text:
    George Stuart McBRIDE v. Margaret Ann PHILLIPS.
    No. 49637.
    Supreme Court of Mississippi.
    May 25, 1977.
    J. Travis Buckley, Laurel, for appellant.
    Finch, Wicht & Doleac, William W. Wicht, Jr., M. Ronald Doleac, Hattiesburg, for appellee.
    Before GILLESPIE, C. J., and ROBERTSON and WALKER, JJ.
   Appeal from Chancery Court, Perry County; John M. Dunnam, Jr., and Michael Sullivan, Chancellors.

AFFIRMED.


source: Caselaw Access Project

license: Public Domain

text:
    Earl BERNHARDT, one and the same as Earl Hart v. J. W. Furr & Radio Hattiesburg, Inc.
    No. 49776.
    Supreme Court of Mississippi.
    May 25, 1977.
    Rex K. Jones, Hattiesburg, for appellant.
    Aultman, Pope, Aultman & Tyner, Dor-ranee Aultman, Hattiesburg, for appellee.
    Before GILLESPIE, C. J., and ROBERTSON and WALKER, JJ.
   Appeal from Circuit Court, Forrest County; Jack B. Weldy, Judge.

AFFIRMED.


text:
    Irene G. PAINTER v. Angelo A. ZAMBRONI and Rosa M. Zambroni.
    No. 49457.
    Supreme Court of Mississippi.
    May 25, 1977.
    William W. Ballard, Hernando, for appellant.
    Taylor, Whitwell & McClure, Robert Q. Whitwell, Keith Alexander, Southaven, for appellee.
   Appeal from Chancery Court, DeSoto County; L. E. Hannaford, Sr., Chancellor.

Before PATTERSON, P. J., and SUGG and WALKER, JJ.

AFFIRMED.


text:
    Debra Holder Moye BROUSSARD v. Patrick MOYE.
    No. 49842.
    Supreme Court of Mississippi.
    May 25, 1977.
    Robert M. Acevedo, Biloxi, for appellant. Pritchard, Myers & Gordon, William H. Myers, Pascagoula, for appellee.
    Before PATTERSON, P. J., and SUGG and WALKER, JJ.
   Appeal from Chancery Court, Jackson County; Kenneth B. Robertson, Chancellor.

AFFIRMED.


author: WALKER, Justice,

text:
    TEXAS PACIFIC OIL COMPANY et al. v. Mrs. Addie O'Dene Pittman HOLDER and Benton Holder.
    No. 49519.
    Supreme Court of Mississippi.
    May 25, 1977.
    Brunini, Grantham, Grower & Hewes, Ed Brunini, Jr., Jackson, for appellants.
    Oates & Houston, 0. Marvin Oates, Jr., Bay Springs, for appellee.
    Before PATTERSON, SUGG and WALKER, JJ.
   WALKER, Justice,

for the Court:

Mr. and Mrs. Benton Holder brought this action for damages against the Texas Pacific Oil Company, Inc., Murphy Oil Corporation, and Robinson Resource Development Company, Inc., in the Circuit Court of the Second Judicial District of Jasper County. The Holders are the owners of a 40-acre tract of land in Jasper County. The three corporate defendants were the lessees under an oil, gas and mineral lease on the entire tract. The Holders alleged that the defendants informed them that they planned to drill an oil well on a 3.5 acre section of the tract. That section was covered by young growing timber, which the Holders alleged would not reach full maturity until 1984. The Holders cleared this area and obtained $487.50 for the standing timber. However, the defendants failed to drill the well as they had planned. The Holders claimed they were damaged by the defendants’ negligence, and the defendants admitted liability in the trial court. The trial court awarded the Holders $3,074.13 in damages, representing $280.00 for the costs of reseeding the area, and $2,794.13 which constituted the alleged value that the timber would have had at maturity in 1984. In their appeal, the defendants contend that the trial court applied the wrong measure of damages. We agree.

