author: SMITH, Judge.

text:
    Mattie Lou GREENE and Wandra S. White, Appellants, v. IVACO INDUSTRIES, LTD. and Niagara Wire Weaving Company, Ltd., Appellees.
    No. AA-109.
    District Court of Appeal of Florida, First District.
    June 9, 1976.
    Rehearing Denied July 21, 1976.

      Douglass & Powell, Tallahassee, for appellants.
    Hollis O. Pemberton, of Keen, O’Kelly & Spitz, Tallahassee, for appellees.
   SMITH, Judge.

The administrators of the estate of Dick Sadberry, deceased, appeal from a summary judgment entered for appellee Niagara Wire Weaving Company, Ltd., on appellants’ claim for Sadberry’s death. Appellants also complained of but now concede the propriety of the summary judgment entered simultaneously for Ivaco Industries, Ltd. Judgment was entered for Niagara Wire Weaving Company on the ground that it is immune from liability pursuant to § 440.11(2), F.S., providing:

“(2) An employer’s workmen’s compensation carrier, service agent, or safety consultant shall not be liable as a third party tort-feasor for assisting the employer in carrying out the employer’s rights and responsibilities under this chapter by furnishing any safety inspection, safety consultive service, or other safety service incidental to the workmen’s compensation or employers’ liability coverage or to the workmen’s compensation or employer’s liability servicing contract. The exclusion from liability under this subsection shall not apply in any case in which injury or death is proximately caused by the willful and unprovoked physical aggression, or by th'e negligent operation of a motor vehicle, by employees, officers, or directors of the employer’s workmen’s compensation carrier, service agent, or safety consultant.”

Sadberry was employed by Niagara Wires, Inc., which manufactures wire mesh used to process wood pulp into paper. Niagara Wires, Inc., is a corporate subsidiary of appellee Niagara Wire Weaving Company. At the direction of his foreman, young Sadberry undertook to clean the rotating drums on which the wire mesh is stretched and losing his balance, he fell onto the moving mesh and was crushed by it against one of the drums. Sadberry’s dependent parents collected workmen’s compensation benefits from his employer, Niagara Wires, Inc., and the appellants sued the parent corporation, appellee Niagara Wire Weaving Company, for negligence in designing the machine, failing to provide adequate warning of its inherent dangers and failing to promulgate reasonably safe procedures for its operation.

Niagara Wire Weaving Company undertook for its subsidiary not only to design the machine in question but also to assemble it, oversee its installation and instruct the employees of Niagara Wires, Inc., in the operation of the machinery. The trial judge concluded from that evidence that Niagara Wire Weaving was in effect the service agent or safety consultant of its subsidiary, Niagara Wires, Inc., that it furnished safety inspection and consultive services to its subsidiary and, therefore, that the subsidiary’s immunity under the workmen’s compensation act was extended to the parent by § 440.11(2), F.S.

We disagree with the trial court’s interpretation of § 440.11(2). That statute does not purport to immunize the negligent manufacturer of a dangerous machine merely because the manufacturer also provided the injured workman’s employer safety inspections or instructions incidental to supplying the machine. The statutory immunity was granted to encourage “employing expert service companies to inspect and advise concerning safety for employees.” Allen v. Employers Serv. Corp., 243 So.2d 454, 456 (Fla.App.2d, 1971), cert. den. 248 So.2d 167 (Fla. 1971); Conklin v. Cohen, 287 So.2d 56 (Fla.1973). The statute rewards efforts of safety consultants whose services are “incidental to the workmen’s compensation or employers’ liability coverage [of the employer] or to the workmen’s compensation or employer’s liability servicing contract.” It does not appear that Niagara Wire Weaving Company was 'employed or engaged by Niagara Wires for such a purpose, nor that any safety services provided by the manufacturer were incidental to workmen’s compensation or employer’s liability coverage or contracts. The law imposes independent duties concerning user safety on the manufacturer or assembler of industrial machinery; and efforts by the manufacturer or assembler to fulfill the law’s expectations do not bring it within the immunity of § 440.11(2).

AFFIRMED as to Ivaco; REVERSED as to Niagara Wire Weaving Company, Ltd.

BOYER, C. J., and HODGES, JOHN G., Associate Judge, concur.


source: Caselaw Access Project

author: McCORD, Acting Chief Judge.

license: Public Domain

text:
    James C. BERRY and James Frost, d/b/a Air Terminal Parking Company of Florida, Appellants, v. OKALOOSA COUNTY, Appellee.
    No. Z-164.
    District Court of Appeal of Florida, First District.
    May 28, 1976.
    Rehearing Denied July 21, 1976.
    Dale E. Rice, Crestview, for appellants.
    John R. Dowd of Wimberly & Dowd, Fort Walton Beach, for appellee.
   McCORD, Acting Chief Judge.

This is an appeal from a final order (judgment) in an action for declaratory judgment and a subsequent order denying petition for rehearing.

Okaloosa County advertised for sealed bids to construct a new airport parking facility. James C. Berry and James Frost, d/b/a Air Terminal Parking Co. of Florida, (hereinafter referred to as Air Terminal) and APCOA Division, ITT Consumer Services Corp., (hereinafter referred to as APCOA) and another concern submitted sealed bids before the deadline of June 13, 1974. APCOA did not file its bid until June 26 because its invitation to bid went astray. After the APCOA bid came in and before the bids were opened and considered, Air Terminal revised its bid in certain particulars. Pursuant to notice given to all of the bidders, the bids were considered at a regular meeting of the Okaloosa County Commission on June 27, 1974. At that time, representatives of all of the bidders were present when the bids came before the commission for action. At the meeting, one of Okaloosa County’s employees who had been assigned the task of evaluating the bids, advised the Commission that it appeared Air Terminal had the most favorable proposal. A motion was then passed “to award the bid” to Air Terminal. Approximately one hour later, the Board passed another motion “to rescind the motion to award the Eglin Parking Facilities Bid to Air Terminal” and passed another motion to readvertise for sealed bids. Air Terminal contended in the court below and contends here that when the motion was passed accepting its bid, a binding contract came into being which could not thereafter be rejected in the absence of a showing that Air Terminal had been guilty of concealment, fraud, collusion or other misconduct. It is not contended that any such showing was made.

The final order of the trial court recited that the action taken by Okaloosa County at its meeting on June 27, 1974, did not give rise to a contract between Okaloosa County and Air Terminal as the last action relative thereto of the governing body while in continuous session was to reject all proposals theretofore made. Subsequently, in its order denying petition for rehearing, the trial court ruled that the rescissionary action which was the last action on the bid of Air Terminal taken by the Commission at its regular meeting on June 27, 1974, was controlling since it was made at the same session without an adjournment; that the earlier motion to award the bid to Air Terminal, which motion unanimously passed on roll call vote, would have given rise to a binding contract but for the fact that at the same continuous session the later motion was made to rescind the action and to readvertise for sealed bids; that since the last action in continuous session was controlling, the earlier motion to award the bid to Air Terminal did not give rise to a contract even in the absence of a showing that Air Terminal had been guilty of concealment, fraud, collusion or any other misconduct.

In Dedmond v. Escambia County, Fla. App. (1st), 244 So.2d 758 (1971), this court considered a similar situation to that in the case sub judice. There, Dedmond, pursuant to advertisements, submitted his bid to Escambia County for a lease to operate concessions at a county beach. The Commission voted to award the lease to Dedmond, and subsequently the Clerk, by letter to Dedmond, advised that the county had accepted his bid. Thereafter, the Commission voted to rescind its action of March 6 and to rebid the contract. The trial court held that there was no binding contract between the parties until a written lease had been executed and that the county was authorized to rescind its earlier award to Dedmond prior to the execution of lease agreement and the furnishing of a performance bond called for in the bid specifications. This court reversed, stating:

“Appellant contends that the lower court’s ruling dismissing the complaint with prejudice is erroneous and we agree. The principle governing the question raised is correctly stated in 26 Fla.Jur., Public Works and Contracts, § 21, as follows:
‘Until that time (acceptance of bid) the bidder is free to withdraw his bid. On the other hand acceptance of a bid results in a contract even though a formal contract has not been executed.’ ”

The distinction between Dedmond and the case sub judice is that there, formal notification of the acceptance of the bid had been given to Dedmond by the Clerk before rescission. We find from an annotation in 3 ALR3d 864-878 reference to several cases of other jurisdictions which hold that, in the absence of authorized notice of acceptance, a board has the right to rescind because no obligation is created by the acceptance of an offer until the acceptance is transmitted to the offerer. We agree with this view. Although a representative of Air Terminal was present at the Okaloosa County Commission meeting and heard the proceedings that transpired, Air Terminal was given no formal notice that its bid had been accepted. Had its representative not been present at the meeting, Air Terminal would have no basis for claiming that acceptance had been communicated to them by an authorized official. The mere fact that its representative was present at the public meeting should not operate to prevent a governmental deliberative body from further considering the matter during the course of their business meeting.

Affirmed.

SMITH, J., and FULLER, RICHARD S., Associate Judge, concur.


author: McCORD, Judge.

text:
    DEPARTMENT OF REVENUE, State of Florida, Appellant, v. The MERRITT SQUARE CORPORATION, a Florida Corporation, Appellee.
    No. Y-411.
    District Court of Appeal of Florida, First District.
    May 24, 1976.
    Rehearing Denied July 21, 1976.

