v. Bridges, 247 So.2d 811 (Miss.1971); Homes, Inc. v. Anderson, 235 So.2d 680 (Miss.1970); Mississippi State Highway Comm’n v. Spencer, 233 Miss. 155, 101 So.2d 499 (1958); Thomas v. Mississippi Power and Light Co., 170 Miss. 811, 152 So. 269 (1934).

In Spencer, supra, we stated as follows:

A mandatory injunction is an extraordinary remedial process. Courts are more reluctant to grant a mandatory injunction than a prohibitory one. 43 C.J.S., Injunctions, § 5. Although equity has jurisdiction to issue them, they should be confined to cases where it is the only remedy which will be effectual. 43 C.J.S., Injunctions, § 5 states: “Even if the right is clear, it does not follow that a mandatory injunction must be granted, and such injunctions will be issued only in cases of extreme necessity, where the right invaded is material and substantial, and where adequate redress at law is not afforded. Mandatory injunctions will never be granted unless extreme or very serious damage at least will ensue from withholding that relief; nor will they be issued in doubtful cases . . . .” (233
Miss. at 176, 101 So.2d at 506)

In this case, the trial court granted the mandatory injunction apparently under the general prayer for relief as the appellees sought only a monetary award. We are of the opinion that the proof was insufficient to warrant such extraordinary relief as we think it was not the only effective remedy nor was the case one of irreparable injury. Further, we are not persuaded by the argument on cross-appeal that monetary damages should be awarded in addition to in-junctive relief but rather conclude that a monetary award is a sufficient remedy in this cause.

Therefore, we reverse the trial court in its issuance of a mandatory injunction, uphold the liability of appellant, and remand the cause for hearing upon damages to the property of cross appellants.

REVERSED AND REMANDED.

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


text:
    Lewis BROOKS, Jr. v. STATE of Mississippi.
    No. 50542.
    Supreme Court of Mississippi.
    July 12, 1978.
    Sullivan, Smith, Hunt & Vickery, Ralph E. Chapman, Clarksdale, for appellant.
    A. F. Summer, Atty. Gen., by Marvin L. White, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C. J., and LEE and BOWLING, JJ.
   PATTERSON, Chief Justice,

for the Court:

Lewis Brooks, Jr., appeals from a conviction of aggravated assault and a sentence of five years by the Circuit Court of Coaho-ma County.

On the morning of June 15, 1976, Mrs. Sheila Garrard left her place of employment in the McWilliams Building in the City of Clarksdale and walked to her car in the parking lot behind the building. After getting into her automobile, she reached to close the door when a black man approached her stating, “Move over, or I’ll beat you up.” He pushed, shoved and struck her with his hands and arms, as well as a school book and a notebook. Mrs. Garrard fought back, kicking and pushing until they were out of the car. At that time she was struck several times across the face, her back and neck. Suddenly, her assailant turned and ran from the parking lot.

Mrs. Garrard shouted to Floyd Shanker-man, who was standing nearby, that she had been assaulted and pointed to the fleeing assailant. As he pursued, she ran to the front of the McWilliams Building where Officers Jimmy Vanlandingham and Wayne Havens of the Clarksdale Police Department were sitting in a patrol car. She and Officer Vanlandingham proceeded to the parking lot while his partner began pursuit in the car.

In a few minutes a police car drove into the parking lot with a black man in the back seat. Mrs. Garrard was unable to identify him as her assailant, although at trial she described him as being a young black of medium weight with a medium Afro wearing a light colored shirt and darker pants.

Shankerman testified that after parking that morning, he watched a young black running across the lot and heard Mrs. Gar-rard calling him. He described the man as being between five feet eight inches and five feet ten inches, weighing about 160 or 165 pounds, wearing a light blue shirt and darker pants, having a semi-Afro haircut and carrying what appeared to be a book under his arm. Shankerman gave chase in his car, losing sight of the assailant for approximately 20 to 25 seconds but saw him again and resumed the chase, arriving at the scene of apprehension. He identified the appellant, a youth, as the individual who left the parking lot, stating that he had run no more than two blocks from the time he first observed him until he was stopped by the police within a time span of 30 seconds to a minute.

