author: BOWLING, Justice,

text:
    NATIONAL COLLEGIATE ATHLETIC ASSOCIATION and Walter Byers v. Larry J. GILLARD, by and through Bob Tyler, as next friend, and Mississippi State University.
    No. 49739.
    Supreme Court of Mississippi.
    Dec. 7, 1977.
    Threadgill & Smith, William J. Thread-gill, Taylor B. Smith, Columbus, George H. Gangwere, Kansas City, Mo., for appellants.

      Harry N. Rayburn, Jr., Stennett, Wilkinson & Ward, Erwin C. Ward, Dixon L. Pyles, Jackson, for appellees.
    Before SMITH, LEE and BOWLING, JJ.
   BOWLING, Justice,

for the Court:

This is an appeal from the decrees of the Chancery Court of Oktibbeha County granting appellees, Mississippi State University and Larry J. Gillard, preliminary and permanent injunctions against appellants, National Collegiate Athletic Association (NCAA) and Walter Byers, the Association’s executive director. The preliminary injunction was granted on September 19, 1975, and the permanent injunction was granted at the conclusion of a hearing on April 27, 1976.

We first need to dispose of appellees’ “Motion to Dismiss Appeal for Mootness” filed on November 3, 1977. The allegation of the motion was to the effect that as appellee Larry Gillard was concluding his collegiate football athletic career under the preliminary and permanent injunctions, a review of the lower court’s action is moot. Appellants filed opposition to the motion to dismiss for mootness, alleging that as there is a primary constitutional question involved to which this Court has not addressed itself, the Court should render a decision on this question. We agree and therefore deny appellees’ motion to dismiss.

At the outset, we state in plain and unmistakable language that the issues raised in this cause are solely questions of law. A careful study of the record as applied to positive legal principles leaves this Court with only one choice. We must reverse and dismiss the cause.

Because of the widespread interest in the case and possible misunderstanding of the issues, we shall discuss them fully and plainly as possible.

Appellees filed their sworn bill of complaint requesting that appellants be enjoined from taking action that would prevent appellee, Larry Gillard, from participating in football games the remainder of the 1975 season. It was contended that Gillard was not accorded due process of law when NCAA declared him ineligible for that period of time. The principal allegation for this contention was that he was not a member of the NCAA and was not given sufficient opportunity to be heard through his school, Mississippi State University. It was contended that the actions of NCAA were contrary to the due process requirements of Article 3, section 14, of the Mississippi Constitution, and the Fourteenth Amendment of the United States Constitution.

To get a clear picture of circumstances and events leading to this contention, we relate them from the beginning. First, what is the NCAA? It is a voluntary association composed of approximately 828 colleges and universities. It has a constitution, bylaws, and rules and regulations. These are made, changed and amended at the annual meetings of the association. Representatives of all members are supposed to be at each annual meeting. Between these meetings the activities of the association are in charge of a “council,” composed of eighteen members — the president and secretary-treasurer, both of whom are elected by the convention, and sixteen vice presidents. The membership area is divided into eight districts; each elects a vice president. The convention elects eight vice presidents at large. This council then represents all sections of the country. Various committees are formed as shall be discussed later. A full-time administrative staff is employed, with headquarters in Kansas City, Missouri.

The primary purpose for this voluntary association is set out in its constitution, which reads as follows:

The competitive athletic programs of the colleges are designed to be a vital part of the educational system. A basic purpose of this association is to maintain intercollegiate athletics as an integral part of the educational program and the athlete as an integral part of the student body, and, by doing so, retain a clear line of demarcation between college athletics and professional sports.

On December 17, 1964, the Mississippi Board of Trustees of Institutions of Higher Learning adopted certain policies on athletics, one of which was “standards of the NCAA and appropriate regional conferences shall be the standards of the several athletic departments.”

As stated above, the voluntary members of the association adopt rules and regulations to carry out its purpose. These resulted in the following facts and circumstances as plainly shown by the record in the case.

Mr. Charles N. Shira, Director of Athletics for appellee, Mississippi State University, received a letter dated March 6, 1975, from Warren S. Brown, Assistant Executive Director of NCAA in charge of investigating possible rule or regulation violations. This letter was forwarded as required by these rules and was as follows:

Mr. Charles N. Shira
Director of Athletics
Mississippi State University
Mississippi State, Mississippi
39762
Dear Mr. Shira:
Undoubtedly, you are familiar with the enforcement program of the NCAA and the responsibilities and obligations of the Association’s Committee on Infractions. This letter is to advise you of a preliminary inquiry into the athletic policies and practices of Mississippi State University. Information has been submitted to and developed by the NCAA investigative staff indicating possible violations of NCAA legislation on the part of the University and its representatives. Consequently, the NCAA investigative staff will continue its preliminary inquiry into these allegations in accordance with the provisions of Section 2 of the “Official Procedure Governing the NCAA Enforcement Program,” page 104, 1974-75 NCAA MANUAL. The inquiry will entail the use of a field investigator.
The purpose of a preliminary inquiry is to determine whether there is adequate evidence to warrant an official inquiry. If, following this preliminary checking, the information developed appears substantial, the Committee on Infractions will correspond with you in accordance with the provisions of Section 3 of the “Official Procedure Governing the NCAA Enforcement Program.”
This letter is merely intended to acquaint you with the developments to date and assure you that you and your institution will be fully advised if there is sufficient evidence to warrant an official inquiry.
Sincerely,
/s/ Warren S. Brown
Assistant Executive
Director

After investigations by NCAA representatives as required by the rules, Dr. Giles, President of Mississippi State University, received a confidential letter from Mr. Brown, dated April 30, 1975. Again, this letter was written as required by NCAA rules to permit the University to make a thorough and independent investigation of possible violations found by the association. This letter was as follows:

Dr. William L. Giles
President
Mississippi State University
Mississippi State, Mississippi
39762
Dear President Giles:
This letter (and enclosure) is the result of a preliminary inquiry which has been conducted by the NCAA into the athletic policies and practices of Mississippi State University. This inquiry was initiated in accordance with Section 2 of the “Official Procedure Governing the NCAA Enforcement Program,” page 111, 1975-76 NCAA MANUAL.
The allegations and charges filed have been investigated and appear to be of sufficient substance and reliability to warrant an official inquiry. Accordingly, this letter (and enclosure) constitutes an official inquiry as described in Section 3 of the “Official Procedure Governing the NCAA Enforcement Program.” In order that complete information may be developed, several questions are submitted to obtain the facts of these matters and to determine the practices and policies of Mississippi State University in certain areas of athletic administration.
In the interest of clarity and in accordance with general procedures established by the Committee on Infractions, the University is requested to copy each numbered item and the subparagraphs of each item contained in the official inquiry. The University’s response should immediately follow each numbered item or subparagraph to which the information submitted is directly responsive.
Six copies of your response should be forwarded to the writer at the NCAA executive office and one copy should be forwarded to each member of the Committee on Infractions at the following addresses:
Mr. Harry M. Cross
Professor of Law
University of Washington
Seattle, Washington 98195
Mr. William L. Matthews
Professor of Law
University of Kentucky
Lexington, Kentucky 40506
Mr. Arthur R. Reynolds
Dean, Graduate School
University of Northern Colorado
Greeley, Colorado 80631
Mr. John W. Sawyer
Box 7401
Wake Forest University
Winston-Salem,
North Carolina 27109
Mr. Charles A. Wright
2500 Red River
University of Texas
Austin, Texas 78705
Mr. Warren S. Brown
(6 copies)
P.O. Box 1906
Shawnee Mission,
Kansas 66222
All responses should be on file with these individuals, including the writer, by July 1, 1975. The Committee on Infractions will meet in Kansas City, Missouri, July 11-14, to consider your response and would welcome an appearance by representatives of the University at that time. You will be notified of the actual appearance time and date well in advance of this meeting. In this regard, your attention is directed to Section 4 of the “Official Procedure Governing the NCAA Enforcement Program,” which sets forth the general guidelines to be followed at the time of the University’s appearance before the Committee on Infractions.
It is requested that Mississippi State University be represented at the Committee on Infractions’ hearing by at least the following individuals: head football coach Robert Tyler and assistant football coaches Dennis Aldridge and Thomas Goode. In addition, any University student-athlete identified in an allegation may be present during the discussion of that allegation if such is the desire of the University.
The enforcement program of the NCAA is a cooperative undertaking involving individual member institutions and allied conferences working together through the NCAA — a unified effort designed to improve the administration of intercollegiate athletics.
You will note the statement immediately following each allegation requests that the University indicate whether the allegation is substantially correct and submit information to support its response. In accordance with the cooperative principle of the enforcement program, the University should make every effort to interview the principals identified in the allegations and collect related information, regardless of whether a request to do so is specifically contained in the allegation. The Committee’s interest is for both the NCAA investigative staff and the University to collect, where possible, information for consideration in order to determine the validity of the allegations. If the University does not believe the allegation is substantially correct, it should support its position with any evidence upon which the conclusion is based. Further, if the University concludes the allegation is substantially correct, but not complete or accurate in all respects, it should submit additional information to clarify or adjust the allegation as written. You are called upon as the chief executive officer of Mississippi State University for your cooperation and assistance to the end that complete information related to this matter may be developed.
Sincerely,
/&/ Warren S. Brown
Assistant Executive
Director