      Robert L. Shevin, Atty. Gen., J. Kendrick Tucker, Asst. Atty. Gen., for appellant.
    Haywood M. Ball, Ulmer, Murchison, Ashby & Ball, Jacksonville, for appellee.
   McCORD, Judge.

This is an appeal from a final declaratory judgment which held that appellee, The Merritt Square Corporation, is a “private utility” within the meaning of an exemption statute, § 212.08(4), Florida Statutes, to the extent of 60% of its operation, and that it is, therefore, exempted from payment of the sales taxes on 60% of its purchases of natural gas. Appellant, the Department of Revenue, contends that Merritt Square is not a private utility and, thus, does not fall within the exemption as to any of its operation. Merritt Square has cross-assigned as error that portion of the judgment which holds that it is liable for sales tax on 40% of its natural gas purchases. It contends that it is a private utility as to its entire “total energy plant” operation.

Section 212.08(4), Florida Statutes, the sales tax exemption here in issue, provides in pertinent part as follows:

“(4) Exemptions, items bearing other excise taxes, etc. — Also exempt are . . all fuels used by a public or private utility, including municipal corporations and rural electric cooperative associations, in the generation of electric power or energy for sale; . . . ”

Appellee owns a shopping center known as Merritt Square located at Merritt Island, Florida, in which it maintains and operates a “total energy plant” by means of which it generates electricity which is separately metered and sold to approximately 70 tenants of the shopping center for use in their respective businesses. The amount of electricity separately metered and sold to the tenants constitutes approximately 60% of the electricity generated by the plant. Forty per cent of the electricity generated is consumed by Merritt Square itself in heating, lighting, and cooling the common areas of the shopping center and its own offices and in lighting the parking areas of the shopping center. Each tenant is charged a maintenance fee on a square foot basis for general maintenance of the common areas of the shopping center as well as for utility services provided to the mall and parking areas of the shopping center.

Merritt Square has paid no sales tax on its purchases of natural gas used to operate the plant and this suit has resulted. The salient question is whether or not Merritt Square is a private utility as to all or a portion of its electrical generating dispensing operation. The trial court stated as follows:

“The department argues that the word ‘utility’, insofar as it describes a type of business, is necessarily limited to those activities which are embraced in the phrase ‘public utility’, as that term is generally used, and that the words ‘public or private utility’, as used in the statute, are intended to refer to ‘public’ utilities as those utilities owned by the public and ‘private’ utilities as those utilities owned by private citizens. This use of words would require that Florida Power and Light Company, Southern Bell Telephone Company, and the Seaboard Coast Line Railroad Company be excused from any statute regulating ‘public utilities’ because the stock of these corporations is privately owned.
******
Use of the phrase ‘public or private utility’ is, quite obviously, intended to embrace something more than those businesses coming within the definition of public utilities or the legislature would not have included the words ‘or private’.
******
The court recognizes the rules that exemptions from taxing statutes are strictly construed and that an administrative construction of a statute is entitled to great weight. Neither of these rules justifies the court in failing to give effect to the judicial determination of the clear meaning of a statute when that statute is considered in the light of the language used, the purpose of the statute and the means employed by the legislature to accomplish that purpose.”

The trial court went on to hold:

“The fact that gas metered to the plaintiff is used in the generation of electricity only 60% of which is sold and it is obviously impossible to separate the purchases of gas used in the generation of electricity and that used in providing other benefits to plaintiff’s tenants which are not paid for as electricity, does not prevent a reasonable application of the taxing statute to the situation presented.
Insofar as the gas purchased by plaintiff is used in the generation of electricity sold to plaintiff’s tenants as electricity, plaintiff is entitled to exemption from this tax. Insofar as gas purchased by the plaintiff and used in the generation of electricity which is expended in the furnishing of incidental services such as air conditioning and lighting malls and parking areas, such gas is not used in ‘generation of electric power or energy for sale’ as that phrase is used in the statute. To this extent, the exemption statute should be strictly construed. While the electricity so consumed is, in the final analysis, paid for by the tenant in the form of rent, it is so co-mingled with other services and benefits rendered to the tenants by the landlord that it is impossible to segregate the portion of any tenant’s rent which can be reasonably allocated to the purchase of electricity for these purposes.

We agree with the ruling of the trial court. The department has administratively defined the term “private utility” to mean a utility which is privately owned. The legislature, however, under Chapter 366, Florida Statutes, has brought utilities which are privately owned into the regulatory ambit of public utilities and has there defined the term “public utility” as follows :

“Public utility defined — The term public utility as used herein means and includes every person, corporation, partnership, association or other legal entity and their lessees, trustees or receivers, now or hereafter either owning, operating, managing or controlling any plant or other facility supplying electricity or gas (natural, manufactured or similar gaseous substance) to or for the public within this state, directly or indirectly for compensation; . . . ” § 366.02, Florida Statutes.

The District Court of Appeal, Third District, in its opinion in Village of Virginia Gardens v. City of Miami Springs, Fla. App. (3rd), 171 So.2d 199 (1965), quoted two generally accepted definitions of the term “public utility.” The first was from Southern Ohio Power Company v. Public Utilities Commission, 1924, 110 Ohio St. 246, 143 N.E. 700, 34 A.L.R. 171, as follows:

“To constitute a ‘public utility,’ the devotion to public use must be of such character that the product and service is available to the public generally and indiscriminately, or there must be the acceptance by the utility of public franchises or calling to its aid the police power of the state.”

The next was from the Supreme Court of Colorado in City of Englewood v. City & County of Denver, 123 Colo. 290, 229 P.2d 667 (1951):

“We find little need to enter into a lengthy discussion of what is or what is not a public utility, because we would ultimately apply the almost universally accepted test, which summarized is, that to fall into the class of a public utility, a business or enterprise must be impressed with a public interest and that those engaged in the conduct thereof must hold themselves out as serving or ready to serve all members of the public, who may require it, to the extent of their capacity. The nature of the service must be such that all members of the public have an enforceable right to demand it.” 229 P.2d at 672.

It is, thus, clear that a privately owned utility is a public utility if it holds itself out to serve the general public. Therefore, the legislature must have meant something other than a privately owned utility when it exempted from the sales tax the gas purchases of public utilities and private utilities. While the legislature did not favor us with a definition of private utility, and we have not otherwise been supplied or found such a definition, it seems apparent that a private utility is one which sells energy to a limited segment or group, such as to its own tenants, and not the public at large. To conclude otherwise would require us to say that the legislature, in exempting private utilities, established a meaningless exemption. It should never be presumed that the legislature intended to enact purposeless and, therefore, useless legislation. Sharer v. Hotel Corporation of America, Fla., 144 So.2d 813 (1962); Dickinson v. Davis, Fla., 224 So.2d 262 (1969).

We agree with the trial court’s ruling that the only part of Merritt Square’s operation which is entitled to the exemption is the direct sale by it of electricity to its tenants.

AFFIRMED.

BOYER, C. J., and LEE, THOMAS E., Associate Judge, concur.


author: BY THE COURT.

text:
    Joel DEARTH, Appellant (Defendant), v. STATE of Florida, Appellee (State). Victor Paul BOCCUMINI, Appellant (Defendant), v. STATE of Florida, Appellee (State). William David CRAIGHEAD, Appellant (Defendant), v. STATE of Florida, Appellee (State).
    Nos. V-459, W-28 and W-216.
    District Court of Appeal of Florida, First District.
    June 7, 1976.
    Rehearing Denied July 21, 1976.

      Mack S. Futch, Public Defender, Alan R. Parlapiano, Asst. Public Defender, Jeffrey H. Barker, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., A. S. Johnston, Asst. Atty. Gen., Donald K. Rudser, Asst. Atty. Gen., for appellee.
   BY THE COURT.

Dearth was convicted of unlawful possession of a central nervous system stimulant. Craighead was convicted of unlawful possession of more than five grams of marijuana. Boccumini was convicted of unlawful delivery of marijuana.

These defendants appeal from the judgments of conviction and sentences, urging that the trial court erred as follows:

1. By denying motions to suppress filed by Dearth and Craighead. We do not agree. Mahoney v. State, 300 So.2d 743 (Fla.App. 1st, 1974).

2. By denying motions to exclude testimony of witness D’Allesandro filed by Dearth and Craighead. We do not agree. Spencer v. State, 133 So.2d 729 (Fla.1961).

3. By excluding the testimony of an expert witness pertaining to the polytypic nature of cannabis. We do not agree. Fotianos v. State, Fla.App. 1st, 329 So.2d 397, opinion filed April 1, 1976.

The judgments of conviction and sentences are affirmed.

MILLS, Acting C. J., SMITH, J., and AGNER, ROYCE, Associate Judge, concur.


author: McCORD, Judge. ENGLAND, Judge,

text:
    The DEPARTMENT OF ADMINISTRATION of the State of Florida, and Robert L. Kennedy, Jr., Executive Director of the Division of Retirement, Department of Administration, Appellants, v. G. L. BROWN et al., Appellees.
    No. 2-27.
    District Court of Appeal of Florida, First District.
    May 24, 1976.
    Rehearing Denied July 21, 1976.