No readable fingerprint was found at the scene. Although the Police Department sent the victim’s and the accused’s clothes to the FBI for analysis, the results were negative as to transfer of textile material and hair samples.

Appellant testified on his own behalf stating that while on his way to school he saw a police car approaching at full speed with the lights on. He began running in the direction it was going to see what it was pursuing. The police photo introduced at trial indicated that Brooks was five feet eleven inches tall, weighed 163 pounds, and was of medium build.

Mrs. Garrard’s injuries consisted of a few bruises and marks on the left side of her neck.

The major issues facing this Court are as follows:

1. Whether the lower court at the hearing for a new trial improperly refused to allow newly-discovered evidence that a member of a juror’s immediate family had been the recent victim of a criminal attack where the juror had answered a question in this regard negatively on voir dire, and

2. Whether the verdict was contrary to the overwhelming weight of the evidence.

While on voir dire, defense counsel asked, “Have any of your family ever been the victim or the subject of an assault and battery, or a criminal attack on their person?” The record reflects no affirmative responses from the jurors. In moving for a new trial, appellant averred in his sworn affidavit that the juror, Mrs. Earnest L. Easley, Jr., failed to disclose that a member of her immediate family was the recent victim of a crime. However, the trial court overruled the motion.

A very similar situation occurred in Dase v. State, 356 So.2d 1179 (Miss.1978), in which a prospective juror failed to respond to the question, “Have any of you or members of your immediate family ever been the victim of a crime or a violent crime?” Subsequent to a guilty verdict, defense counsel learned that this juror’s son had been stabbed to death approximately one month prior to appellant’s trial. We reversed the cause basing our decision upon the test established in Odom v. State, 355 So.2d 1381 (Miss.1978), in which we held the following:

. Therefore, we hold that where, as here, a prospective juror in a criminal case fails to respond to a relevant, direct, and unambiguous question presented by defense counsel on voir dire, although having knowledge of the information sought to be elicited, the trial court should, upon motion for a new trial, determine whether the question propounded to the juror was (1) relevant to the voir dire examination; (2) whether it was unambiguous; and (3) whether the juror had substantial knowledge of the information sought to be elicited. If the trial court’s determination of these inquiries is in the affirmative, the court should then determine if prejudice to the defendant in selecting the jury reasonably could be inferred from the juror’s failure to respond. If prejudice reasonably could be inferred, then a new trial should be ordered. It is, of course, a judicial question as to whether a jury is fair and impartial and the court’s judgment will not be disturbed unless it appears clearly that it is wrong. . . . (355 So.2d at 1383)

In the present case, we think that the answers to the three questions are all affirmative and that prejudice resulted to appellant.

The second issue which we must decide is whether the verdict was contrary to the overwhelming weight of the evidence. The indictment charged as follows:

That Lewis Brooks . . did unlawfully, willfully, feloniously and knowingly attempt to cause serious bodily injury to Sheila Garrard, under circumstances manifesting the extreme indifference to the value of human life, by willfully, unlawfully, feloniously, knowingly and recklessly striking the said Sheila Garrard on her head, chest and back with his hands and fists, and with books, in violation of Section 93-3-7(2)(a) Miss.Code Ann. (1972) as amended. .