(Emphasis supplied)

The record does not contain all possible charges included in the* attachment to the letter. One of the possible violations was directed to a charge that Larry Gillard, during the fall of 1974, obtained articles of clothing from Howard’s Clothing Store in Okolona, Mississippi, at a discount; that the store was owned by one Howard Miskelly, a representative of the University’s athletic interests.

By letter of May 13, 1975, Dr. Giles was notified by the association of possible violations other than those attached to the letter of April 30. After receiving the letter of April 30, Dr. Giles appointed a committee of four staff and faculty members to conduct an investigation and prepare a report on all alleged violations, including that involving Gillard. Legal counsel was employed. A lengthy investigation was conducted. Depositions and statements were taken from many people, including Gillard.

According to testimony, the report prepared by the committee and its attorneys was voluminous, containing hundreds of pages. Unfortunately this Court does not have the benefit of any part of that report. It was not introduced in evidence at the trial of the cause. There was testimony that a detailed statement was secured from Gillard and he was advised of the part of the investigation relating to him. In due course, the entire report was forwarded to the association. The letter of April 30 requested the report by July 1. This date was extended upon request by Mississippi State University until August 1.

In accordance with NCAA rules, Dr. Giles received another confidential letter dated July 24, 1975, regarding the hearing before the Committee on Infractions. It reads as follows:

Dr. William L. Giles
President
Mississippi State University
Mississippi State, Mississippi
39762
Dear President Giles:
The NCAA Committee on Infractions has scheduled an appearance by representatives of Mississippi State University for Monday, August 25, beginning at 9:00 a. m. (CDT) at the Alameda Plaza Hotel, Kansas City, Missouri.
In order to finalize the agenda, it would be appreciated if you would identify at your earliest opportunity all individuals who will represent the University at that time. Please note that only individuals officially representing the University may be present during the hearing and representatives of University representatives shall not be permitted to be present during the hearing. As noted in my April 30 letter, it is again requested that the University be represented by at least head football coach Robert Tyler and assistant football coaches Dennis Aldridge and Thomas Goode. In addition, it is requested that assistant football coach Smylie Gebhart represent the University. Also, student-athletes enrolled in the University may be present as institutional representatives for the discussion of the allegations in which they are identified if such is the desire of the University. Please note that the University’s response is to be on file by August 1.
To assist you in preparing for the appearance, your attention is once again directed to Section 4 of the “Official Procedure Governing the NCAA Enforcement Program,” pages 112 and 113, 1975-76 NCAA MANUAL. Section 4 establishes the general guidelines which will be followed at the hearing. At the outset, a University spokesman will be given the opportunity to make a brief introductory statement concerning the case in general, the contents of which should not relate to the substance of any specific allegation contained in the official inquiry. A representative of the NCAA enforcement staff will also be given the opportunity to make a similar introductory statement. Thereafter, each item of the official inquiry will be discussed for the most part in numerical order with the institutional representatives and enforcement staff presenting relevant information pertaining to the allegations and the Committee taking part in the discussion as it desires. Please note that the Committee encourages both the enforcement staff and institutional representatives to present only that information relevant to the substance of the allegation in order that there will not be unnecessary, extended discussion concerning the allegation.
After each allegation has been discussed, there will then be an opportunity for both the institutional spokesman and enforcement staff to make summary statements concerning the case in general.
Please contact me if you have any questions concerning the hearing procedures.
Sincerely,
/s/ Warren S. Brown
Assistant Executive
Director

(Emphasis supplied)

A hearing was held before the NCAA Committee on Infractions on Monday, August 25, 1975. In attendance were Dr. Giles, Mr. Bob Tyler, head football coach, several assistant coaches, and attorneys Erwin Ward and Harry Rayburn. According to Dr. Giles, Mississippi State University was represented by Attorney Erwin Ward but was not represented by Attorney Harry Rayburn. It should be noted here that in all proceedings subsequent to the meeting before the Committee on Infractions, Mr. Rayburn was the attorney of record for Larry Gillard individually.

By “confidential” letter dated September 10,1976, Dr. Giles was forwarded the report and findings of the Committee on Infractions. Again the Court does not have the benefit, if any, of that official report except as it pertained to Larry Gillard; it might have been material in subsequent events regarding appeals. The evidence does show that the Committee found Mississippi State University to be guilty of twenty violations. The Gillard matter was number eleven.

The letter transmitting the findings of violations was as follows:

Confidential
Dr. William L. Giles
President
Mississippi State University
Mississippi State, Mississippi
39762
Dear President Giles:
The enclosed Confidential Report No. 104(28) [Case No. 520, Mississippi State University] is forwarded to you in accordance with Section 5 of the “Official Procedure Governing the NCAA Enforcement Program,” page 113, 1975-76 NCAA MANUAL, and contains the Committee on Infractions’ findings of violations of NCAA legislation or questionable practices and a statement of the proposed penalty to be imposed upon the University-
Section 5 provides that Mississippi State University has the opportunity to appeal the Committee on Infractions’ findings, penalty, or both, to the NCAA Council. Written notice of appeal must be received by the NCAA executive director not later than 15 calendar days from the date the University receives the enclosed report. Receipt of the appeal notice, if any, prior to the expiration of the 15-day period would be appreciated if convenient to the University. (Emphasis supplied)
Such a notice of appeal shall contain a statement of the date the Committee’s report was received by the University’s chief executive officer, and a statement of each finding and/or penalty being appealed. In the case of appeal, please forward 30 copies of the written appeal notice, which shall not only contain a statement of the specific items being appealed, but also the reasons therefor in each instance. The Council may accept the Committee’s findings and penalty, alter either one or both, or make its own findings and impose a penalty it believes appropriate. If the University desires to appeal, it may do so by appearing before the NCAA Council on October 7, 1975. The Council will meet at the Breckenridge Inn, St. Louis, Missouri. Note that at the time of appearance, the University’s presentation and comments shall relate only to the actual findings of violation^) and/or penalty which the University has identified to the NCAA executive director in its notice of appeal. Upon receipt of the notice of appeal, if any, the executive director will notify you of the actual appearance time.
This letter and enclosed report have been forwarded by certified mail, return receipt requested, in order that the actual date the 15-day period begins will be firmly established. If the University decides not to appeal to the NCAA Council before the 15-day period expires, it should notify the executive director without delay.
After the 15-day period expires or the University indicates earlier that it does not desire to appeal, the Committee on Infractions will make a public announcement of the findings of violations and the NCAA penalty. You will be advised of the time and date in advance of any such public announcement.
You are requested not to make any public announcement concerning the Committee on Infractions’ findings or the proposed penalty until such time as the Committee on Infractions makes a public announcement or the matter has been resolved by the NCAA through its regular enforcement procedures.
The Committee on Infractions extends its appreciation to the executive and athletic administrations of Mississippi State University for their cooperation in this matter.
Sincerely,
/s/ Arthur R. Reynolds
Chairman
Committee on Infractions

The violation findings accompanying the letter found in regard to Gillard that “during the fall of 1974, through the arrangements of Howard Miskelly, a representative of the University’s athletic interests, student athlete Larry Gillard, on at least two occasions, obtained articles of clothing at a Vs discount from Howard’s Clothing Store, Okolona, Mississippi.”