      David V. Kerns and L. Keith Pafford, Tallahassee, for appellants.
    James E. Messer and Cass D. Vickers of Thompson, Wadsworth, Messer, Turner, & Rhodes, Tallahassee, for appellees.
   McCORD, Judge.

This is an appeal from a summary final judgment in favor of appellees (plaintiffs below) in a declaratory judgment action. The suit below involved the question of whether or not appellees, employees of the Division of Corrections of the State of Florida (and others similarly situated as a class) are entitled to be approved by the Executive Director of the Division of Retirement, Department of Administration, for special risk member status within the Florida Retirement System as “correctional agency employees whose duties and responsibilities include contact with inmates, but excluding secretarial and clerical employees.” The trial court ruled that appellees were entitled to such approval and granted summary judgment. Appellants (the Department of Administration of the State of Florida, and Robert L. Kennedy, Jr., Executive Director of Division of Retirement, Department of Administration) contend that the trial court’s interpretation of the statue governing such special risk membership, § 121.021(15), Florida Statutes, was erroneous and that the court erred in entering summary judgment.

The trial court’s ruling was based upon § 121.021(15), Florida Statutes 1973. Subsequently, that statute was amended by Chapter 75-248, Laws of Florida, which now is § 121.021(15), Florida Statutes 1975. In rendering our decision, we will consider the law as it exists at this time rather than at the time the judgment was entered. See Florida East Coast Railway Company v. Rouse, Fla., 194 So.2d 260 (1967); Phillips v. Phillips, Fla.App. (1st), 287 So.2d 149 (1973).

§ 121.021(15), Florida Statutes 1975, provides as follows:

“(15) ‘Special risk member’ means any officer or employee whose application is approved by the administrator and who receives salary payments for work performed as a peace officer; law enforcement officer; policeman; highway patrolman; custodial employee at a correctional or detention facility; correctional agency employee whose duties and responsibilities involve direct contact with inmates, but excluding secretarial and clerical employees; fireman; or an employee in any other job in the field of law enforcement or fire protection if the duties of such person are certified as hazardous by his employer.”

As compared with regular members of the Florida Retirement System, special risk members may retire at a normal age of 55 with a higher retirement credit of 3% per year of service to make the earlier retirement meaningful. Regular members, on the other hand, must wait until age 62 to retire without penalty and receive only 1.6% to 1.68% retirement credit per year of service.

In furtherance of their interpretation of the statute, appellants have adopted Rule 22B-1.0SC governing the Director’s (the Administrator’s) approval of applications for classification of special risk membership. This rule states as follows:

“C. The criteria which shall be used by the employer and the Administrator in determining that a member shall be classified as a special-risk member are:
1. It must first be determined that the member falls into the category of peace officer, law enforcement officer, policeman, highway patrolman, custodial job in a correctional or detention facility, correctional agency employee whose duties and responsibilities involve direct contact with inmates (but excluding secretarial and clerical employees), fireman, or any other job in the field of law enforcement or fire protection.
2. Once it is determined that the member falls into one of the categories enumerated in (1), the member’s duties shall be considered hazardous and the member classified as special risk if in the judgment of the Administrator, continued performance of the primary duties and responsibilities of the member beyond the normal retirement age for a special-risk member will constitute a hazard to the public and the member’s fellow workers or will jeopardize the physical or mental well-being of the member, or at least one of the following statements applies to the member:
a. The duties and responsibilities of the member require that he regularly bear a firearm or other weapon.
b. The member in the performance of his primary duties and responsibilities is required to apprehend and arrest law violators or suspected law violators.
c. The primary duty and responsibility of the member is to maintain physical custody of prisoners within a prison or detention facility or while being transported.
d.The duties and responsibilities of the member require the fighting of fires, other than controlled fires set for instructional purposes.”

The question presented to the trial court and presented here is whether or not the Administrator has authority to restrict special risk membership approval of a correctional agency employee whose duties and responsibilities involve direct contact with inmates (who is not a secretarial or clerical employee) to employees whose duties the Administrator finds to be hazardous. The trial court ruled that he did not. We disagree.

To understand the meaning of the current statute, we must consider the history of the “special risk” member category from the time the Florida Retirement System was first created in 1970. There the statute, § 121.021(15), Florida Statutes, 1971, was in the following form:

“(15) ‘Special risk member’ means any officer or employee receiving salary payments for work performed as a peace officer, law enforcement officer, policeman, highway patrolman, custodial employee at a correctional or detention facility, fireman, or any other job in the field of law enforcement or fire protection if the duties of such person are certified as hazardous by his employer and approved by the administrator.”

It should be noted that the various categories of special risk membership in the above statute are divided by commas and the final phrase requires that the duties of the person be certified as hazardous by his employer and approved by the Administrator. From the foregoing wording and punctuation, it is clear that the duties of each employee must be approved by the Administrator as hazardous. In 1972 the statute was amended to add correctional agency employees to the special risk definition of the Florida Retirement System. The statute was in the same form as the 1970 enactment and carried the additional correctional agency employee category, each category being separated by commas as before. In addition the amendment added the following additional language:

“In the event any member or group of members seeks to be classified as special risk members and their employer fails to certify their duties as hazardous or that their positions fall within the definition of the special risk category established herein or if the administrator fails to concur in the certification of an employer with respect to the member’s eligibility to participate as special risk members, such member or group of members may appeal to the career service commission for a hearing on the merits of their case. The decision of the career service commission shall be final and binding on all parties to the dispute.”

The foregoing amendment was Chapter 72-388, Laws of Florida. In incorporating this amended definition of “special risk member” into the statutory revision (1972 Supplement to the 1971 Statutes), the statutory revision and indexing division of the joint legislative management committee substituted semi-colons for the commas appearing between each of the special risk categories, thus, lending the appearance that the Administrator might only have authority to consider the question of hazardous duties in relation to the last category. The semi-colons also appeared in the 1973 statutory revision. These semicolons, however, could not 'become effective until publication of the 1975 Statutes. (See § 11.2424, Florida Statutes 1973, and the explanation contained in the preface to Florida Statutes 1973, page vii, and Chapter 75-169, Laws of Florida.) Prior to the compilation of the 1975 statutory revision, the statute with which we are now concerned was amended by Chapter 75-248, Laws of Florida, which is included in the 1975 statutory revision as § 121.021(15), Florida Statutes 1975, as heretofore quoted in this opinion. That amendment separated the various categories of special risk members by semi-colons but makes approval by the Administrator an initial requirement for such membership.

Prior to this 1975 amendment, the Circuit Court of the Second Judicial Circuit denied a petition for mandamus which had been brought against appellants in the case sub judice ruling as follows with regard to this same statute as it existed prior to the 1975 amendment:

“It is the Court’s view that said statute requires an exercise of discretion by the Administrator on whether or not the duties of the particular applicant are hazardous. This is a determination he must make based upon the facts of the particular case and his approval or certification is therefore not a mere ministerial act.”

This court affirmed the ruling of the Circuit Court in Bross v. State, Fla.App. (1st), 277 So.2d 36 (1973).

We consider from the wording and history of this special risk category that the legislature intended that the Administrator of the Retirement System exercise reasonable discretion in determining whether or not members falling within the above categories exercise duties which are hazardous and thus entitle them to special risk membership. It is illogical to contend as do appellants that the legislature intended that every member who falls within a special risk category, other than the last one mentioned in the statute, is entitled to special risk membership regardless of whether or not he is performing hazardous duties. We cannot ascribe such an intent to the legislature. We do not believe, for example that the legislature intended that a desk sergeant in a sheriff’s office who performed no other duties would be automatically entitled to special risk membership.

Reversed and remanded for further proceedings not inconsistent herewith.

LEE, THOMAS E., Associate Judge, concurs.

ENGLAND, J., dissents.

ENGLAND, Judge,

dissenting.

I respectfully disagree with the majority’s conclusion that the Department of Administration ("Administration”) has discretion under Section 121.021(15), as originally enacted or as set out in the most recent compilation of Florida Statutes, to impose a requirement of “hazard” on each category of state personnel enumerated in the applicable statutory provision. I readily concede that the original enactment and its subsequent revision can be read to support the majority opinion. It also can be read, perhaps more persuasively, to support a contrary view.

That portion of the act with which we are concerned states with more than adequate specificity the class of employees who are to be eligible for special risk membership. Those covered are non-clerical, non-secretarial employees of correctional agencies who have direct job-related contact with institutional inmates. Surely more precision is not required to classify the persons includable and excludable. Had the Legislature intended to impose a condition of hazard on the class beyond that inherent in those covered in the class, it would have said so.

The foregoing analysis suggests to me that the statute is clear and can be applied as read. Conceding, however, that it may be ambiguous, I still do not find authority for Administration to exercise the classification discretion it sought to impose by rule. I am not persuaded by the majority’s view that the punctuation in the original act, or indeed in any subsequent revision, provides guidance. Nor do I find any clear legislative history to which we can turn. I find relevant, however, policy considerations relative to responsibilities within the executive branch of government.

First, I am persuaded that Administration has not been given classification discretion in light of the intergovernmental relationship between it and the other agencies of government whose employees are enumerated in Section 121.021(15). The statute contemplates a certification of employees by their respective department heads, which suggests a legislative intention to repose classification responsibility within each of the agencies having “special risk” personnel. In this statutory framework, I perceive the need for clear legislative authority before Administration is found to have the right to pre-empt or amplify the primary agency’s responsibility. I do not find and have not been directed to any such authority.