Appellant contends from the facts he can be guilty of no greater crime than simple assault. Section 97-3-7 provides for the crimes of simple assault and aggravated assault in pertinent part as follows:

(1) A person is guilty of simple assault if he (a) attempts to cause or purposely, knowingly or recklessly causes bodily injury to another; or (b) negligently causes bodily injury to another with a deadly weapon or other means likely to produce death or serious bodily harm; or (e) attempts by physical menace to put another in fear of imminent serious bodily harm; and, upon conviction, he shall be punished by a fine of not more than five hundred dollars ($500.00) or by imprisonment in the county jail for not more than six (6) months, or both. .
(2) A person is guilty of aggravated assault if he (a) attempts to cause serious bodily injury to another, or causes such injury purposely, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life; or (b) attempts to cause or purposely or knowingly causes bodily injury to another with a deadly weapon or other means likely to produce death or serious bodily harm; and, upon conviction, he shall be punished by imprisonment in the county jail for not more than one (1) year or in the penitentiary for not more than twenty (20) years. .

We think there was insufficient evidence to prove that appellant attempted to cause serious bodily injury to Mrs. Garrard. There can only be conjecture as to what his intent was as her injuries were not serious. Further, we are unable to say in these particular circumstances that the book used in the attack constituted “a deadly weapon or other means likely to produce death or serious bodily harm . . We can only surmise as to what would have resulted had the attack continued and as we have stated before, the mere probability of the guilt of a particular crime cannot support a verdict of guilty. Aikerson v. State, 295 So.2d 778 (Miss.1974); Spurlock v. State, 158 Miss. 280, 130 So. 155 (1930); Green v. State, 67 Miss. 356, 7 So. 326 (1890). Therefore, we are of the opinion the appellant can be guilty of no more than simple assault and that the trial court improperly refused a peremptory instruction for appellant as to the charge of aggravated assault.

After having considered the other assignments of error, we find them to be without merit. Therefore, this cause must be reversed and remanded for a new trial on simple assault.

REVERSED AND REMANDED.

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


author: TORBERT, Chief Justice.

text:
    Charles J. MARTIN v. D. L. TAPLEY, Individually and d/b/a Western Sizzlin Steak House and Gala, Inc., d/b/a Western Sizzlin Steak House.
    77-295.
    Supreme Court of Alabama.
    June 16, 1978.
    Myron K. Allenstein, Gadsden, for appellant.
    P. Michael Haney, of Inzer, Suttle, Swann & Stivender, Gadsden, for appellees.
   TORBERT, Chief Justice.

The plaintiff, Charles J. Martin, filed an action seeking damages for his wrongful dismissal from employment by the defendants. His amended complaint contained claims for wrongful discharge, breach of contract, and malicious procurement of discharge. On January 10,1978 the trial court issued an amended order granting the defendants’ motion for summary judgment because the complaint did not state a claim upon which relief could be granted. The plaintiff has appealed from that order.

The plaintiff bases his claim on the following alleged facts: On or about June 24, 1975, the plaintiff was working for the defendants as an employee at will, and he suffered an injury at that time which was covered by Alabama’s workmen’s compensation law. Title 25, Chapter 5, Code of Alabama 1975. The plaintiff filed a claim for compensation and consulted an attorney. In retaliation for these actions, the plaintiff alleges that he was wrongfully discharged from his employment by the defendants. The defendants (appellees) have stated in their brief that, although the plaintiff did not return to work after his injury, his medical bills were paid and he received workmen’s compensation benefits during the period of his disability.

The trial court, in its amended order granting summary judgment for the defendants, held that the plaintiff failed to state a claim upon which relief could be granted because “[t]he general rule is that an employment contract at will may be terminated by either party with or without cause or justification.” Record at 41. The court cited as authority for its ruling, our recent decision in Hinrichs v. Tranquilaire Hospital, 352 So.2d 1130 (Ala.1977).

In Hinrichs this court upheld the general rule stated above and rejected the circumvention of such rule when the discharge of an employee at will “contravenes a statute or is contrary to ‘public policy.’ ” Id. at 1131 (emphasis added). Since we feel that the Hinrichs case is dispositive of this appeal, we hold that an employee at will is not entitled to damages for wrongful discharge when he is terminated by his employer for having consulted an attorney and applied for workmen’s compensation benefits for an injury allegedly sustained in the course of his employment.