Most of our reported decisions involving the proper valuation of timber are cases of trespass, in which one party has wilfully or negligently cut the timber on another’s land. In this case, there was no trespass, but the Holders cut the timber themselves, because of the representations of the defendants that a well would be drilled at that particular location. However, we can see no reason why a different measure of damages should be applied. We have held, “The damage for cutting and removing, or destroying, marketable trees, where the trespass is not willful is generally held to be the value of the timber at the time and place where the trees were cut.” Chevron Oil Co. v. Snellgrove, 253 Miss. 356, 364, 175 So.2d 471, 474 (1965). The same rule appears in Day v. Hamilton, 237 Miss. 472, 476, 115 So.2d 300, 302 (1959). In this case, the trees were marketable, and the defendants’ misrepresentation is not alleged to have been wilful. Therefore, the rule of Sneilgrove and Day should apply. The value of the trees at the time of the cutting was $487.50. The Holders have already received that sum and are not entitled to further recovery from these defendants.

Neither reason nor precedent supports the Holders’ argument that they are entitled to the value of the timber at the time of its maturity in 1984. Since no well was drilled, the land was available for immediate preparation and replanting. The trees then planted would reach full maturity and full value, although at some time later than 1984. The recovery granted by the trial court thus would allow the Holders to have the full value of the mature trees now and again some time after 1984. Such a recovery would be excessive. The Holders have not lost full value of their trees, but only the value represented by several years growth. This value is fully reflected in the market price of the immature trees at the time they were cut. Any further damages would allow a windfall to the Holders.

The case of Sun Oil Co. v. Nunnery, 251 Miss. 631, 170 So.2d 24 (1964), relied upon by the trial court, provides no support to the Holders. That case holds that, where a tract of land is not permanently damaged, damages should not be measured by the market value of the full tract after the injury as opposed to the market value before the injury. Id. at 647, 170 So.2d at 31-32. The case does not state the rule of damages advocated by the Holders. Rather, since the damage could be repaired, the Court held that the plaintiffs could recover only for the costs of restoration. Id. at 648, 170 So.2d at 32. In this case, the temporary damage can be compensated for by preparation and reseeding of the land. The defendants concede that they are liable to the Holders for these costs in the amount of $300.00 even though the trial court only allowed $280.00.

Thg judgment of the trial court must therefore be affirmed as to the liability of the defendants. However, the judgment must be modified so as to reduce the amount of damages from $3,074.13 to $300.00.

AFFIRMED AS MODIFIED.

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


text:
    David JONES v. STATE of Mississippi.
    No. 49961.
    Supreme Court of Mississippi.
    May 25, 1977.
    Blackmon, Smith & Nichols, George C. Nichols, Canton, for appellant.
    A. F. Summer, Atty. Gen. by Frankie Walton White, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, P. J., and ROBERTSON and WALKER, JJ.
   WALKER, Justice,

for the Court:

On March 16,1976, David Jones was tried in the Circuit Court of Madison County, Mississippi, and found guilty of murder. The court sentenced Jones to life imprisonment in the state penitentiary. That conviction was not appealed to this Court.

On June 28, 1976, Jones filed his petition for a writ of error coram nobis in the Circuit Court of Madison County, alleging that his attorney’s actions had effectively deprived him of his right to appeal. The statement of facts accompanying Jones’ sworn petition stated that his lawyer had told Jones’ family that the appeal would cost approximately $3,000, which the family did not have. Jones further stated that the lawyer told his family that the court would not allow him to proceed in forma pauperis. Acting without an evidentiary hearing, the circuit court dismissed the petition “for the reason that it is not properly the subject of Coram Nobis.” Jones has perfected his appeal to this Court.

In his petition Jones does not allege any infirmity in the conduct of his trial. Rather, he alleges that he was denied an appeal through a fault of his counsel. The trial court therefore correctly concluded that coram nobis was an inappropriate remedy, since its proper function is to vacate a judgment that never should have been issued in the first place. This purpose was best described in Botts v. State, 210 So.2d 777, 779 (Miss.1968):

The function of a writ of error coram nobis is to bring to the court’s attention some matter or fact which does not appear on the face of the record which was unknown to the court or the parties at the time, and which, if known, and properly presented, would have prevented the rendition of the original judgment. (Emphasis added).

The facts alleged by Jones would not have prevented the rendition of the original judgment, since they took place after the rendition of the original judgment. Therefore, coram nobis does not apply.

Furthermore, the relief available after a successful petition for writ of error coram nobis would be inappropriate in this case. Were the trial court to find merit in his allegations, it could only grant him a new trial. Allred v. State, 187 So.2d 28, 32 (Miss.1966). However, Jones has not alleged that he was deprived of a fair trial, but that he was deprived of an appeal. Jones is actually asking for an appeal to this Court, and the trial court has no authority to grant that relief.