On a more fundamental basis, under the Governmental Reorganization Act of. 1969 (Chapter 20, Florida Statutes), Administration has been assigned governmental management functions in the areas of budgeting, personnel, retirement, and planning. Nothing germane to the formation of a department having administrative responsibilities ostensibly designed for the orderly operation of the executive branch of state government suggests to me that its employees have been given inherent or implicit authority to refine employee classifications in other executive agencies by what Administration conceives is or is not “hazardous”. To assign that responsibility to Administration would seem to require manpower expenditures to obtain and verify information already within the domain of other executive agencies. The justification for that duplication of effort is not apparent.

My analysis of the statute naturally raises the question of why the Legislature would have required any approval by Administration. My answer is found in paragraph 1 of the rule adopted by Administration to govern its internal approval of applications for special risk membership classification. Rule 22B-1.05C(1) requires the agency to determine that any member certified by one of the covered agencies in fact falls within one of the legislative categories. That, I submit, is a reasonable responsibility for that department, as a check on the managerial procedures of the other agencies. While such a limited role is more than ministerial, it does not allow a discretionary erosion of benefits obtained through legislative act by a co-equal agency of the executive branch.

For these reasons I conclude that the Legislature meant what it said when it placed in the special risk member category “any officer or employee who receives salary payments for work performed as a . . . correctional agency employee whose duties and responsibilities involve direct contact with inmates, but excluding secretarial and clerical employees . . . .”1 would, therefore, invalidate Rule 22B-1.05C(2) as being in excess of the department’s jurisdiction, and I would affirm the decision below.

      .Clearly the Legislature would be within its power to create a broad class of special risk employees for whom retirement benefits would be available, presumably as additional compensation or incentive for hazardous daily activities, even if the duties of some within the class were only occasionally or minimally exposed to employment risks. I know of no reason why such a legislative classification, for retirement benefit purposes, would be subject to judicial invalidation if the classification was otherwise reasonable. Essentially that is what Administration has done with its rule.

      . For example, the Department of Offender Rehabilitation has a unique ability to identify those of its employees who have contact with institutional inmates and thereby possess statutory eligibility.

      . See Section 20.31(3), Fla.Stat. (1975).

      . In denying the special risk applications in this case, Administration wrote to appellees on June 21, 1974 and said:
      “Even though you certified that the primary duty and responsibility of the incumbent of the position is to maintain physical custody of prisoners within a prison or detention facility or while being transported, a study of the job description and duties of the various positions does not warrant approval.”

      . Appellant suggests that we must adhere to our prior decision to the effect that state attorneys were subject to the hazardous classifications of Administration. Bross v. State, 277 So.2d 36 (Pla.App. 1st 1973). That case, however, involved state employees in the catch-all clause of the pre-1975 statute, for which hazard was a statutory requisite.


author: BROOM, Justice:

text:
    Grady W. McLAURIN v. OLD SOUTHERN LIFE INSURANCE COMPANY and Kennesaw Insurance Company.
    No. 48695.
    Supreme Court of Mississippi.
    May 25, 1976.
    Rehearing Denied July 13, 1976.
    Warner, Ray & Cobb, Meridian, for appellant.
    Adams & Odom, Dan Coit, Meridian, for appellees.
    Before PATTERSON, ROBERTSON and BROOM, JJ.
   BROOM, Justice:

A hospital-surigcal policy which insured plaintiff (appellant) McLaurin, excepted “any loss resulting from . . . alcoholism.” In the Lauderdale County Circuit Court he sued the insurers, Kennesaw Insurance Company and Old Southern Life Insurance Company (defendants, cross-appellants) for hospital and medical expenses related to his treatment for injuries sustained in an automobile accident. The insurers argue that plaintiff’s injuries resulted from “alcoholism” and that therefore the exception (for alcoholism) shielded them from liability. Dissatisfied with the amount of the $14,438.12 verdict and judgment, plaintiff perfected a direct appeal, and the insurers cross-appealed. We affirm.

On his direct appeal, the plaintiff argues that the lower court erroneously denied him prejudgment interest pursuant to Mississippi Code Annotated § 75-17-1 (Supp.1975). He contends that the statutory interest (from the last date of his four periods of hospitalization) should be applied to the four sums or amounts attributable to each of his four hospital confinements. The record reveals that as to these four differing amounts related to four differing dates, plaintiff did not plead or demand interest on his claim until after the jury verdict and judgment were entered. By his failure to make a timely demand for interest, plaintiff waived whatever rights he may have had (if any) under § 75-17-1 and there is no merit to his argument in that regard. State Farm Mut. Auto. Ins. Co. v. Bishop, 329 So.2d 670 (Miss.1976); Commercial Union Ins. Co. v. Byrne, 248 So.2d 777 (Miss.1971).

On cross-appeal the insurers argue that as a matter of law they are not liable under the policy. The evidence shows that plaintiff was injured in an automobile collision on the wrong side of the highway. His injuries caused him to be confined in the hospital for four different periods of time, totaling 151 days. Upon initial admission to Rush Foundation Hospital, the hospital records indicate he was “on an alcoholic basis at that time.” Dr. Rush testified that he could not say whether plaintiff’s delirium tremors were caused by a head injury or alcoholism. The doctor further stated that he was not treating plaintiff for alcoholism per se and he did not consider him an alcoholic. For his convulsions (delirium tremens) which occurred shortly after his admission, plaintiff was given intravenous alcoholic injections; he was also orally administered alcohol in the form of vodka and orange juice for twenty-five days, after which he made no request for alcohol. Records pertaining to examination of him at the hospital reveal that he received several bone fractures and other serious wounds.

Plaintiff admitted that just before the accident he had consumed one can of beer. The highway patrolman who investigated the accident smelled alcohol on plaintiff just after the accident. Outside the jury’s presence, the patrolman stated that plaintiff’s blood analysis was sufficient to substantiate a charge of driving while under the influence. The plaintiff denied that he was intoxicated when the accident occurred. Without objection when first asked, he denied that he was an alcoholic, but later objection was made and overruled. The insurers placed in evidence Dorland’s Medical Dictionary (23d ed. 1957), which defines alcoholism as:

ACUTE A., drunkenness or the temporary disturbance caused by the excessive use of alcohol.
CHRONIC A., the state induced by repeated and long continued excess in the use of alcohol.

Insurers have cited no case, and this Court has found none, in which the exact language of the exception clause now before us has been judicially construed. Clauses of some similarity which have been construed are collected in 10 G. Couch, Cyclopedia of Insurance Law, § 41:448 at 390 (1963), and in Annotation, 13 A.L.R.2d 987 at 996 (1950). Those clauses invariably refer to the use, consumption or effect of intoxicants and none of them employ the term “alcoholism” or “alcoholic.” The problem here is complicated by the medical and legal controversy surrounding the nature of alcoholism and whether it is a disease. Marshall v. United States, 414 U.S. 417, 94 S.Ct. 700, 38 L.Ed.2d 618 (1974); Powell v. Texas, 392 U.S. 514, 88 S.Ct. 2145, 20 L.Ed.2d 1254 (1968).

As to the particular insurance policy before us (if it were admitted that plaintiff was intoxicated when injured, which here is disputed), this Court declines to accept “alcoholism” as a synonym for “intoxication.” Ample precise language already subjected to judicial construction was available to the insurers in drafting their exception clause. Their decision to use the vague term “alcoholism” without supplying any definition has rendered the clause ambiguous and precipitated them into the midst of a medico-legal controversy. The ambiguity and doubt created thereby is resolved in favor of the insured. Homer Owners Ins. Co. v. Keith’s Breeder Farms, Inc., 227 So.2d 293 (Miss.1969). The insurers’ argument that the evidence conclusively proves, as a matter of law, that plaintiff’s losses resulted from alcoholism is without merit on this record. Therefore, we cannot hold that the clause in the policy excepting losses resulting from undefined “alcoholism” entitled the insurers to a directed verdict.

On cross-appeal, the insurers further contend that the court below committed reversible error by permitting Mc-Laurin to state his opinion that he was not suffering from the disease of alcoholism. As Chief Justice Burger pointed out in Marshall, supra, the current state of medical knowledge concerning alcoholism affords little basis for judicial response in absolute terms. Given the subjective nature of the compulsion (that seems to be the essence of the condition) and the absence of any definitive etiology, upon the peculiar facts of this case it was not error to permit plaintiff to give his own opinion as to whether or not he, personally, was suffering from alcoholism.

Without citing any authority, the cross-appellants state that it was error for the court to elicit from a witness that plaintiff was not an alcoholic. Similarly, the insurers attacked the trial court’s allowing lay testimony that plaintiff was not suffering from alcoholism. They rely upon the general rule that in civil cases one may not bolster his case by the introduction of evidence of his good character except in cases such as slander, false imprisonment and the like. Graves v. Johnson, 179 Miss. 465, 176 So. 256 (1937). Here, the testimony in question did not focus on the good character or good reputation of the plaintiff in a general sense, but on whether or not he was suffering from “alcoholism” and on whether he was a heavy or daily drinker. This testimony may be of limited probative value, but it was not reversible error upon this record for the jury to hear it and give to it such weight and effect as it saw fit.