The penalty set out under violation No. 11 (Larry Gillard) ruled Gillard to be ineligible to participate further in football contests involving the University.

For reasons known only to appellees, the University chose not to appeal the findings of the Committee on Infractions to the NCAA Council. It could have appealed from all twenty violation findings or could have appealed only that involving Gillard. It should be noted that Gillard would have been eligible to play pending an appeal.

Another recourse open to appellees under NCAA rules and regulations was to request a hearing before the Committee on Eligibility, which has the authority to change the ineligibility penalty imposed by the Committee on Infractions. Appellees chose this course of action. The request for a hearing was made by Coach Bob Tyler in the form of a letter to the committee. This letter dated September 15, 1975, was as follows:

Chairman of Committee on Eligibility
c/o Warren Brown
P. 0. Box 1906
Shawnee Mission, Kansas 66222
Gentlemen:
This is to request the consideration of the eligibility restoration of Mississippi State University student athlete, Larry Gillard. I refer specifically to the Confidential Report Number 104(28), Case Number 520 Mississippi State University Part I— A-l.
In accordance with NCAA instructions, Larry Gillard has been informed of his ineligibility and that the request for reinstatement has been communicated to your office. Also in accordance with NCAA instructions, a communicate from our President has been mailed to Howard Miskelly, Mississippi State University alumnus, informing him that he must sever all relationships formally and informally with the Athletic Department, its booster and support groups, and other possible associations.

We submit the following:

1. That the penalty of severance placed on Howard Miskelly hit specifically at the guilty party and the source of the violation.
2. That the then prospective athlete, Larry Gillard, was unaware of the possible violation connected with discounted purchases. He has stated that he was aware that he could not accept free merchandise for other benefits, however, it was the young man’s understanding that he could purchase discounted clothing since athletes and general students from other schools were offered similar benefits at the same store. Since the hearing in Kansas City, I have talked with Mr. Miskelly and informed him that some of his supporting affidavits, while accurate, were somewhat lacking in strength, because they involved people close to the family. Mr. Miskelly informs me that this discount procedure has been available to many students at many colleges through the years and he stated also that he would have obtained affidavits from many others, but was simply not aware of what was needed.
With the burden of the total penalty imposed on our football program, i. e. probation, loss of scholarships, admonishment of coaches, severance of alumni, the loss of. this young man from the squad simply adds greater difficulty to restructuring goals and morale in connection with our squad. On behalf of this fine young athlete, I feel that his future as a football player and as a student would be greatly damaged.
Naturally, we will appreciate your consideration of an immediate committee evaluation.
Respectfully,
/s/ Bob Tyler
Head Football Coach
Mississippi State
University

As a result of this letter, the Committee arranged a telephone conference in which all parties, including Gillard, participated.

By letter dated September 18, 1975, to Coach Tyler, he was advised that Gillard’s ineligibility penalty had been reduced from total ineligibility to only the remainder of the 1975 season, which was his sophomore year. He would remain on full scholarship, including all benefits of lodging, food, education, physical equipment, and any other advantage he was enjoying. Everything would remain the same except not playing in the football games the remainder of that season. This letter was as follows:

Mr. Bob Tyler
Football Coach
Mississippi State University
Drawer 5827
Mississippi State, Mississippi
39762
Dear Mr. Tyler:
This is written notification of the action taken by the NCAA Council’s Subcommittee on Eligibility Appeals under date of September 18 on the appeal made by Mississippi State University in behalf of student-athlete Larry Gillard. The following action was taken by the Subcommittee acting under the provisions of NCAA Constitution 4-2-(a)-O.I. 18.
In considering the appeal, it was noted that the University had declared the young man ineligible for intercollegiate football competition under the provisions of NCAA Constitution 3-l-(g)-{6). The Subcommittee declined the University’s appeal for immediate restoration; further, Gillard shall remain ineligible for participation in intercollegiate football until the University has completed its 1975 intercollegiate football schedule. Please note that should the young man withdraw from school during this period or be permitted to otherwise participate during the 1975 intercollegiate football season, the matter of restoration of eligibility will be reconsidered by the Subcommittee. During the period of his ineligibility, he may engage in organized football practice sessions and, of course, continue to receive athletically related financial aid if such is the desire of the University.
In arriving at its decision, the Subcommittee considered the University’s written appeal submitted under date of September 15 as well as the information Messrs. Tyler and Gillard provided during their participation in a telephone conference of the Subcommittee on September 18. As you know, NCAA Constitution 3-l-(g)-{6) provides for permanent ineligibility of the student-athlete involved. However, considering the nature and circumstances of the case, the Subcommittee concluded that some relief should be granted the institution from permanent application of this Constitutional provision to the young man’s eligibility.
The Subcommittee will report its action to the NCAA Council during the Council’s October 6-8 meeting at the Breckenridge Inn, St. Louis, Missouri. If it is the desire of the University to appeal the Subcommittee’s action to the Council, it should do so in writing (approximately SO copies) in advance of the Council meeting. Please be advised that should the University decide to appeal, it may be represented at the Council’s meeting and may include Larry Gillard among its representatives if it so desires. (Emphasis supplied).
The Subcommittee has asked me to extend its appreciation to the University for its cooperation in this matter.
Sincerely,
/s/ Warren S. Brown
Assistant Executive
Director

No appeal was taken from the above committee findings; rather, on September 19, the day after the letter was written, a “bill of complaint for temporary injunction, permanent injunction, and other relief” was filed in the Chancery Court of Oktibbeha County by Larry Gillard and Mississippi State University. The sworn bill of complaint was signed by Dr. Giles for Mississippi State University, and by Bob Tyler as next friend of Gillard, a minor, then twenty years of age. The principal contention in the suit, as hereinbefore stated, was that the actions of the NCAA were in violation of Gillard’s constitutional rights in that he was not granted due process of law. The defendants named in the suit were NCAA and Walter Byers, its executive director.

On September 19, 1975, without notice to the defendants, the chancellor ordered a writ of injunction issued prohibiting NCAA from carrying out its prior findings and from interfering in any way with the participation of Gillard in intercollegiate sports. Summons was then issued to the defendants to respond to the suit and appear to answer the request to make the injunction permanent. As a result of the preliminary injunction, Gillard participated in football games the remainder of the 1975 season.

Appellants appeared and filed their answer. On January 28, 1976, an amended bill of complaint was filed. This was answered on February 16, 1976, and a trial was had on April 6, 1976. We shall discuss the evidence introduced as it relates to the legal questions involved. The chancellor concluded that the complainant Gillard had “a constitutionally protected right” to participate in intercollegiate athletics and that he had been deprived of that right under the facts and circumstances presented. He further found that the internal rules, regulations and operations of the association could be voided by the court because Gil-lard, personally, was not a member of the association. The chancellor then issued a permanent injunction prohibiting NCAA from interfering with the right of Gillard to engage in intercollegiate athletics his junior and senior years. It is noteworthy that this is exactly what the NCAA Committee on Infractions had agreed to on September 18, 1975.

As stated at the outset, the disposition of this case is controlled solely by legal precedents. This was recognized by the chancellor when he said:

Though it may be a bicentennial syndrome and unfounded by legal precedent in this State, it is the opinion of this court and it now so holds that the opportunity for a professional football career is more than just a possibility for this minor complainant and is, therefore, a protected right under section 14 of the Mississippi Constitution of 1890, which provides as follows: “No person shall be deprived of life, liberty or property except by due process of law.”

The lower court’s statement that his decision was “unfounded by legal precedent in this State” is true. The question has not heretofore been presented in this State. He failed to state, however, that the question had been presented to many other courts, both state and federal, and his decree was contrary to all of them. This Court is persuaded by those precedents.