This does not mean that Jones is entirely without a remedy. This Court has stated, “Due process requires adequate post conviction remedies.” In Re Broom, 251 Miss. 25, 29, 168 So.2d 44, 46 (1964). Jones’ proper remedy is to file with this Court a petition for an appeal. With his petition, he should file the same sort of affidavits as are required by our Supreme Court Rule 38 for a petition for writ of error coram nobis originally filed with this Court. Upon receipt of such a petition and accompanying affidavits, this Court may decide for itself what relief may be due.

Since the trial court properly concluded that coram nobis is an inappropriate remedy in this case, its judgment must be affirmed.

AFFIRMED.

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


author: PATTERSON, Presiding Justice,

text:
    Lottie W. ROLPH, Plaintiff-Appellant, v. BOARD OF TRUSTEES OF FORREST COUNTY GENERAL HOSPITAL, Defendant-Appellee.
    No. 49324.
    Supreme Court of Mississippi.
    May 25, 1977.
    Rehearing Denied Aug. 10, 1977.
    Holmes, Dukes & Welborn, Hattiesburg, Smith, Smith, Tate & Stuart, E. C. Stuart, Jr., David R. Smith, Poplarville, for plaintiff-appellant.

      Heidelberg, Sutherland & McKenzie, Francis McRae Turner, III, R. W. Heidelberg, James F. McKenzie, Hattiesburg, for defendant-appellee.
    Before PATTERSON, P. J., and ROBERTSON and BROOM, JJ.
   PATTERSON, Presiding Justice,

for the Court:

Lottie Rolph filed a declaration in the Circuit Court of Forrest County seeking damages against the Board of Trustees of the Forrest County General Hospital for alleged negligence under the principle of respondeat superior. Answering, the defendant interposed a plea of governmental immunity. Accordingly, the circuit court judge sustained the defendant’s plea and entered a final judgment dismissing Ms. Rolph’s claim with prejudice thus giving rise to this appeal.

Specifically, the appellant contends that House Bill No. 1205, Chapter 723, Laws of Mississippi, 1971, the nucleus of the lower court’s decision, is violative of Article 4, Section 87 of the Mississippi Constitution (1890) and therefore application of the general law providing for liability of such institutions to the extent of liability insurance procured, Mississippi Code Annotated section 41-13-37 (1972), requires that her case be heard on the merits. Predictably, the appellee argues that the subject bill is constitutional, specific and thus dispositive.

To determine the legal viability of Ms. Rolph’s claim, it is necessary to examine chronologically the various relevant statutes. During an Extraordinary Session, the legislature enacted Senate Bill No. 1229, Chapter 89, Laws of Mississippi, 1953, entitled, “An Act to Authorize the Board of Trustees of Forrest County General Hospital to Obtain and Pay for Liability Insurance.” However, No. 1229 expressly “retained and recognized” sovereign immunity. Subsequently, House Bill No. 1205, Chapter 723, Laws of Mississippi, 1971, entitled, “An Act to Amend Chapter 89 of the Mississippi Laws of the Extraordinary Session of 1953 so as to Authorize and Empower the Board of Trustees of Forrest County General Hospital to waive the Immunity of said Hospital and Said Board of Trustees from Suit for Negligent, Tortious or Unauthorized Acts of its Agent, Servants or Employees under Certain Circumstances and to Establish Procedure for and Limitations of such Waiver of Immunity,” was passed. No. 1205 also “retained and recognized” the immunity attendant state agencies. These legislative acts are unquestionably specific and particular in that both encompass only the liability of the Forrest County General Hospital. They were intended and are local and private acts.

The legislature passed during the intervening time two statutes of general or statewide application dealing with county hospitals, their ability to procure liability insurance and immunity from suit. Mississippi Code Annotated section 41-13-11 (1972), first enacted in 1954, essentially duplicated Senate Bill No. 1229, Chapter 89, Mississippi Laws, 1953; Mississippi Code Annotated section 41-13-37 (1972), enacted the same date as Section 41-13-11, as relevant, provides:

The board of trustees . . . shall have the further power and authority, in its discretion, to take adequate liability insurance on the operation of said hospital and, if liability insurance is in effect, may be sued by anyone affected to the extent of such insurance carried. However, immunity from suit is only waived to the extent of such liability insurance carried

Thus it is that House Bill No. 1205, Chapter 723, Laws of Mississippi, 1971, and its progenitor, Senate Bill No. 1229, Chapter 89, Laws of Mississippi, 1953, provided an exception to the general law in favor of Forrest County. Specifically, the act of procuring insurance was alone sufficient in 81 counties to effect a qualified waiver of immunity whereas once insured, House Bill No. 1205 empowered the Board of Trustees of Forrest County General Hospital to waive its immunity from suit in those cases which the board determined to have merit and would be “in the best interest of the hospital.”