The insurers also argue that the trial court erred in the granting of jury instructions numbered 10, 15 and 19 for the plaintiff. Instruction No. 10 tells the jury that:

[I]f you believe from a preponderance of the evidence, if any, that the Plaintiff was not admitted to the hospital for treatment because of alcoholism and, further, that he was not treated for alcoholism, then it is your sworn duty to return a verdict in behalf of the Plaintiff.

The instruction is said to place too heavy a burden upon the insurers and gives undue emphasis to the language “that he was not treated for alcoholism.” Further criticism of the instruction is that it could very well have meant to the jury that the plaintiff had a right to recover simply because he was not treated for alcoholism per se. Considered in isolation, the instruction may be considered as not properly keyed to the language of the exception clause in the policy excepting “any loss resulting from alcoholism.” Other plaintiff’s instructions, including those numbered IS and 19, are to a lesser degree subject to similar criticism.

In our jurisprudence all jury instructions are considered in their entirety. Defense Instruction No. 6 told the jury that the plaintiff could not recover if he “at the time of the accident and losses complained of was suffering from alcoholism and that the losses complained of were a direct and proximate result of such condition.” By numerous instructions, twelve for the plaintiff and sixteen for the insurers, the litigants were permitted to fairly present their theories of the case to the jury (eighteen instructions requested by plaintiff were refused, and twenty requested by the insurers were refused). Though certain instructions granted were inartfully drafted, the deficiencies were not so gross as to prejudice the insurers’ case when all instructions are considered together.

All other points raised by the litigants on direct and cross-appeal were carefully considered but do not warrant discussion.

AFFIRMED ON DIRECT AND CROSS-APPEAL.

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

      . The policy was issued by Kennesaw and assigned to Old Southern.


author: PATTERSON, Presiding Justice, for the Court: LEE, Justice

text:
    ILLINOIS CENTRAL GULF RAILROAD COMPANY and Ricky Dowdy v. Mrs. Buford YATES.
    No. 48632.
    Supreme Court of Mississippi.
    May 18, 1976.
    Rehearing Denied July 13, 1976.

      Wells, Wells, Marble & Hurst, John E. Hughes, III, Jackson, for appellants.
    Eugene C. Tullos, Raleigh, William D. Evans, Jackson, for appellee.
    Before PATTERSON, SMITH and BROOM, JJ.
   PATTERSON, Presiding Justice, for the Court:

Mrs. Buford Yates and her children brought suit in the Circuit Court of Smith County seeking damages for the loss of Buford Yates, their husband and father. His death resulted from a collision between the truck he was driving and a railroad locomotive. A verdict of $250,000 was awarded the plaintiffs by the jury from which the railroad company and Ricky Dowdy, the locomotive engineer, appeal.

The first error urged for reversal is that the overwhelming weight of the evidence establishes that the train’s approach to the crossing where the collision occurred was preceded by warning signals in accord with the statute, leaving no factual issue for the jury to decide. To the contrary, the appel-lees urge the failure of the defendants to blow the locomotive’s whistle and ring its bell in approaching the crossing, upon which they base liability, was supported by evidence sufficient to submit to the jury. The issue, therefore, is one of fact.

The defendant’s duty to give warning of a train’s approach to a crossing is set forth in Mississippi Code Annotated section 7777 (1942) [now Section 77-9-225)], which provides in part:

Every railroad company shall cause each locomotive engine run by it to be provided with a bell . . . and with a whistle . . . which can be heard distinctly at a distance of three hundred yards, and shall cause the bell to be rung or the whistle or horn to be blown at the distance of at least three hundred yards from the place where the railroad crosses over any public highway or municipal street. The bell shall be kept ringing continuously or the whistle or horn shall be kept blowing at repeated intervals until said crossing is passed.

A review of the testimony in some detail is necessary to a determination of whether there is any evidence to support the plaintiffs’ theory of liability arising from the appellants’ failure to give the crossing warning signals.

On August 18, 1973, at 6:30 a. m., an Illinois Central Gulf Railroad Company train left Cleveland, Mississippi, destined for Memphis, Tennessee. Prior to departure the air brakes of the train were examined and found to be in good working condition. The train did not stop on its northerly journey until it collided with the truck operated by Buford Yates in Shelby, Mississippi, some fifteen miles north of Cleveland.

U. S. Highway 61 and the tracks of the railroad run north and south at the collision site. The highway is east of the railroad and parallels it without curve for a substantial distance sought of the crossing. The terrain is level, permitting an unob-scured view of the tracks from the highway south of the crossing and at the crossing site. On the day of the accident the plaintiffs’ decedent was driving north along U. S. Highway 61 to a water tower construction site in Shelby where he was to obtain a load of equipment. The site was west of the railroad and the highway paralleled it to the east. It was thus necessary for the truck to turn left from the highway onto the railroad crossing to reach its destination. As the truck and train proceeded on parallel courses in a northerly direction toward Shelby, the truck passed the train and turned westward into the crossing where it was struck by the appellant’s locomotive. Yates was fatally injured and expired shortly after the collision.

Several witnesses testified for the locomotive engineer and the railroad company. Ricky Dowdy, the engineer, testified unequivocally that he blew the whistle and rang the bell beginning at the whistle post 900 feet south of the crossing. He explained that the bell rings continuously when activated and that he did not deactivate it until the locomotive had been brought to a stop subsequent to its impact with the truck. He also testified that he blew two long blasts of the whistle, several short blasts, and another long blast before the train reached the crossing near the water tower construction site. He did not observe the truck operated by Yates until after the accident as his vision to the east was blocked by the engine of the locomotive, his view being to the north along the tracks and to the west thereof.

Billy Barkley, the locomotive fireman, testified that he saw the truck as it moved northward along the highway east of the railroad track and that it passed the train. He estimated the truck’s speed to be about forty or forty-five miles per hour and the speed of the train about thirty miles per hour. He also testified that when the train reached the whistle post, the engineer blew the whistle and rang the bell, giving warning of its approach to the crossing. After the truck passed the train, Barkley saw it turn left into the crossing and immediately notified the engineer who engaged the full braking power of the train, but it was too late to avoid colliding with the truck.

Robert Schnadelbach, a student of Delta State University, was traveling southward enroute to school on the occasion. While stopped at a traffic light in Shelby, he first saw the train and heard its whistle blow when it was about 300 yards south of the crossing. He continued his observance of the truck and train as they approached from the south and saw the truck turn left from the highway into the crossing without stopping where it was struck by the train’s locomotive.

Charles Logan, a carpenter, testified that he was standing in front of Fava’s Grocery Store in Shelby and saw the train and truck approaching from the south. He saw the train and heard the whistle blow when the locomotive was approximately a quarter of a mile south of the crossing. He also observed the truck turn directly into the crossing and into the path of the oncoming train.

Jim Jenkins was in front of his home in Shelby working on a school bus as the train approached. He heard the blasts of the train whistle and the bell clanging south of the crossing. He stated the whistle blew in the vicinity of a white house and pecan orchard south of the crossing. The exhibits depict the white house and orchard to be adjacent to the whistle post south of the crossing. He observed the truck enter the crossing without stopping before it was struck by the locomotive. At the time he was outside of the bus conversing with Reverend Giles who, according to Jenkins, could also have heard the whistle blow.

We note that each of these witnesses gave affirmative testimony that the train’s whistle blew as it approached the crossing and were eye witnesses to the collision.

The evidence most favorable to the ap-pellees by each of their witnesses follows,

Michael Martin was a welder on the water tower being constructed in Shelby. At the time of the collision he was approximately 200 feet from the crossing with his back to it when his attention was attracted by the whistle blowing. He described it as follows:

Well, it was a strange whistle to me. It was almost a steady, you know, it wasn’t no ordinary whistle. It was just a steady whistle like, you know, something to draw your attention, you know. That’s what drew my attention was the —it was a strange whistle blow.

He stated the whistle blast and the collision occurred almost at the same time. He testified the morning was clear and there were no southward obstructions to the vision of a motorist entering the crossing from the highway on the east.

Walter McKay, a foreman of the company erecting the water tower, testified that he was facing the railroad talking to one of his men at the time of the accident. He stated:

I heard the train blow and about that time I heard the truck, I mean, I heard the crash.

Describing the impact, he said:

I just heard the whistle blow and about the same time I heard it hit the truck and looked up and seen the truck in the air.

In response to further questions he answered that he heard the whistle only two or three seconds before the impact.

Three witnesses who were inside the Shelby Dye Casting Plant, also testified for the appellees. None observed the accident, but since the crossing served both the water tower construction site and the dye casting plant, they were within an area where they could hear the warning signals.

Jerry Hobson testified that he did not hear the whistle, horn or bell before the impact, but that “. . . after I heard the impact I heard the whistle blow.”

Wesley Jenkins, also inside the dye casting plant, testified that he heard “. a whistle blowing and the train hitting the truck.”

Robert Coleman, a foreman of the dye casting plant, heard “a whistle blow maybe a few seconds before an impact or simultaneously with an impact.”

The Reverend Willie Giles, a resident of Shelby, was called by the plaintiffs as a rebuttal witness. He testified he was standing with Jim Jenkins near the school bus on the morning of the accident. He heard the train whistle blow one time simultaneously with the collision. He did not observe the train until it struck the truck. When asked, on cross-examination, whether the train whistle could have been blown further down the track, he responded :

I didn’t hear it. So I couldn’t tell what it did do when I didn’t hear.