The basic decision of the case then is the simple statement that Gillard’s “right” to engage in intercollegiate football is not a “property” right that falls within the due process clause of either section 14 of the Mississippi Constitution or the Fourteenth Amendment to the United States Constitution, both of which are identical. The reason for this principle is found in the following cases: Howard University, et al. v. NCAA, 166 U.S.App.D.C. 260, 510 F.2d 213 (1975); Parish, et al. v. National Collegiate Athletic Ass’n., 506 F.2d 1028 (5th Cir. 1975); Associated Students, Inc., etc. v. NCAA, 493 F.2d 1251 (9th Cir. 1974); Mitchell v. Louisiana High School Athletic Ass’n., 430 F.2d 1155 (5th Cir. 1970); Oklahoma High School Athletic Ass’n. v. Bray, 321 F.2d 269 (10th Cir. 1963); Scott v. Kil-patrick, 286 Ala. 129, 237 So.2d 652 (1970); Suit v. Gilbert, 3 So.2d 729 (Fla.1941); Sanders v. Louisiana High School Athletic Ass’n., 242 So.2d 19 (La.1970); State, ex rel. Missouri, State High School Activities Ass’n. v. Schoenlaub, 507 S.W.2d 354 (Mo. 1974); Tennessee Secondary School Athletic Ass’n. v. Cox, 221 Tenn. 164, 425 S.W.2d 597 (1968).

We shall not quote from all these cases. All of them, both federal and state, reach the same result. In Howard University v. NCAA, supra, we find the following:

Turning to the due process question, we should first note our substantial doubts whether appellant Howard and especially appellant Diane have recognizable property interests subject to due process protections under the standards of the Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). However, even assuming a recognizable interest, appellants were in no way denied due process. The requirements of due process are flexible and vary as the particular situation demands. ... In the case sub judice, Howard . . . was given notice and full particulars of the charges against it, the right to participate and defend its action before the Committee and Council, and the opportunity to appeal the rules of both bodies to the NCAA Convention. Diane had an opportunity to appeal on his own behalf but failed to do so, presumably because he was satisfied with Howard’s representation of his interests. Moreover, his period of ineligibility was significantly reduced when Howard appealed on his behalf. We think the NCAA has complied adequately with any due process responsibilities it might have had.

In Parish, supra, the Court said:

Appellant’s due process contentions are likewise unavailing. As the district court noted, we have held that “[t]he privilege of participating in interscholastic athletics must be deemed to fall . . . outside the protection of due process.” .

In Scott v. Kilpatrick, supra, the Supreme Court of Alabama said:

Participation in high school athletics is an extra-curricula activity subject to regulations as to eligibility. Engaging in these activities is a privilege which may be claimed only in accordance with the standards set up for participation.
The member schools are in a better position to promulgate rules governing participation in high school athletics than anyone else, and are fully cognizant for the reasons underlying such rules.
If officials of a school desire to associate with other schools and prescribe conditions of eligibility for students who are to become members of the school’s athletic teams, and the member schools vest final enforcement of the association’s rules in boards of control, then a court should not interfere in such internal operations of the affairs of the association. .
We hold that the speculative possibility of the complainant acquiring a football scholarship as shown under the facts presented furnishes no basis for a finding that the complainant was deprived of any property right.

In 68 Am.Jur.2d, Schools, section 244, we find:

Participation in interscholastic athletics is not a property right but a privilege which the school, or a voluntary association whose rules a school agrees to follow, may withdraw if the student fails to qualify for the privilege, subject, of course, to the limitation that schools may not arbitrarily allow the privilege to some and not to others. .

The Supreme Court of Tennessee, in Tennessee Athletic Ass’n. v. Cox, supra, said:

The cases cited below support the rule courts will not interfere in the internal affairs of a voluntary high school athletic association. .
Neither respondent has a legally recognized right to participate in high school athletics. The right to participate is a mere privilege.

As heretofore stated, the lower court found that Gillard’s rights were not protected as Mississippi State University was the member of the NCAA and not Gillard, and that the actions of Mississippi State University were not adequate to protect Gillard’s rights. We have carefully studied all of the above cited cases and others and find that his position was protected and advocated as much as any person involved in those cases. NCAA’s letter of April 30, 1975, stated that “in addition, any University student-athlete identified in an allegation may be present during the discussion of that allegation if such is the desire of the University.” This letter also listed the five members of the NCAA Committee on Infractions. They included professors of law from the University of Kentucky, University of Washington, and University of Texas. It also included faculty members of the University of Northern Colorado and Wake Forest University. This Court may take judicial knowledge that these law professors are noted for advocating the protection of constitutional rights of every person.

Again, the initial letter setting out violations dated July 24,1975, and setting up the first hearing, stated that, “also, student athletes enrolled in the University may be present as institutional representatives for the discussion of allegations for which they are identified if such is the desire of the University.”

Attorney Harry Rayburn, Gillard’s personal attorney, attended and participated in the hearing before the NCAA Committee on Infractions.

The Committee on Eligibility, while giving the complainants substantial relief, on advising of appeal rights even from that decision, stated:

Please be advised that should the University decide to appeal, it may be represented at the council’s meeting and may include Larry Gillard among its representatives if it so desires.”

As seen above, no appeal was taken.

At the hearing on the permanent injunction, Gillard testified that he was perfectly satisfied with the way Coach Tyler handled the matter. Dr. Giles testified that everything had been done that could have been done to protect Gillard’s rights. Regarding this, it is significant that although Coach Tyler signed the sworn bill of complaint as next friend of Gillard, he was not called to testify at the trial.

An exhaustive investigation was made by Mississippi State University on behalf of Gillard and the report was filed with the NCAA prior to the hearing before the Committee on Infractions. As heretofore stated, this was not included in the record before this Court and we do not know its contents. However, Dr. Giles testified that it was a thorough investigation of the Gil-lard allegations.

It is clear that the protection of Gillard’s rights was paramount in the minds of everyone concerned. That protection, however, had to come within the framework of the association.

Due to the disposition of the case on the constitutional ground there is no need to reach the next assignment of error, that is, that Mississippi State University for itself and Gillard did not exhaust the administrative remedies available. Admittedly this was not done. The right to appeal was refused by appellee of every decision made by NCAA committees. The authorities are clear that the administrative remedies should be invoked before resorting to the courts. Everitt v. Lovitt, 192 So.2d 422 (Miss.1966); Davis v. Barr, 250 Miss. 54, 157 So.2d 505 (1963); Scott v. Lowe, 223 Miss. 312, 78 So.2d 452 (1955); Ward, et al. v. David & Johnathan Lodge, 90 Miss. 116, 43 So. 302 (1907).

We therefore conclude that the courts cannot “make rules” to govern amateur athletics. All we can do is to apply legal precedents to the rules promulgated by the associations involved.

This case was considered by a conference of the Judges en banc, and it is the opinion of the Court that the judgment of the court below should be and it is reversed and the cause dismissed.

REVERSED AND DISMISSED.

All Justices concur, except SUGG, J., who took no part.


source: Caselaw Access Project

author: SUGG, Justice,

license: Public Domain

text:
    Georgia Ann WOOD v. Sarah M. WALLEY.
    No. 50071.
    Supreme Court of Mississippi.
    Dec. 14, 1977.

      Cumbest & Cumbest, John L. Hunter, Pascagoula, for appellant.
    Greaves & Terry, Ben E. Sheely, Gulf-port, for appellee.
   SUGG, Justice,

for the Court:

In our original opinion we held that defendant was entitled to a sudden emergency instruction. On petition for rehearing we have concluded that this holding was in error; accordingly, the former opinion is withdrawn and the following substituted therefor.

Plaintiff, Georgia Ann Wood, sued Sarah M. Walley and Esther Clark in the Circuit Court of Jackson County for injuries received in an automobile collision. Before the trial, plaintiff entered a non suit against Esther Clark upon her promise to pay plaintiff $5,000. The case went to trial against the remaining defendant, Sarah M. Walley, and the jury found for the defendant. Plaintiff alleged that Sarah M. Wall-ey, defendant, was negligent because she failed to keep a proper lookout, failed to keep her vehicle under control and failed to exercise ordinary, reasonable care to avoid striking plaintiff when she knew, or should have known, that plaintiff was in a position of peril, and failed to keep her car at a reasonably safe distance behind plaintiff’s automobile.