The following language quoted from Hinrichs mandates our holding:

“(1) The general rule is that an employment contract at will may be terminated by either party with or without cause or justification. 56 C.J.S. Master and Servant § 31; and 62 A.L.R.3d 271. This means a good reason, a wrong reason, or no reason.
“(2) Alabama has followed the general rule which is that in a contract of employment ‘at will,’ the contract means what it says, that it is at the will of either party. The employee can quit at will; the employer can terminate at will. Alabama Mills, Inc. v. Smith, 237 Ala. 296, 186 So. 699 (1939). This is true whether the discharge by the employer was malicious or done for other improper reasons. Comerford v. International Harvester Co., 235 Ala. 376, 178 So. 894 (1938). This has been the Alabama law since the early years of this century. See Tennessee Coal, Iron and R. Co. v. Kelly, 163 Ala. 348, 50 So. 1008 (1909), where this Court held:
‘. . .If one does an act which is legal in itself and violates no right of another, the fact that this rightful act is done from bad motives or with bad intent toward the person so injured thereby does not give the latter a right of action against the former.’ ”

Hinrichs v. Tranquilaire Hospital, supra, at 1131.

The plaintiff also contends that his breach of contract claims should not have been rejected on summary judgment. He claims that the workmen’s compensation law is an implied part of a contract of employment at will, and that all such contracts therefore contain an implied right of the employee not to be terminated for asserting his statutory claims to workmen’s compensation benefits.

We find no merit in this contention. Though contracts for employment at will are presumed to be made “with reference to and subject to the provisions of” the workmen’s compensation law, section 25-5-54, Code of Alabama 1975, this does not mean that the employer’s right to terminate employees at will has been restricted. The workmen’s compensation law requires that the plaintiff, an employee at will, be compensated for his injuries sustained during his employment. The defendants claim that the plaintiff was so compensated, and this satisfies whatever implied contractual duty the defendants owed to the plaintiff in regard to the workmen’s compensation law.

We further noté that, although the amended complaint alleged malicious procurement of Martin’s discharge, defendant D. L. Tapley was president of the defendant corporation and therefore acted for and on behalf of that corporation when he advised Martin that his services were no longer needed.

Defendant’s motion for summary judgment was properly granted in this case.

AFFIRMED.

BLOODWORTH, MADDOX, FAULKNER, ALMON and BEATTY, JJ., concur.

JONES, SHORES and EMBRY, JJ., concur in the result.


author: SHORES, Justice. TORBERT, Chief Justice MADDOX, Justice

text:
    Gladys Ann LEONARD, a minor, etc., et al. v. Bernice LEONARD.
    77-102.
    Supreme Court of Alabama.
    June 23, 1978.

      John E. Enslen, Wetumpka, for appellants.
    George P. Howard of Howard & Dunn, Wetumpka, for appellee.
   SHORES, Justice.

Darcus Welcher and Leroy Wilcox were married in the State of Georgia in 1946. Darcus left Leroy in 1947 and returned to Alabama, but they were never divorced insofar as the record shows. Leroy Wilcox died in Georgia in 1975.

While living in Eclectic, Alabama, in 1952, Darcus met Carl Leonard and, according to her testimony, entered into an adulterous relationship with him, which lasted until his death on April 22, 1976. Throughout this time, Leonard was legally married but had no children by his wife. There were, however, four children born to Darcus Welcher Wilcox during this twenty-four-year association with Leonard. In 1972, Leonard signed and recorded a declaration of legitimation in the Probate Court of El-more County for each of these four children pursuant to Title 27, § 11, Code 1940, Recompiled 1958 (now § 26-11-2, Code 1975), which provides:

“The father of a bastard child may legitimate it and render it capable of inheriting his estate by making a declaration in writing, attested by two witnesses, setting forth the name of the child proposed to be legitimated, its sex, supposed age and the name of the mother and that he thereby recognizes it as his child and capable of inheriting his estate, real and personal, as if born in wedlock. The declaration being acknowledged by the maker before the judge of probate of the county of his residence or its execution proved by the attesting witnesses, filed in the office of the judge or probate and recorded on the minutes of his court has the effect to legitimate such child. A certified copy of the minutes of the court shall be sent by the judge of probate to the bureau of vital statistics, state board of health and to the registrar of vital statistics of the county within 30 days after the minutes are recorded.”