On redirect examination he explained.

Q. In the event that this train had blown its whistle on further down the track, in all probability you would have heard it, would you not ?
A. I would have heard it, I believe.

We observe there were three witnesses not employees of the railroad company who testified that the train blew its whistle and rang its bell beginning at or near the whistle post 900 feet south of the crossing. This corroborated the equally positive testimony of the engineer and fireman that the warnings were given. Each of the ap-pellees’ witnesses testified the signals were given. The disparity of their testimony and that of the appellants was the time at which the warnings were initiated.

The testimony of the plaintiffs’ witnesses, with the possible exception of Reverend Giles, was that they heard the whistle concurrently, or nearly concurrently, with the collision. They did not testify there were no previous blasts of the whistle or ringing of the bell prior to their hearing it immediately before the collision. Consequently, the record is absent affirmative evidence that the whistle did not blow, or the bell did not ring, at a just previous time while the train was further south of the crossing. Reverend Giles responded to a question concerning this situation by stating that had the whistle been blown further down the track, he believed he would have heard it. The sum of the plaintiffs’ testimony, with the exception noted, is totally negative. The exception, Giles’ rebuttal testimony, at the very most raises a fairly remote inference, possibly a scintilla, that the whistle was not blown nor the bell rung in accord with statute.

We are of the opinion the negative testimony was insufficient to overcome the positive evidence of the defendants that the whistle was blown and the bell was rung. We conclude the verdict of the jury was against the overwhelming weight of the evidence.

In Mobile & O. R. Co. v. Johnson, 157 Miss. 266, 126 So. 827 (1930), we stated the rule appertaining to such evidence as follows:

. . . “The testimony of witnesses that they did not hear the ringing of the bell on a locomotive as it approached a crossing, without proof that the witnesses listened for the bell, or that their attention was in any way directed to it, or that they probably must have heard the bell if it did ring, cannot prevail against the positive testimony of other credible witnesses that the bell did ring at the time in question.” (157 Miss, at 271, 126 So. at 828).

See also Gulf, Mobile & Ohio RR Co. v. Grubbs, 260 So.2d 837 (Miss.1972); New Orleans & Northeastern RR Co. v. Burney, 248 Miss. 290, 159 So.2d 85 (1963); Illinois Central RR Co. v. Smith, 243 Miss. 766, 140 So.2d 856 (1962); and Yazoo & M.V.R. Co. v. Lamensdorf, 180 Miss. 426, 177 So. 50 (1937).

We do not reach the other assignments of error since the above is dispositive of the suit.

REVERSED AND RENDERED.

INZER, P. J., and SMITH, ROBERTSON, WALKER and BROOM, JJ., concur.

LEE and SUGG, JJ., specially concur.

GILLESPIE, C. J., took no part.

LEE, Justice

(specially concurring) :

I concur that the case must be reversed and judgment entered here for appellants, but I think the decision should be based upon appellant’s assigned Error No. II, that the driver of the truck had actual notice of the approach of the train, and that failure to give the statutory warning signals was not a proximate cause of the accident.

The undisputed evidence indicates that the deceased was driving his truck in a northwesterly direction on U. S. Highway No. 61, which caused his view to be directed toward the railroad tracks and the train. At a point approximately sixteen hundred (1,600) feet south of the crossing, near the “Y”, U. S. Highway No. 61 straightened to the north and ran practically parallel with the railroad tracks to the crossing. When the truck arrived at that point, the train was directly in front of it, only one hundred fifty (150) feet away, and was proceeding north at a speed of thirty (30) to thirty-five (35) miles per hour. The deceased drove the truck parallel to the train and to the railroad tracks, with no obstructions between them and the highway, passed the train and turned west upon the crossing and tracks without stopping. From that distance of 1,600 feet to 1,050 feet the distance between the railroad tracks and the highway reduced from 150 feet to 75 feet, and from the distance of 1,050 feet to the crossing, the distance between the railroad tracks and the highway gradually reduced from 75 feet to 57.6 feet. It is inescapable that the deceased was aware of the presence and the approach of the train; otherwise, he would have been both blind and stone deaf. A person is presumed to have seen and heard that which he should have seen and heard.

The purpose of the statutory signals (whistle and bell) is to give notice and warning to the traveling public of the presence and the approach of a train. Undisputed failure to give the signals constitutes negligence per se. However, if an individual is aware of, or knows of, the presence and approach of a train, such negligence would not be a proximate or contributing cause of the accident. New Orleans & N. E.R. Co. v. Burge, 191 Miss. 303, 2 So.2d 825 (1941) ; Thompson v. Mississippi Cent. R. Co., 175 Miss. 547, 166 So. 353 (1936).

Therefore, since the deceased had actual notice of the presence and the approach of the train, failure to give the statutory warning signals was not a proximate cause of the collision, and liability is not imposed against appellants under that submitted issue.

Testimony of a witness as to the blowing of a whistle and the ringing of a bell, when he did not see the train and the collision, should show that the witness was in position to hear the signals, that his hearing was not impaired, and that he could have heard them had they been given. Witnesses for the appellees testified they were in position to hear the signals; and, in fact, they did hear the whistle blow at the time of, or immediately before, the impact. There is no evidence that their respective hearings were impaired or that they could have not heard the signals, if given.

While I concur that the verdict of the jury was against the weight of the evidence on this issue, I would reverse and remand for a new trial had the undisputed evidence not shown that the deceased truck driver was aware of the presence and the approach of the train.

SUGG, J., joins in this opinion.


author: PATTERSON, Presiding Justice, for the Court : WALKER, Justice

text:
    Ex parte Robert Daniel DENNIS.
    No. 49153.
    Supreme Court of Mississippi.
    May 18, 1976.
    Rehearing Denied July 13, 1976.

      David Shoemake, Collins, for appellant.
    A. F. Summer, Atty. Gen. by John C. Ellis, Sp. Asst. Atty. Gen., Jackson, for ap-pellee.
    Before PATTERSON, SMITH and BROOM, JJ.
   PATTERSON, Presiding Justice, for the Court :

Robert Dennis was indicted for armed robbery in Covington County. He was incarcerated and refused bail. Thereafter a petition of habeas corpus was filed before the chancery judge of the district challenging the legality of his confinement and praying reasonable bail pending trial. The habeas corpus petition was dismissed on the basis of Mississippi Code Annotated section 1 — 3—4 (Supp.1975) hereinafter set forth.

Dennis contends that he is entitled to bail since a conviction of armed robbery no longer permits the death penalty and therefore is not a capital case within the ambit of Article 3, Section 29, Mississippi Constitution (1890). He also argues that Mississippi Code Annotated section 1-3-4 (Supp. 1975), upon which the trial judge relied in denying bail, was beyond legislative powers since that body cannot amend the constitution by redefining its express terms.

Article 3, Section 29, Mississippi Constitution (1890) provides:

Excessive bail shall not be required, and all persons shall, before conviction, be bailable by sufficient sureties, except for capital offenses where the proof is evident or presumption great. (Emphasis added.)

Prior to Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), this section enjoyed comparative repose. In 1641 Massachusetts advanced a unique American principle of nondiscre-tionary right to bail before conviction in all offenses except those capital when proof of guilt was evident or the presumption great. This idea was followed and adopted by a great majority of states in their constitutions. 44 Miss.LJ. 565 (1973), and Orfield, Criminal Procedure Under the Federal Rules, section 46:1 (1967). The prohibition against excessive bail came into our present constitution by mesne enactments beginning with that of April 7, 1798, relating to the Mississippi Territory. Since then the constitutional right to bail before conviction, less the exception, has become so fundamental that it is favored by the public policy of this state. Royalty v. State, 235 So.2d 718 (Miss.1970); Resolute Ins. Co. v. State, 233 So.2d 788 (Miss.1970); and Ex Parte Oliver, 127 Miss. 208, 89 So. 915 (1921).

The controversies concerning bail prior to Furman were largely directed to the quantum of evidence required to warrant its denial; that is, whether in fact the proof was evident and the presumption great. The prevailing reason for denying bail in capital cases was that pretrial incarceration was necessary for the accused’s appearance at trial since it was thought that an accused would forfeit his bond by flight rather than risk death by a jury verdict.

Pre-Furman cases of our state, as well as a great majority elsewhere, dealt with bail and bond sufficient to insure the accused’s presence for trial. Indeed, the very purpose of bail is to insure the accused’s appearance. Royalty v. State, supra; Brown v. State, 217 So.2d 521 (Miss.1969); and Ex Parte Goldsby, 121 Miss. 479, 83 So. 673 (1920); of interest, Ex Parte Hamilton and Ex Parte Eubanks, dissent, 65 Miss. 147, 153, 3 So. 241 (1887). The justifiable premise for bail is that its denial punishes prior to a guilty verdict while an accused is clothed with the presumption of innocence. Royalty v. State, supra; and Dean v. State, 173 Miss. 254, 160 So. 584 (1935).

More recently the bail controversies, engendered by Furman, supra, have centered upon whether the abolition of the death penalty under then existing state laws likewise abolished the prohibition against bail in crimes, previously capital, when the proof was evident and the presumption great. We became involved with the issue in Hudson v. McAdory, 268 So.2d 916 (Miss.1972), and more recently in Blackwell v. Sessums, 284 So.2d 38 (Miss.1973). Neither was the legislature spared the problem. It responded by enacting Chapter 576, Laws of 1974, Regular Session. Among its provisions is Section 1-3-4 (Supp.1975).