Plaintiff assigns as error the following:

1. The trial court erred in failing to grant a peremptory instruction and motion for judgment notwithstanding the verdict of the jury.

2. The trial court erred in failing to grant a motion for a new trial because the verdict of the jury was against the overwhelming weight of the evidence.

3. The trial court erred in permitting Dr. Robert Donald to testify to hearsay evidence.

4. The trial court erred in granting defendant a sudden emergency instruction.

Plaintiff was injured October 28, 1975 as a result of a collision when the ear she was driving was struck by a car driven by the defendant. The collision occurred at the intersection of Old Mobile Highway and Eden Street in Pascagoula. Plaintiff and defendant were driving north on Eden Street and both drivers stopped at the intersection. At the time traffic was being directed by a policewoman who signaled for traffic on the Old Mobile Highway to stop. The policewoman then directed plaintiff and the cars behind her to proceed north across the intersection. In response to the signal by the policewoman plaintiff, defendant, and a third car immediately behind them proceeded north into the intersection. After plaintiff traveled about twelve feet into the intersection, she stopped her car suddenly to avoid a collision with a vehicle traveling west on the Old Mobile Highway which sped through the intersection against the signal of the police officer. When plaintiff stopped her car it was struck in the rear by the car operated by the defendant. Plaintiff testified that, when she saw the oncoming vehicle on Old Mobile Highway, she braked gently and came to a complete stop and was traveling not over five to ten miles per hour before stopping. Defendant testified that she was never any farther than six feet behind plaintiff’s car after stopping at the intersection, and that she was approximately three feet behind •plaintiff’s car when she saw plaintiff apply her brakes. Defendant first saw plaintiff’s brake lights and then noticed the speeding vehicle passing through the intersection. Defendant’s car did not skid when she applied her brakes and in explanation of the accident stated that she was not able to stop before colliding with plaintiff’s car and “supposed she did not have her car under constant control” before striking plaintiff’s ear. Defendant further testified that the brakes on her car were in good working order.

On these facts plaintiff contends that she was entitled to a peremptory instruction and, at the very least, the jury verdict was against the overwhelming weight of the evidence. Defendant admits that plaintiff received injuries but contends it is questionable whether her injuries are as serious as contended by the plaintiff. Defendant further argues that the testimony created an issue for the jury to determine whether plaintiff had been adequately compensated for the injuries by the $5,000 which she was to receive from Esther Clark; therefore, the peremptory instruction was properly denied.

The principle that one joint tort-fea-sor is entitled to credit when another tort-feasor has settled or paid the injured party is well established in our jurisprudence. In Bogdahn v. Pascagoula Street Railway & Power Company, 118 Miss. 668, 79 So. 844 (1918); 50 A.L.R. 1082n, Bogdahn was electrocuted by an electric wire belonging to the power company while performing his work for the Cumberland Telephone Company. The telephone company settled the case against it by payment of $7,500 and the jury returned a verdict for the power company. Bogdahn urged on appeal that the verdict of the jury was contrary to the law and evidence. In this case the court stated, conceding that the power company was negligent and there was no question of negligence to submit to the jury, that:

[W]e are unable to say the verdict of the jury was contrary to the law and the evidence, because the jury were properly instructed that, if they believed from the evidence the appellee Pascagoula Street Railway & Power Company was guilty of negligence in causing the death of Herman Bogdahn, they should, in assessing the damages, allow a credit of the seven thousand five hundred dollars to the ap-pellee in the amount assessed against ap-pellee as damages in the ease. In other words, if the jury believed that the seven thousand five hundred dollars paid to appellants by the telephone company was sufficient to compensate appellants in full for all damages for the death of the deceased, then the verdict of the jury should have been for the defendant, even though they believed that appellee was liable as a joint tort-feasor; thereby finding that the amount due appellants as damages for the death was no more than seven thousand five hundred dollars, the amount already paid appellants by the joint tort-feasor, Cumberland Telephone & Telegraph Company. The jury had a right to find that appellants had been fully compensated for the one injury by the payment of the seven thousand five hundred dollars by the joint tort-feasor, telephone company, for the joint negligence of appellee and the telephone company. For all we know, this was the conclusion reached by the jury in this case. At all events, we cannot say from the record that the jury did not base their finding upon the conclusion that the seven thousand five hundred dollars already paid by the telephone company was sufficient and full compensation to the appellants as damages for the one cause or injury. The jury certainly had a right to reach this conclusion under the law and the facts, and probably did so; and we cannot disturb the verdict on the ground that it was contrary to the law and the evidence. (118 Miss, at 675, 79 So. at 845, 846).

A jury has the right to find for the defendant if they believe that plaintiff has been fully compensated for the injuries by a joint tort-feasor even though defendant is guilty of negligence contributing to the injury. We therefore hold the court properly denied the requested peremptory instruction and the motion for judgment notwithstanding the verdict.

With reference to the second assignment of error that the verdict of the jury was against the overwhelming weight of the evidence, we cannot say from the record that the jury did not base its finding upon the conclusion that the $5,000 to be paid by Esther Clark was sufficient compensation for plaintiff for her injury. As stated in Bogdahn, the jury had a right to reach this conclusion under the law and facts; therefore, we cannot disturb the verdict on the ground that it was contrary to the law and evidence.

The third assignment of error dealing with hearsay testimony of Dr. Donald requires reversal because the hearsay was critical on the issue of whether plaintiff was injured in this collision. On cross examination Dr. Donald was asked to read a report written by Dr. Bailey of his examination of plaintiff on June 10, 1975, which was four months before the collision. Dr. Bailey was employed by the Braumhauér-Donald Clinic on June 10, but did not testify. He was living in Minnesota at the time of the trial.

Dr. Donald testified that he was a partner in the Braumhauer-Donald Clinic and that Dr. Bailey was a former employee of the clinic. He was permitted, over the objection of plaintiff, to read from the records of the clinic, the medical history given by plaintiff to Dr. Bailey on June 10. Dr. Donald testified with reference to the office visit by plaintiff on June 10 that a nurse noted in writing at the top of the report that the plaintiff was complaining of “pains in the neck and shoulder.” Over the continuing objection of plaintiff Dr. Donald was allowed to read the notes of Dr. Bailey with reference to the examination of plaintiff as follows:

In reading from the notes on 6/10/75 on Mrs. Georgia Wood, birth date, 11/2/44 . ‘30 year old white female complaining of pain in her neck and skull for two to three months, pain begins in the back of the neck and radiates into the shoulders. May occur . . . ’ I’m not certain what that word is. ‘. when she has to hold her head up . hold her neck up. No pain or paresthesia in arms and hands. No history of trauma. Applying pressure sometimes helps neck. Sitting up straight makes pain worse and she takes Anacin for it. Physical examination reveals some spasms or MS of the trapezius . . That’s muscle spasm of the trapezius, I presume. His impression was, ‘muscle spasms secondary to . . . ’ I think the word is tendonitis ... or tension. I’m not certain what that word is. I can’t be certain what the spasm is secondary to. It’s either tension or . It’s got the same number of letters that tension would have in it.

This was clearly hearsay testimony and we have held in several cases that an expert witness may not base his testimony on the reports of other doctors not in evidence. Vick v. Cochran, 316 So.2d 242 (Miss.1975); Dennis v. Prisock, 221 So.2d 706 (Miss.1969); City of Laurel v. Upton, 253 Miss. 380, 175 So.2d 621 (1965); Wild v. Bass, 252 Miss. 615, 173 So.2d 647 (1965).

Our holding in City of Laurel v. Upton, supra, that a defendant had the right to cross examine a physician relative to any matters which he used and considered in reaching his opinion, and to introduce such matters into evidence, does not apply in this case because Dr. Donald’s opinion about the physical condition of the plaintiff, unlike the opinion of the physician in City of Laurel, was not based on another physician’s report, but was based on his personal examination of plaintiff following the collision.

Defendant also contends that the notes of Dr. Bailey were admissible under our holding in City of Bay St Louis v. Johnston, 222 So.2d 841 (Miss.1969). However, this case has no application because the notes at issue there were hospital records which are required to be kept by statute.