Upon Leonard’s death intestate in 1976, the four children born to Darcus claimed an interest in his estate under the laws of descent and distribution and the legitimation statute. They filed a petition for sale for division of thirty-four acres of land owned by Leonard and located in Elmore County.

Leonard’s wife contested this sale and claimed her homestead rights. She maintains that these four children are not Leonard’s offspring but are the legitimate children of Leroy Wilcox. As such, the children may not be legitimated under a statute which speaks only of legitimation by a father of “bastards.” The children amended their complaint to dismiss the original claim without prejudice and substituted for it a petition for declaratory judgment to determine whether they are Leonard’s legal heirs. This issue was tried to the court without a jury. The children attempted to introduce evidence pertaining to Darcus’ relationship with Leonard, Darcus and Leonard’s cohabitation at the time of conception of each of the children, the normal length of her gestation period, physical similarities of appearance between Leonard and the children, the general reputation in the community and among families of Darcus and Leonard that the children were illegitimate, and that Carl Leonard was the father. The trial court refused to admit this testimony into evidence. After the hearing, the court held that the declarations of legitimation filed by Leonard were void and that the children were the legitimate offsprings of Leroy Wilcox. The children appealed from that order.

They argue that the trial court erred in refusing to admit evidence which tended to show.that Leonard was their father; and that the court’s judgment was against the great weight of the evidence.

It is a long-standing rule of the common law, and one frequently recognized in this state, that a child born to a married woman is presumed to be the legitimate offspring of her husband. Carnegie v. Carnegie, 261 Ala. 146, 73 So.2d 556 (1954); Sims v. Birden, 197 Ala. 690, 73 So. 379 (1916). Thus, the children of Darcus Welch-er Wilcox are presumed to be the legitimate children of her husband, Leroy Wilcox, and are not “bastards” within the meaning of the legitimation statute. Balance v. Balance, 261 Ala. 97, 72 So.2d 851 (1954); Jackson v. Jackson, 259 Ala. 267, 66 So.2d 745 (1953). This presumption of legitimation may be rebutted by clear and convincing evidence which tends to show that it is naturally, physically, or scientifically impossible for the husband to be the father. Arthur v. Arthur, 262 Ala. 126, 77 So.2d 477 (1955); Warren v. State, 26 Ala.App. 284, 158 So. 770 (1935).

The legitimation statute refers to “bastards.” This term applies not only to a child born out of wedlock, but also to a child born in wedlock but sired by a man who was not the mother’s husband. 10 C.J.S. Bastards § 1, p. 7. Had the appellants rebutted the presumption that Leroy Wilcox was their natural father, they would be legally recognized as bastards. Since the statute does not require a prior legal determination of illegitimacy, the declarations of legitimation by Leonard would be effective to make them his legitimate children, capable of inheriting his property.

The common law requirement, limiting the evidence to proof that the husband was incapable of procreating or was “absent beyond the realm,” has been relaxed. Bullock v. Knox, 96 Ala. 195, 11 So. 339 (1892). Any evidence which is competent and which tends to show clearly and convincingly that the husband could not be physically or biologically the father is now admissible. Arthur v. Arthur, supra; 10 C.J.S. Bastards § 3, p. 18. The husband and wife, however, are incompetent to testify that their children are illegitimate under the common law rule originally expressed by Lord Mansfield in Goodright v. Moss, 2 Cowp. 591 (1777). This rule prevents testimony by the wife which would establish the illegitimacy of children born in wedlock. It does not, however, prevent the wife from testifying to circumstances from which non-access by her husband and the impossibility of his parenthood may be inferred. Franks v. State, 26 Ala.App. 430, 161 So. 549 (1935).