This case brings into question bail and bond for the appellant’s appearance for trial which, hopefully, will not be confused with pretrial preventive detention of recidivists or with the circumstances existing at the time of Hudson and Blackwell. At that time the death penalty provisions of criminal statutes had been barred by Fur-man and the legislature had not enacted criminal statutes within the leeway of that case for which the death penalty could be inflicted. This case has arisen subsequent to the legislative act reenacting the death penalty for certain crimes and removing it from others.

The first question to be decided is whether the legislature intended by Section 1-3-4 to retain armed robbery within the classification of capital crimes for which bail can be denied. In this determination consideration must be given to the simultaneous withdrawal of the death penalty from the robbery statute, other concurrent enactments, and the rule expressed in Hudson, supra.

The terms within quotation marks of Section 1-34- are used within the following statutes of the Code (perhaps others) pertaining to criminal trials:

13-5-73, Oath of jurors and bailiffs in capital cases;
13-5-77, Special venire facias to issue in \certain criminal cases;
97-1-7, Attempt to commit offenses— punishment;
99-15-17, Compensation of counsel— amount;
99-15-27, Copy of indictment and special venire served to be given in capital cases;
99-15-4-3, Change of venue — capital cases;
99-15-47, Joint indictments — severance in felonies; and
99-17-3, Peremptory challenges — number allowed.

“Capital offenses” also appears in Article 3, Section 29, Mississippi Constitution (1890). Each of the statutes, then of the 1942 Code, received extensive consideration in Hudson, supra, resulting in the following decision:

It therefore becomes apparent that it is necessary to retain the classification “capital offenses,” “capital crimes” and similar references so that utter chaos and confusion in the administration of criminal justice would not be the result of the abolition of the death penalty in certain classes and categories of crimes. (268 So.2d at 921).

The protection of criminal procedures was the foundation reason of the Hudson decision. The procedural status quo was maintained though the death penalty could not be inflicted because of the interposition of federal power through the United States Supreme Court. However, the historic definition of a capital case as one permitting the death penalty was retained. We held that capital offenses when used in the statutes meant a class of cases wherein the legislature had authorized the death penalty, stating:

. . . The Legislature has done this by prescribing the death penalty as punishment for certain crimes. . . .” (268 So.2d at 922)

and

a capital case is any case where the permissible punishment prescribed by the Legislature is death. . . .” (268 So.2d at 923)

At the time of Furman, Hudson and Blackwell, the statute for armed robbery included the death penalty. This was removed in Chapter 576, Laws of 1974, Regular Session, specifically Mississippi Code Annotated section 97-3-79 (Supp. 1975). When the legislature enacted Sections 1-3-4 and 97-3-79 in 1974 the construction we had often given “capital offenses” was within its knowledge. By passing legislation establishing the death penalty in some crimes and removing it from others, the previous definition we had given a “capital offense” or similar terms was implicitly adopted. Crosby v. Ochsner Medical Foundation, 276 So.2d 661 (Miss.1973); and Kittrell v. O’Flynn, 203 Miss. 164, 33 So.2d 628 (1948). Moreover, the concluding sentence in Section 1-3-4 states that “capital murder” shall denote criminal offenses punishable by death, thus tacitly acknowledging the two categories of crime.

We are of the opinion the legislative intent was to draw a clear distinction between the present life imprisonment statute (previously permissive of either life imprisonment or death) and the death penalty statutes permitting only that punishment. We think the legislative purpose of the distinction was to eliminate the confusion that had arisen from “capital offenses” and similar terms existing in the statutes at the time of Furman and presently remaining therein. Its intention was to preserve the criminal procedures formerly associated with the trial of serious criminal offenses where the permitted punishment was either life imprisonment or death, but which presently permit as the maximum only life imprisonment. Armed robbery is in this last category. The seriousness of the crime, though its punishment was mitigated, nevertheless required the special standards to be maintained. We conclude the legislature in its wisdom did not intend by Section 1-3-4 to retain armed robbery within the class of capital offenses for which bail could be denied when it removed the death penalty from it.

We are of the further opinion that the legislature had no authority to amend the constitution by redefining the term “capital offenses” found in Article 3, Section 29, Mississippi Constitution (1890). The term is clear and unambiguous. In Ex Parte Fortenberry, 53 Miss. 428 (1876), the term had been defined as one which permitted the death penalty. The Constitution of 1890 was adopted long prior to any doubt concerning the meaning of the term. Subsequent to the Constitution of 1890 it has been redefined just as before. Shorter v. State, 257 So.2d 236 (Miss.1972). This definition was more recently acknowledged and reaffirmed in Hudson, supra. The construction of a constitutional section is of course ascertained from the plain meaning of the words and terms used within it. State Teachers’ College v. Morris, 165 Miss. 758, 144 So. 374 (1932); Green v. Weller, 32 Miss. 650 (1856). See also In Re Advisory Opinion to the Governor, 223 So.2d 35 (Fla.1969). If there be no ambiguity, there of course exists no reason for legislative or judicial construction. The ambiguity, if there could be such, in Article 3, Section 29, “capital offenses,” resulted from Furman which barred the death penalty, but left the definition unchanged. However, this doubtful ambiguity has been removed by post-Furman criminal statutes which again permit death as a punishment for certain crimes.

We repeat, it is not our opinion that the legislature intended to amend the constitution, since it is aware, as we are, that the constitution can only be modified by constitutional amendment. It is a document of the populace subject only to be amended by the authority which established it. A statute differs in that it expounds the will of the legislature within, but not beyond, constitutional limitations. The constitution does not grant specific legislative powers, but rather limits them. Farrar v. State, 191 Miss. 1, 2 So.2d 146 (1941). We conclude that the legislature did not in any manner, expressly or impliedly, change the meaning of “capital offenses” of the constitution so as to include within it punishment for armed robbery which does not permit death as a penalty.

We are therefore of the opinion the lower court erred in denying the petitioner bail and that the cause should be remanded for that purpose. We do not mean to state that the trial court is without discretion in granting an appropriate bond. In State v. Johnson, 61 N.J. 351, 294 A.2d 245 (1972), there appear items for consideration which express the federal notion that the purpose of bail is to reasonably assure the appearance of the accused for trial. They are :

(1) the seriousness of the crime charged against the defendant, (2) the extent of the punishment prescribed by the legislature, (3) the defendant’s criminal record if any and previous record on bail if any, (4) his reputation and mental condition, (5) the length of his residence in the community, (6) his family ties and relationships, (7) his employment status, record of employment and his financial condition, (8) the identity of responsible members of the community who would vouch for defendant’s reliability and (9) any other factors indicating defendant’s mode of life, or ties to the community bearing on the risk of failure to appear. . . . (268 So.2d at 926).

These criteria are not exact and are not intended to be the only standards that may be used in considering bail, but they are relevant, we think, to indicate that discretion is still left to the judges and that offenders accused of crimes, formerly capital, are not automatically put upon the street to prey upon others.

The cause is reversed and remanded so that reasonable bail for the appellant might be fixed.

The case was considered by a conference of the justices en banc.

REVERSED AND REMANDED.

INZER, P. J., and SUGG, BROOM and LEE, JJ., concur.

WALKER, J., GILLESPIE, C. J., and SMITH and ROBERTSON, JJ., dissent.

WALKER, Justice

(dissenting);

I respectfully disagree with the holding of the majority in this case.

To construe a provision of the Constitution so narrowly and to treat it as being completely unadaptable to circumstances unforeseeable when it was adopted is to do an injustice to its authors.

The time has come when this Court should reconsider the historical definition of the term “capital offenses” as used in the Mississippi Constitution, Article 3, Section 29 (1890) , Similar language to that section is found in (1) The Northwest Ordinance, Article 2 (1787); (2) the Mississippi Constitution, Article 1, Section 17 (1817); (3) the Mississippi Constitution, Article 1, Section 17 (1832) ; (4) the Mississippi Constitution, Article 1, Section 8 (1869) ; and (5) was finally written in the present Mississippi Constitution of 1890.

Prior to 1875, the only punishment imposed for certain high-grade crimes was death. However, in 1875 the Legislature enacted The Act of 1875, Chapter LVIII, Section 2, which fixed the penalty for murder (and some other crimes) at death unless the jury, by their verdict, fixed the sentence at life. After this enactment, it was claimed that an accused was entitled to bail in every case. In Ex Parte Fortenberry, 53 Miss. 428 (1876), the Court observed :

Counsel for the relator insist with great earnestness, that, inasmuch as the giving of bail is a constitutional right by the provisions (§ 8 of art. 1) of the Bill of Rights, ‘except for capital offences, when the proof is evident or presumption great;’ and inasmuch as by the statutes of the State it is left discretionary with the jury, upon conviction of the highest grade of crimes known to our laws, to inflict death or imprisonment for life at their pleasure, — there are no longer any offences necessarily capital in this State, and that consequently there is a constitutional right to bail in all cases. (53 Miss, at 430). (Emphasis added).

The Court held that the offense was nevertheless capital. However, it is significant to note that the Court recognized that capital offenses were . . the highest grade of crimes known to our laws.