The fourth assignment of error is that the court should not have allowed defendant a sudden emergency instruction. In several cases we have set forth the conditions that must be met before a defendant is entitled to a sudden emergency instruction. These have been stated as follows: (1) The motorist seeking the instruction must be driving in a reasonable and prudent manner; (2) the driver must be suddenly confronted with an unexpected and sudden emergency; (3) the emergency cannot be created or contributed to by the negligence or the wrongful conduct of the driver claiming the benefit of the rule; (4) the driver must be placed in a position of peril to himself; (5) the driver cannot have sufficient time in which to determine by rational deliberation the best alternative; (6) and that the degree of care to be weighed by the jury under the said emergency doctrine is that which a reasonably prudent and capable driver would use under the “unusual” circumstances brought about by the sudden emergency. Lum v. Jackson Industrial Uniform Service, Inc., 253 Miss. 342, 175 So.2d 501 (1965); Peel v. Gulf Transport Co., 252 Miss. 797, 174 So.2d 377 (1965); Moore v. Taggart, 233 Miss. 389, 102 So.2d 333 (1958).

In Peel, supra, we stated:

The doctrine of sudden emergency is a legal defense to an alleged failure to use due care. It is in the nature of a confession and avoidance. 'It is the rule of expedient action under compulsion and stress of impending danger. It is a confession of having done acts, or having failed to perform a duty, which, under ordinary circumstances, would have constituted negligence, but which done or omitted under the stress of sudden peril were in fact acts or omissions of a reasonably prudent man acting under the same or similar circumstances. (252 Miss, at 815, 816, 174 So.2d at 385).

We have concluded that, although the question is close, defendant was not entitled to a sudden emergency instruction simply because she was complying with the signal of the traffic officer to proceed when another automobile suddenly entered the intersection against the signal of the traffic officer.

REVERSED AND REMANDED.

PATTERSON, C. J., INZER, SMITH, P. J., and ROBERTSON, WALKER, BROOM, LEE and BOWLING, JJ., concur.


text:
    Inez BATSON v. R. Sidney HENLEY.
    No. 49812.
    Supreme Court of Mississippi.
    Dec. 14, 1977.
    Billy J. Gilmore, Lexington, for appellant.
    Barrett, Barrett & Barrett, Pat M. Barrett, Jr., Lexington, for appellee.
   Appeal from Chancery Court, Holmes County; E. G. Cortright, Chancellor.

Before INZER, P. J., WALKER and BROOM, JJ., and JOHN M. DUNNAM, Jr., Commissioner.

AFFIRMED.


text:
    Robert STOVALL v. STATE of Mississippi.
    No. 50066.
    Supreme Court of Mississippi.
    Dec. 14, 1977.
    Guy & Dowdy, C. Wayne Dowdy, McComb, for appellant.
    A. F. Summer, Atty. Gen. by Karen A. Gilfoy, Asst. Atty. Gen., Jackson, for appel-lee.
   Appeal from Circuit Court, Pike County; Joe N. Pigott, Judge.

Before INZER, P. J., and WALKER and BROOM, JJ., and JOHN M. DUNNAM, Jr., Commissioner.

AFFIRMED.


text:
    Daniel L. RAYBOURN v. BANKERS TRUST SAVINGS AND LOAN ASSOCIATION and Walter Mack Elliott.
    No. 50120.
    Supreme Court of Mississippi.
    Dec. 14, 1977.
    E. Howard Eaton, Taylorsville, Pickering & McKenzie, Laurel, for appellant.
    Gibbes, Graves, Mullins, Bullock & Ferris, William S. Mullins, III, Laurel, E. Frank Goodman, Jackson, for appellee.
   Appeal from Circuit Court, Jones County; James D. Hester, Judge.

Before SMITH, P. J., and LEE and BOWLING, JJ.

AFFIRMED.


text:
    James M. SHOOK v. STATE of Mississippi.
    No. 50279.
    Supreme Court of Mississippi.
    Dec. 14, 1977.
    Jay Gore, III, Grenada, for appellant.
    A. F. Summer, Atty. Gen., by Wayne Snuggs, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Grenada County; Clarence E. Morgan, Jr., Judge.

Before PATTERSON, C. J., and WALKER and BROOM, JJ.

AFFIRMED.


text:
    Tony SANSONE, Sr. v. Ralph POUND.
    No. 49781.
    Supreme Court of Mississippi.
    Dec. 14, 1977.
    Cunningham, Smith & Ferrell, William W. Smith, Booneville, for appellant.
    Carnathan & Davidson, Douglas M. Wright, Tupelo, for appellee.
   Appeal from Circuit Court, Lee County; L. T. Senter, Jr., Judge.

Before INZER, P. J., and WALKER and BROOM, JJ.

AFFIRMED.


text:
    Hosea STAMPS v. STATE of Mississippi.
    No. 50064.
    Supreme Court of Mississippi.
    Dec. 14, 1977.
    Barrett, Barrett & Barrett, Pat M. Barrett, Jr., Lexington, for appellant.
   Appeal from Circuit Court, Holmes County; B. B. Wilkes Judge.

A. F. Summer, Atty. Gen., by Karen A. Gilfoy, Asst. Atty. Gen., Jackson, for appel-lee.

Before INZER, P. J., and WALKER and BROOM, JJ.

AFFIRMED.


text:
    Jackie A. STORY v. Glenn Edward STORY.
    No. 49837.
    Supreme Court of Mississippi.
    Dec. 14, 1977.
    Michael R. Medley, W. F. Selph, Jr., Jackson, for appellant.
    McLaurin, Nicols & Kelly, John C. McLaurin, Jr., Brandon, Paul Henderson, Pearl, for appellee.
   Appeal from Chancery Court, Rankin County; Osborn Guyton Idom, Chancellor.

Before INZER, P. J., and WALKER and BROOM, JJ.

REVERSED AND FORMER DECREE REINSTATED.

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


author: ALMON, Justice.

text:
    Robert B. WHALEY v. Lloyd LAWING and Mary Lawing.
    SC 2157.
    Supreme Court of Alabama.
    Sept. 23, 1977.
    Rehearing Denied Dec. 22, 1977.
    William M. Acker, Jr., and Carleton P. Ketcham, Jr., Birmingham, for appellant.
    Herbert W. Peterson, Birmingham, for appellees.
   ALMON, Justice.

Plaintiff Robert B. Whaley sued defendants Lloyd and Mary Lawing for injuries sustained when a redwood sundeck on the home of defendants collapsed. The thrust of plaintiff’s complaint is that the defendants were wantonly negligent in allowing the plaintiff, a social guest in their home, on the sundeck which they knew was unstable and dangerous. After presentation of the plaintiff’s case, the trial court directed a verdict in favor of the defendants. Plaintiff appeals citing several grounds for reversal.

Initially, plaintiff urges the court to reevaluate and abolish the traditional distinctions between trespassers, licensees, and invitees in land occupancy cases. It is sufficient to point out that in light of our recent decision in McMullan v. Butler, 346 So.2d 950 (Ala., 1977), the status of trespasser, licensee, and invitee will continue to be viable classifications under Alabama law.

Second, plaintiff contends that it was error for the trial judge to exclude from evidence a complaint filed by the defendants prior to the accident charging the contractor with negligently constructing their home. The complaint was offered as proof of the defendant’s knowledge of the defectively constructed sundeck.

As a general rule, the pleadings of a party in another action are admissible as admissions against interest where those pleadings were drawn under the party’s direction or with his consent. Redwing Carriers, Inc. v. Stone, 293 Ala. 726, 310 So.2d 206 (1975); Cole v. Louisville & Nashville R.R., 267 Ala. 196,100 So.2d 684 (1957). The prior pleadings, however, must be inconsistent with the present contentions of the party in order to be introduced as an admission against interest. Spurlin v. General Motors Corp., 531 F.2d 279 (5th Cir. 1976).

At the time the complaint was offered as evidence, defendant Mary Lawing had testified that she and her husband did have complaints against the contractor, but only concerning some unfinished wallpapering and painting and a “hollow” sound in the kitchen floor. She expressly denied having any complaints with the sundeck. In a discussion in chambers, the trial judge made it clear that he would allow the prior pleadings into evidence, but only if the complaint could be linked to the sundeck:

THE COURT: “If counsel assures me that there’s some evidence to follow that up that it had anything to do with the deck, I’ll let it in . . . .”