Under the authority of these cases, the appellants had to prove impossibility of access by the introduction of some evidence tending to show that Leroy Wilcox could not have had sexual relations with Darcus Wilcox at the probable time of conception for each of the four children. They failed to meet this burden. The appellants directed their entire efforts at trial toward proving that Carl Leonard was their father. The only evidence offered which was directed toward proving that Leroy Wilcox could not have been their father was testimony by Darcus that she had not seen Leroy since 1947. This was unsupported by any other evidence, either in the record or in the testimony which the trial court refused to admit. Of this latter testimony, the only fact sought to be introduced which could have had any bearing on the impossibility of Wilcox’ parenthood was Darcus’ testimony concerning the duration of her gestation period. Appellants maintain that this testimony would have set a predicate for evidence showing the impossibility of access. They did not, however, make any offer of proof to that effect at the time her testimony was taken. The trial court cannot be reversed for sustaining the appellee’s objection to this testimony without a showing that such an offer of proof was made. Birmingham Ry. Light & Power Co. v. Selhorst, 165 Ala. 475, 51 So. 568 (1910); C. Gamble, McElroy’s Alabama Evidence, § 425.01(10), at p. 78 (3d ed. 1977). The testimony excluded by the trial court related only to Leonard’s paternity of the appellants and in no way tended to refute the possibility of Wilcox’ paternity testimony. The trial court properly disallowed this testimony.

Appellants finally argue that the judgment of the trial court was against the great weight of the evidence. The trial court heard the evidence ore tenus. Its findings have the force and effect of a jury verdict. We cannot disturb those findings in the absence of a showing that they are plainly and palpably wrong. Goodall v. Ponderosa Estates, Inc., 337 So.2d 726 (Ala.1976); Hackmeyer v. McConnell, 336 So.2d 1107 (Ala.1976).

The presumption of legitimacy in cases of this type is one of the strongest and most persuasive known to the law. Arthur v. Arthur, supra; 10 C.J.S. Bastards § 3, p. 18. As a consequence, the measure of proof required to rebut such a presumption is great. We agree with the trial court that the evidence was insufficient to meet this burden.

AFFIRMED.

BLOODWORTH, FAULKNER and JONES, JJ., concur.

TORBERT, C. J., and BEATTY, J., concur specially.

MADDOX, ALMON and EMBRY, JJ., dissent.

TORBERT, Chief Justice

(concurring specially):

I concur in the result reached by the majority only because a thorough review of the record shows that appellants, in this particular case, failed to offer clear and convincing evidence tending to show that it was naturally, physically or scientifically impossible for Leroy Wilcox to be their natural father. I agree with the majority that the testimony by Darcus Wilcox that she had not seen Leroy Wilcox since 1947 was insufficient to rebut the presumption of legitimacy. Furthermore, the remainder of the evidence proffered by the appellants, including that excluded by the trial court, was not pertinent to the issue here because such evidence related only to the question of Carl Leonard’s paternity of the appellants and did not overcome the presumption of Leroy Wilcox’s paternity of appellants.

BEATTY, J., concurs.

MADDOX, Justice

(dissenting).

In Coke Upon Littleton, Vol. 2, Chap. 6, Sec. 399, Lord Coke had pronounced the following:

“By the common law if the husband be within the foure seas, that is within the jurisdiction of the King of England if the wife hath issue, no proofe is to be admitted to prove the childe a bastard. . (Emphasis added.)