The evil which gave birth to Section 29 of the Constitution of 1890 was the fear that a person would be placed in jail for a minor offense and held without bail for a long period without a trial. However, the framers of the Constitution recognized that there were offenses of such magnitude that bail should not be allowed where the proof of guilt was evident or the presumption great and referred to these as “capital offenses.” This terminology was used, in my opinion, since at that time all of the more serious crimes carried the death penalty. The fact that some crimes which have heretofore been punishable by a maximum penalty of death and which now carry a maximum penalty of life does not lessen the severity of the offense and the need to deny bail in those instances. There are valid constitutionally acceptable reasons for denying bail to a person who commits a violent or heinous crime when the proof of his guilt is evident or the presumption great. One, of course, is to assure his presence at trial. Another, is the protection of the general public from persons who have demonstrated their dangerous propensities and lack of care for the well-being of others. In this instance, the right of the general public to be safe from such an individual outweighs the right of that person to be at liberty on bail.

I am of the opinion that the authors of the Constitution of 1890 intended for the term “capital offense” as used in Section 29 thereof to refer as much to the gravity and seriousness of the offense as they did to the then existing penalty of death; and, that the classification of what constitutes a capital offense is a proper legislative function provided that such classification is limited to those cases which are considered to be the highest grade of crimes known to our law and the maximum penalty for which includes either death or imprisonment for life.

This is consistent with Hudson v. McAdory, 268 So.2d 916 (Miss.1972), where it was held that a defendant was not entitled to bail as a matter of right even though the death penalty could not be inflicted due to the United States Supreme Court’s ruling in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). In Hudson, this Court said:

The Constitution of Mississippi neither defines the term ‘capital offenses’ appearing in Section 29 thereof, nor prescribes the punishment for these or any other crimes; therefore, the designation of ‘capital offenses’ was left to the Legislature. The Legislature has done this by prescribing the death penalty as punishment for certain crimes. This designation by the Legislature is as effective today as before Furman. The classification of crimes as capital is a legislative rather than at judicial function. (268 So.2d at 922-923). (Emphasis added).

Hudson, supra, was an open invitation to the Legislature to exercise its legislative function of classifying crimes and this they did by the enactment of Mississippi Code Annotated section 1-3^1 (Supp.1975) which methodically defines the term “capital cases and capital offenses.” That section provides:

The terms ‘capital case’, ‘capital cases’, ‘capital offense’, ‘capital offenses’, ‘capital crime’ when used in any statute shall denote criminal cases, offenses and crimes punishable by death or imprisonment for life in the state penitentiary. The term ‘capital murder’ when used in any statute shall denote criminal cases, offenses and crimes punishable by death.

In my opinion, the lower court properly denied the defendant bail pending his trial on a charge of armed robbery which carries a maximum penalty of life imprisonment and which is without question a crime of the highest grade known to our law.

I strongly feel that the majority has committed error in reversing the judgment of the lower court.

GILLESPIE, C. J., and SMITH and ROBERTSON, JJ., join in this dissent.

      . The terms “capital case”, “capital cases”, “capital offense", “capital offenses", “capital crime” when used in any statute shall denote criminal cases, offenses and crimes punishable by death or imprisonment for life in the state penitentiary. The term “capital murder” when used in any statute shall denote criminal eases, offenses and crimes punishable by death. (Emphasis added.)

      . Special concurring opinion, Hudson, supra.

      . “Excessive bail shall not be required, and all persons shall, before conviction, be bailable by sufficient sureties, except for capital offenses when the proof is evident or presumption great." (Emphasis added).


text:
    Clarence CARTER v. STATE of Mississippi.
    No. 49094.
    Supreme Court of Mississippi.
    May 25, 1976.
    Rehearing Denied July 13, 1976.
    Barry H. Powell, Luke Dove, Jackson, for appellant.
    A. F. Summer, Atty. Gen., by Vera Madel Speakes, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, ROBERTSON and BROOM, JJ.
   BROOM, Justice:

Without youth court certification, a fifteen year old juvenile (appellant Carter), was convicted of armed robbery under Mississippi Code Annotated section 97-3-79 (Supp.1975). Trial was in the Circuit Court of the First Judicial District of Hinds County where appellant pleaded guilty and was sentenced to two years on the county farm. After sentence, appellant moved to vacate the conviction asserting that the circuit court lacked jurisdiction absent a youth court certification order. From the order overruling the motion to vacate the conviction, this appeal is taken. We affirm.

Placed squarely before us for interpretation is Mississippi Code § 43-21-31 (1972), giving circuit courts “exclusive jurisdiction” of juveniles “charged with any crime . . . punishable by life imprisonment or death.” Appellant argues that the circuit court lacked jurisdiction because the crime charged (armed robbery) is not punishable by “both life imprisonment and death,” and also because the crime is alternatively punishable by a period of imprisonment of “less than life.”

We recognize the general rule of construction that statutory exceptions are to be strictly or narrowly construed in favor of the accused. Given a strict construction, the statute which confers exclusive jurisdiction upon circuit courts, § 43-21-31 is of no avail to appellant here because the statute is clearly applicable to offenses punishable by “life imprisonment or death.” The statute does not say and cannot logically be construed to mean that the punishment must be “by both life imprisonment and death” (emphasis added), as argued in appellant’s brief. It is to be noted that language of the statute does not limit its application to a “capital offense” as used in Section Twenty-nine of the Mississippi Constitution of 1890. Indeed the statute now under consideration does not at any place contain any phrase such as “capital case” or “capital offense.” By clear and unambiguous language, § 43-21-31 simply confers upon circuit courts exclusive jurisdiction if the crime charged is “punishable by life imprisonment,” or “death.”

The appellant also states his argument another way elsewhere in his brief, as follows:

Since armed robbery is no longer punishable by life imprisonment or death, but only by life imprisonment, it does not fall within the Youth Court exceptions set forth in section 43-21-31.

He cites several cases as authority for his argument that this Court has heretofore interpreted § 43-21-31 “to except from the general jurisdiction of the Youth Court only capital crimes, crimes punishable by death.” Examination of the cases including Smith v. State, 229 So.2d 551 (Miss.1969), and Ratcliff v. State, 234 Miss. 724, 107 So.2d 728 (1958), does not reveal that we ever held that a crime punishable by a life sentence was not within the purview of the statute. Grant v. State, 305 So.2d 351 (Miss.1974).

Cases from other jurisdictions are cited as authority for the argument that the phrase “punishable by sentence of death or life imprisonment” (language taken from a Missouri case) embraces only those offenses having as “sole alternatives” punishment of life imprisonment or death, and does not embrace offenses carrying possible sentences of less than life imprisonment as a minimum sentence. Such holdings do not reflect sound reasoning when applied to our jurisprudence including our statutes and their history. In construing § 43-21-31, one must keep in mind that when the Youth Court Act, Mississippi Code Annotated sections 43-21-1 through 43-21-55 (1972), including § 43-21-31, was enacted in 1946, the “sole alternatives” of punishment on an indictment charging murder, ■ armed robbery, or forcible rape were not simply life imprisonment or death. At that time Mississippi law permitted an accused person charged with an offense punishable by death to be found guilty of a lesser included offense for which permissible punishment was less than life imprisonment. For example, long before 1946 (and afterward) defendants prosecuted for murder (punishable by life imprisonment or death) were sometimes found guilty of the lesser in-eluded crime of manslaughter, and sentenced to pay a mere cash fine or suffer imprisonment ranging from a jail sentence up to twenty years in the penitentiary, or both. Thus it is illogical to hold that our lawmakers ever intended that § 43-21-31 would apply only when the only alternative penalties which a juvenile such as Carter could possibly receive were both life imprisonment AND death. We find no crime in our present code for which the prescribed penalty is literally, absolutely, and alternatively “life imprisonment or death.” Should we accept appellant’s argument, there would be no crime of which circuit courts could have original exclusive jurisdiction even though several crimes are singularly punishable by life imprisonment, or death.

Carter was charged with the crime of armed robbery under § 97-3-79, which provides the penalty of life imprisonment “if the penalty is so fixed by the jury.” Otherwise the penalty shall be “for any term not less than three (3) years.” Thus when one is tried under § 97-3-79, the applicable penalty is “life imprisonment” (with a possible lesser penalty) even though a penalty of “death” is not alternatively provided. Acceptance of appellant’s argument here would in effect hold that the circuit court lacks exclusive jurisdiction in cases where a juvenile is charged with capital murder for which the sole penalty is “death” (with no alternative or lesser punishment possible) pursuant to Mississippi Code Annotated §§ 97-3-19(2) and 97-3-21 (Supp. 1974). This would be so because those sections on capital murder provide only a “death penalty” and do not provide the alternative punishment of “life imprisonment.” We reject such an illogical interpretation which in capital murder cases would deprive circuit courts of exclusive jurisdiction.

We find no error in the lower court’s construction of § 43-21-31 together with § 97-3-79 vesting in itself jurisdiction of this cause without youth court certification.

AFFIRMED.

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

      . The sentence appears to be less than the statutory three year minimum in the penitentiary.

      . Recently construed by the court on a question concerning bail for a person indicted under Miss.Oode Ann. § 97-3-79 (Supp. 1975) in Ex Parte Dennis, 334 So.2d 369, Rendered May 18, 1976.