Upon plaintiff counsel’s statement that he was unable to offer any evidence linking the prior complaint to the sundeck, the trial court refused to allow the complaint in evidence.

Since the defendants had admitted having complaints as to other portions of the house, the prior complaint against the contractor is probative of an inconsistency only with respect to defendants’ contention that they had no knowledge of the sundeck’s defective condition. Because the plaintiff was unable to offer any evidence correlating the prior complaint and the sundeck in order to show an inconsistency, the trial court’s ruling was not in error.

Third, and most significantly, plaintiff maintains that the trial court committed reversible error in directing a verdict for the defendant since there was a scintilla of evidence supporting the material elements of plaintiff’s case. That evidence, when viewed in a light most favorable to the plaintiff, reveals that the defendants Lloyd and Mary Lawing purchased a newly constructed home in Jefferson County in 1972. Attached to the rear of this house was an elevated redwood sundeck which was accessible either through a door entering the den or a staircase leading up from the ground. During the year and a half prior to its collapse, the sundeck was continuously and extensively used. For example, the sundeck was used on numerous occasions for social gatherings, and at times as many as 16 people occupied the deck simultaneously. Both defendants testified that at no time during this period did they notice or feel anything wrong with the deck. At no time did anyone complain about the safety of the deck. The plaintiff and his wife testified that they had experienced a slight bounce and vibration of the sundeck, but they never mentioned it to the defendants. Indeed, the plaintiffs continued to use the sundeck on their own initiative, and often in lieu of other entrances, during their subsequent visits to the defendant’s home. In an affidavit, the Lawing’s maid stated that the deck wobbled so badly that she wouldn’t use it, but in a subsequent deposition she denied having made such a statement and testified that she walked on the sundeck every day she was at work. On the day the deck collapsed the plaintiff was concededly a guest in the defendant’s home and voluntarily went on the sundeck with his wife and child. Upon the collapse of the deck, plaintiff sustained injuries to his back.

“Wantonness has been defined as the conscious doing of some act or the omission of some duty which under knowledge of existing conditions and while conscious that, from the doing of such act or the omission of such duty, injury will likely or probably result, and before a party can be said to be guilty of wanton conduct it must be shown that with reckless indifference to the consequences he consciously and intentionally did some wrongful act or omitted some known duty which produced the result. Griffin Lumber Co. v. Harper, 247 Ala. 616, 25 So.2d 505; Taylor v. Thompson, 271 Ala. 18, 122 So.2d 277; Johnson v. Sexton [277 Ala. 627, 173 So.2d 790], supra.” Lewis v. Zell, 279 Ala. 33, 181 So.2d 101.

In order to constitute wantonness, a failure to act must be accompanied by knowledge that someone is probably impe-rilled, and the failure to act must be in reckless disregard of the consequences. Thompson v. White, 274 Ala. 413, 149 So.2d 797 (1963); Crocker v. Lee, 261 Ala. 439, 74 So.2d 429 (1954). The most crucial element of wantonness is knowledge, and that element need not be shown by direct evidence; rather, it may be made to appear by showing circumstances from which the fact of knowledge is a legitimate inference. Kil-crease v. Harris, 288 Ala. 245, 259 So.2d 797 (1972); Blount Brothers Construction Co. v. Rose, 274 Ala. 429, 149 So.2d 821 (1962). With respect to a directed verdict, if a legitimate inference furnishes a scintilla of evidence in support of the theory of the complaint, then the question must go to the jury. Kilcrease v. Harris, supra.

Plaintiff contends that because he and his wife noticed a vibration in the deck, a reasonable inference can be drawn that the defendants also noticed the vibration. Such an inference, although somewhat tenuous, is nevertheless reasonable and legitimate. However, to support the charge of wantonness, an inference must also be drawn that the defendants investigated the wobble and determined it to be the result of defective and dangerous construction and not merely a vibration incident to any elevated structure. Further, an inference must be drawn that the defendants had knowledge that such defective construction was likely to result in the collapse of the structure. In view of the uncontroverted evidence of the extensive, heavy, and uneventful use of the sundeck during the previous year and a half, we feel that these additional inferences exceed the bounds of reasonableness and legitimacy. The directed verdict was not in error.

Finally, we have considered plaintiff’s other contentions on appeal and find no error in the trial court’s judgment.

The judgment in this cause is therefore affirmed.

AFFIRMED.

TORBERT, C. J., and BLOODWORTH, MADDOX and EMBRY, JJ., concur.


text:
    The WESTERN RAILWAY OF ALABAMA, a Corp. v. Donna STILL, a minor who sues By and Through her father and next friend, William H. Still, William Stacy Still, a minor, etc., and William H. Still, Individually.
    SC 1937.
    Supreme Court of Alabama.
    Sept. 30, 1977.
    Rehearing Denied Dec. 22, 1977.

      W. F. Horsley of Samford, Denson, Hors-ley & Pettey, Opelika, for appellant.
    John W. Johnson, Jr., Lanett, R. C. Wallace, Jr., LaFayette, for appellees.
   ALMON, Justice.

The Western Railway of Alabama appeals a jury verdict and judgment against it for $43,000 by the appellees, Donna Still and William Stacy Still, both minors, and their father,- William H. Still. We affirm.

Donna Still and William Stacy Still were passengers in a Volkswagen automobile driven by Donna Sue Shepard, age 16. The vehicle wrecked when it crossed a railroad track. The appellees filed suit against the driver of the vehicle and appellant alleging that their injuries were due to the negligent or wanton operation of the automobile in combination with the negligent or wanton manner in which the crossing was maintained. The jury returned a verdict against the appellant only.

Donna Sue Shepard was driving south on Chambers County Highway No. 67 about 6:30 or 7:00 P.M. on April 7, 1975. The visibility was good, the weather was clear, and the road was dry and in good condition. Miss Shepard testified that she was driving about 40 miles an hour before nearing the railroad crossing and slowed down upon approaching it. She said she was going about 30 miles an hour when she traversed the crossing. The purpose of her trip was to take William Stacy to the airport. Miss Shepard admitted she was in a hurry.

Several persons living near the railroad crossing were eyewitnesses to the accident. The sum of their testimony is that the Volkswagen was traveling south between 40 and 70 miles an hour when it crossed the tracks. The county road runs north and south, and the railroad track runs generally east and west. Upon hitting the tracks, the vehicle bounced up and went to the east side of the road. The vehicle then began to skid on its left wheels. It skidded to the western side of the road, crashed into an embankment, and rolled over several times. Two children were thrown from the vehicle when it overturned. There is also testimony that the automobile’s wheels left the ground.

An investigating officer arrived at the scene shortly after the accident. He found scuff marks beginning approximately 69 feet south of the tracks on the eastern side of the highway and continued 115 feet over to the western edge of the highway. The marks on the highway were not the result of an application of brakes. It was the officer’s opinion that the vehicle was traveling 50 miles an hour when it began making scuff marks on the road.

Both sides introduced experts who testified as to the condition of the road, the railroad crossing, and the cause of the accident. The appellees’ expert testified that the grade of the railroad crossing is higher than the grade of the county road. Approaching the crossing from the north, the road has the effect of super elevation and reverse super elevation which tends to pull an automobile to the left as it gets closer to the crossing. Also, going over the crossing faster than 40 miles an hour would produce a ramp effect. In addition, the road curves back to the right as it proceeds south over the crossing. This expert’s testimony tends to place the blame for the accident on the design and maintenance of the crossing.

Experts for the appellant conducted experiments by driving across the tracks in a Volkswagen under conditions similar to those of the accident. In their experiments, they crossed the tracks at 50 miles an hour without the automobile’s wheels leaving the ground. Their testimony discounts the design of the crossing as a factor in the accident and places the blame on excessive speed. One expert estimated the vehicle was traveling between 55 and 70 miles an hour; the other expert, between 65 and 70 miles an hour.