Today, the majority reapplies Lord Coke’s rule, even though this Court, almost one hundred years ago, described the old restrictive rule as “exploded:”

“The ancient common-law authorities declared the issue of every married woman to be legitimate, except in the two special cases of the impotency of the husband and his absence from the realm. . The inference is excluded that the charge of illegitimacy rests either upon the impotency of the husband or upon the impossibility of his access to the wife during the period when she became pregnant. If the rule above stated prevails, the particular case alleged in the bill is not one in which the law permits the presumption of legitimacy to be disputed, and Ben Knox must be treated as the son of his mother’s husband. But that rule has long since been exploded. It operated in many cases to make a man, in law, the father of children who were obviously not his in fact. The rule was first relaxed by permitting the conclusion of illegitimacy to be drawn in certain other special classes of cases in which legitimacy was impossible. It was seen that there were other cases, not included in the common-law classification, in which it was impossible that the husband could be the father of a child born of his wife during their marriage. Finally, the simple rule was recognized that a child is a bastard, though born, or begotten and born, during marriage, when it is impossible that its mother’s husband could have been its father; and that every species of legal evidence tending to this conclusion is admissible on the trial of the issue as to its legitimacy. The question of legitimacy is simply one of fact. The modern authorities sustain the propositions, that the presumption of legitimacy from the birth of a child during marriage may be rebutted by evidence which clearly and conclusively shows that the procreation by the husband was impossible; and that it is competent to show that, according to the course of nature, the husband could not be the father of the child . . . Bullock v. Knox, 96 Ala. 195, 11 So. 339 (1892).

By 1938 this Court could unhesitatingly declare that:

“It has long been established that the presumption of legitimacy from marriage may be rebutted.” (Emphasis Added). McCrary v. Matthews, 234 Ala. 409, 179 So. 367 (1938).

In 1950, this Court held in the case of Butler v. Butler, 254 Ala. 375, 48 So.2d 318 (1950), that the presumption of legitimacy is not conclusive:

“It is without dispute that the children were born during the wedlock of Marie Butler and Sam Butler. This accordingly raises a presumption of legitimacy. This presumption, however, is not conclusive.” (Emphasis added.)

The well established rule now fully evolved was pronounced again in 1953 in the case of Jackson v. Jackson, 259 Ala. 267, 66 So.2d 745 (1953):

“Without dispute, the infant here involved was born during the wedlock of Jessie Lee Jackson and Annie Maude Jackson. This, accordingly, raises a presumption of legitimacy. This presumption, however, is not conclusive.” (Emphasis added.)

The case of Carnegie v. Carnegie, 261 Ala. 146, 73 So.2d 556, 557 (1954), stated the rule as follows:

“When a child is born in wedlock the law raises a rebuttable presumption of its legitimacy.” (Emphasis added.)

In Arthur v. Arthur, 262 Ala. 126, 77 So.2d 477 (1955), this Court quoted with approval the following rule as pronounced in 10 C.J.S. Bastards § 3, p. 18:

“The policy of the law is to confer legitimacy upon children born in wedlock when access of the husband at the time of conception was not impossible, and there is a presumption that a child so born is the child of the husband and is legitimate, even though the wife was guilty of infidelity during the possible period of conception. In general, however, the presumption is not conclusive in the first instance and is rebuttable.
“So firm was this presumption originally that it could not be rebutted unless the husband was incapable of procreation or was absent beyond the four seas, that is, absent from the realm, during the whole period of the wife’s pregnancy. This strict rule was, however, relaxed and eventually repudiated, or at least greatly modified, and gave way to the modern doctrine that the presumption may be rebutted by competent and relevant evidence showing that the husband could not have been the father of the child . . .” (Emphasis added.)

Thus we see there is no legal objection to testimony on the ground that it tends to “bastardize” or make the plaintiff children “illegitimate.” To the contrary, every species of legal evidence tending to the conclusion of legitimacy is admissible on the trial of such issue. The question of legitimacy is one of fact, and the presumption of legitimacy may be rebutted by relevant evidence.

The majority admits that the term “bastard” in Alabama’s Legitimation of Children Statute (Title 27, § 11, Code, 1940, Recomp. 1958, now, § 26-11-2, Code, 1975) applies not only to a child bom out of wedlock but also to a child born in wedlock but sired by a man who was not the mother’s husband. The reputed natural father, Leonard, took every step required by law to “legitimate” these children, and the evidence here, a great deal of which the court would not admit, was overwhelming to rebut any presumption that these children were sired by Leroy Wilcox. A summary of that evidence showed:

1. Carl Leonard complied in every respect and formality with the statutory requirements of Title 27, Section 11, Code of Alabama, 1940, Recomp. 1958, to legitimate the children.
2. Darcus Wilcox testified that she had not seen Leroy Wilcox since 1947.

The trial judge refused to allow evidence on the following factual points:

1. Written and oral statements by Carl Leonard that he is the natural father of the plaintiff children.

2. That Carl Leonard was living in the same household with plaintiff children’s mother, Darcus Wilcox, at the time of the conception of Luther Warren Leonard.

3. That Carl Leonard paid the rent on the house inhabited by plaintiff children and their mother.

4. That it is the general reputation in the community where the plaintiff children and their mother live that Carl Leonard is the natural father of the plaintiff children.

5. That defendant widow, Bernice Leonard, has introduced the plaintiff children to her relatives as belonging to Carl Leonard.

6. That defendant widow testified under oath in a court of law that Darcus Wilcox was having children by her husband, Carl Leonard.

7. That plaintiff children visited with Carl Leonard at his home.

8. That plaintiff children visited with Carl Leonard at the hospital during his last illness.

9. That Carl Leonard gave the plaintiff children money and change from time to time for their own spending.

10. That plaintiff children called Carl Leonard “Daddy.”

11. That defendant widow, Bernice Leonard, has admitted to a third party that Carl Leonard is the natural father of plaintiff children.

12. That Leroy Wilcox, the husband of Darcus Wilcox, who lived in Georgia, never even saw their second son who was born in 1948 and who was burned to death at age five.

13. That Darcus Wilcox, the plaintiff children’s mother, had a normal nine-month gestation period with each of the plaintiff children.

14. That plaintiff children were uniformly received in society and acknowledged by the family of Darcus Wilcox as the children of Carl Leonard.

15. That Carl Leonard was in the presence of Darcus Wilcox when she gave birth to one or more of the plaintiff children.

16. That Carl Leonard went after and brought back the midwife that delivered one of the plaintiff children.

17. That there is a specific point of resemblance physically between the four plaintiff children and Carl Leonard.

18. That Darcus Wilcox, plaintiff children’s mother, had sexual intercourse with Carl Leonard approximately nine months prior to the birth of each of plaintiff children.

19. That Carl Leonard lived with Darcus Wilcox, the mother of the four plaintiff children, in her house at a time preceding the birth of each of the plaintiff children by approximately nine months.

20. That Carl Leonard ate his meals with Darcus Wilcox in her home from 1952 until after the birth of the youngest plaintiff child.

21. That Carl Leonard bought groceries for Darcus Wilcox and the four plaintiff children between the years 1952 and 1969.

22. That Carl Leonard bought clothes and gave them to the four plaintiff children.

23. That Carl Leonard paid the rent on the home in which Darcus Wilcox and the four plaintiff children resided.

24. That it is the general reputation in the family of Carl Leonard that plaintiff children were born illegitimate.

25. That no other male has had access to the body of Darcus Wilcox other than Carl Leonard since January 1, 1952.

26. That Carl Leonard referred to the four plaintiff children in speaking to them as “my children.”

I am quite aware of the presumption of legitimacy conferred on children born to a married woman, but the evidence is simply overwhelming here that Leroy Wilcox was neither the reputed nor natural father of these children. Consequently, I dissent.

ALMON and EMBRY, JJ., concur.