The experts, the investigating officer, and persons living in the vicinity, eyewitnesses and otherwise, all gave their opinions on what is a safe speed to proceed over the tracks. Their opinions ranged from 15 to 40 miles an hour. The investigating officer further testified that without the railroad crossing the safe speed for the road at that particular point would be between 50 and 55 miles an hour.

Appellant raises three issues on appeal: (1) whether the acts of the appellant’s co-defendant, Donna Sue Shepard, constitute as a matter of law an intervening agency sufficient to break the causal connection between appellant’s negligence and appel-lee’s injuries; (2) whether the court properly instructed the jury on the issue of intervening cause; and (3) whether it was proper to submit to the jury the issue of wanton misconduct on the part of the appellant.

I

Appellant argues two reasons why it was entitled to a directed verdict on the issue of intervening cause: (1) it had no reason to foresee or anticipate the negligent misconduct of Donna Sue Shepard, for it had the right to assume that persons using the public roads will operate their vehicles with reasonable care and skill; and (2) any negligence on the part of the railroad only created a condition, or gave rise to the occasion, by which the injury was made possible constituting remote cause.

This court recently addressed the issue of negligent liability and intervening agency in Vines v. Plantation Motor Lodge, 336 So.2d 1338 (Ala., 1976), where it stated:

“Negligence alone does not afford a cause of action. Liability will be imposed only when negligence is the proximate cause of injury; injury must be a natural and probable consequence of the negligent act or omission which an ordinarily prudent person ought reasonably to foresee would result in injury. If, between the alleged negligent act or omission and the injury, there occurs an independent, intervening, unforeseeable event, the causal connection between the alleged negligence and the injury is broken. [Citations omitted.]
“The key here is foreseeability. This court has held many times that a person, who by some act or omission sets in motion a series of events, is not responsible for consequences of intervention of another agency, unless at the time of his original act or omission, the act of the intervening agency could reasonably be foreseen. If so, the casual chain is not broken. If the injury results from an independent intervening, efficient cause, not reasonably foreseeable, the original negligent act or omission is not the proximate cause of injury.” [Citations omitted.] 336 So.2d at 1339.

It is only when the facts are such that reasonable men must draw the same conclusion that the question of proximate cause is one of law for the courts. Morgan v. City of Tuscaloosa, 268 Ala. 493, 108 So.2d 342 (1959) and authorities cites therein. Normally, questions must go to the jury, if the evidence, or any reasonable inference therefrom, furnishes a scintilla in support of the theory of the complaint. Alabama Power Co. v. Taylor, 293 Ala. 484, 306 So.2d 236 (1975); Rule 50(e), ARCP.

Applying the above principles to this case, this court cannot say as a matter of law that the facts show the actions of Donna Sue Shepard were an unforeseeable intervening cause. The appellant is charged with an affirmative duty to put and keep railroad approaches and crossings in proper repair for the use of the traveling public. Alabama Great Southern Railroad Co. v. Bishop, 265 Ala. 118, 89 So.2d 738 (1956); L. & N. R.R. Co. v. Hubbard, 148 Ala. 45, 41 So. 814 (1906). It obviously knows that persons will travel in automobiles over the crossing. This necessarily includes the knowledge that in the course of human conduct some people will break the speed limit. In such a case, the jury must decide whose actions are the proximate cause of the injury, or whether both party’s actions concurred and combined to proximately cause the injury.

In this case, the evidence does not conclusively show that Donna Sue Shepard was negligent. In addition, there was only a general verdict against the appellant and it is impossible to ascertain whether that verdict was decided on a lack of wanton misconduct by Donna Sue Shepard or a lack of negligence by her.

A jury question was presented. Rule 50(e), ARCP. Accordingly, this court only holds that the actions of Donna Sue Shepard do not as a matter of law constitute an efficient intervening cause between appellant’s negligence and appellees’ injuries. The trial court correctly refused to grant appellant a directed verdict.

II

During the course of its deliberations, the jury returned seeking further instructions from the trial court. The record reveals the following exchange:

“EXHIBIT A — QUESTION OF THE JURY—
“ ‘What is the law when the railroad and Donna Sue Shepard are both found inattentive; and who will be responsible for the damages?’
“/s/ Horace Owens, Foreman.”
“COURT — Gentlemen, in response to your question, the only way I can respond to that question is to reiterate part of my charge, which I now do. And listen to this carefully.
“When both parties are negligent, as I have defined it to you, then the verdict will be against the railroad.

Appellant maintains the charge of the court is erroneous. At page 42 of its brief, appellant states:

“. . . The Judge should have told the jury that if the defendants were concurrently negligent, and if the negligence of the Railroad was a proximate cause of the accident, then the verdict would be against the Railroad. As given, the Judge’s instruction omits the issue of proximate cause, and incorrectly calls on the jury to find against the Railroad, even though its negligence may have been only a remote cause of the injury.”

The trial court specifically referred the jury to its previous charge on negligence. In that charge, the court stated:

“First, I would like to say, that negligence of two persons may combine and concur to proximately cause injuries or damages. Causes concurred and combined when they are joined together produce a given result. If you are reasonably satisfied, from the evidence in this case, that both of the defendants were negligent, and their negligence concurred and combined and proximately caused the damages complained of, then you would render a verdict against Western, but not against Donna Sue, as far as negligence goes.
“. . .If you are reasonably satisfied from the evidence, that the negligence, if any, of Donna Sue was the sole proximate cause of this accident, you must return a verdict for the railroad. In other words, they say that Donna Sue was solely responsible for the accident. This is one of their defense. So, if you are reasonably satisfied from the evidence, that Donna Sue was negligent, or had wanton misconduct and that proximately caused the accident by itself, then you must render a verdict for the railroad. But, if you believe the negligence of each contributed and proximately caused the accident, then you must find against the railroad, and for the Plaintiff.
“I mentioned proximate cause. Let me define that to you. The proximate cause of an injury, is that cause, which is the natural and probable sequence of events, and, without the intervention of any new or independent cause, produces the injury and without which, the injury would not have occurred.

We have examined the entire charge which includes the above quoted parts. We find that the jury was adequately charged on the issues of proximate cause and concurrent liability.

Ill

This brings us to the question of wantonness. The appellant railroad contends that the wanton count should never have been submitted to the jury because the plaintiff did not submit any evidence that the Railroad had knowledge that its act or omission would likely injury someone.

“ ‘Wantonness’ has been defined by this court as: ‘the conscious doing of some act or the omission of some duty under the knowledge of existing conditions, and conscious that from the doing of such act or omission of such duty injury will likely or probably result. [Citations omitted.]
“ ‘Knowledge need not be shown by direct proof but may be shown by adducing facts from which knowledge is a legitimate inference. [Citations omitted.’ ” Tolbert v. Gulsby, 333 So.2d 129, 131-132 (Ala., 1976).

A wantonness count can go to the jury if there is a scintilla of evidence to support it. Tolbert v. Gulsby, supra; Kilcrease v. Harris, 288 Ala. 245, 259 So.2d 797 (1972).

In this case, the jury could conclude that the railroad crossing was maintained in a negligent fashion and that the railroad knew of this because of bi-weekly inspections by its roadmaster. Additionally, the jury viewed the scene of the accident and knowledge it may have acquired while there, though unreported, is proper evidence. Whaley v. Sloss-Sheffield S. & I. Co., 164 Ala. 216, 51 So. 419 (1909); McElroy, The Law of Evidence in Alabama, Volume Two, Section 208.01, p. 129, 130.

The duty of the railroad to maintain its crossing in proper repair for the traveling public and its bi-weekly inspection of the premises are sufficient facts from which the jury could infer knowledge by the railroad of the attendant circumstances constituting negligent conduct. It was not error to submit the wanton count to the jury. Tolbert v. Gulsby, supra; Kilcrease v. Harris, supra.

The judgment of the trial court is hereby affirmed.

AFFIRMED.

TORBERT, C. J., and BLOODWORTH, JONES and EMBRY, JJ., concur.

      . Donna Sue Shepard could be found guilty only if her actions constituted wanton misconduct due to Alabama’s Guest Statute. Tit. 36, § 95, Code of Alabama 1940, Recompiled 1958.