Article 4, Section 87, of the Mississippi Constitution (1890) provides:

No special or local law shall be enacted for the benefit of individuals or corporations, in cases which are or can be provided for by general law, or where the relief sought can be given by any court of this state; nor shall the operation of any general law be suspended by the legislature for the benefit of any individual or private corporation or association, and in all cases where a general law can be made applicable, and would be advantageous, no special law shall be enacted.

In Smith v. Transcontinental Gas Pipeline Corp., 310 So.2d 281 (Miss.1975), where a local and private act in effect constituted an exception to the general law in favor of Jones County contrary to Section 87, we held:

. Both Ohio and Mississippi Constitutions prohibit the enactment of a patchwork of local and private “county wide” laws, each applicable to one or more counties only, and exempting the rest, differing from county to county, without regard to any rational or even recognizable classification. (310 So.2d at 285)

The differing treatment occasioned by the statutes here under scrutiny must stand constitutional muster as required in Smith, supra.

It cannot be doubted that the legislature has as its prerogative the power to control the substantive law applicable to liability in tort for negligence. This does not, however, mean that the consequent statutes may effectuate this purpose with an uneven hand. What rational justification exists for the differing treatment set forth in House Bill 1205 when there are no peculiar characteristics with reference to the people inhabiting Forrest County other and different from those who inhabit the remaining 81 counties, with similar environment and similar characteristics as to people and when they, as to those things that are usually embraced in a class, are the same? The necessary answer is none.

Accordingly, we find House Bill 1205 to be an impermissible “countywide” law of the genre forbidden by Article 4, Section 87, of the Mississippi Constitution (1890) and further, that application of the general law, Mississippi Code Annotated section 41-13-37 (1972), is required. The judgment dismissing the appellant with prejudice is reversed and the cause remanded for trial on the issue of negligence with recovery circumscribed by the policy limits as provided in the statute.

Because we are of the above opinion, consideration of the appellant’s additional assignments of error is unnecessary, particularly in view of Berry v. Hinds County, 344 So.2d 146 (Miss.1977).

REVERSED AND REMANDED.

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


author: GILLESPIE, Chief Justice,

text:
    Tommy Jack RAMSEY et al. v. Bill ROBINSON, Executor of Last Will and Testament of Mrs. Ella Walker, Deceased.
    No. 49363.
    Supreme Court of Mississippi.
    May 25, 1977.

      Finch & Finch, J. Barry Finch, Iuka, for appellants.
    James Porter Dean, Corinth, P. 0. Gibson, Jr., Jackson, for appellee.
    Before GILLESPIE, ROBERTSON and LEE, JJ.
   GILLESPIE, Chief Justice,

for the Court.

This is an appeal from a decree of the Chancery Court of Tishomingo County concerning the probation of a will. From an adverse decree, Tommy Jack Ramsey, executor, and the other appellants who would have taken under the will rejected by the court as having been revoked appealed to this Court.

On June 28, 1960, Mrs. Ella B. Walker, a resident of Tishomingo County, executed a holographic will devising her estate, consisting principally of 138 acres of land, to Billy Gene Robinson and James Charles Robinson. This will was kept in her safe deposit box. Thereafter, on July 1, 1971, Mrs. Ella B. Walker executed a will before two witnesses making a different disposition of her estate in favor of her husband for life and upon his death to Lara Bell Robinson. On March 20,1973, Mrs. Ella B. Walker had the holographic will dated June 28, 1960, brought from her safe deposit box and she wrote on the right hand side of the top of the single page will the following: “March 20,1973.” The chancellor before whom this case was tried found that placing the date on the top of the holographic will constituted a republication of that will and a revocation of the July 1, 1971, will.

The question: After a holographic will is revoked by the execution of a valid subsequent will, can it be revived by the testator inscribing a later date on the previously revoked holographic will?

Mississippi Code Annotated section 91-5-1 (1972) contains the requirements for the execution of wills. Both wills in this case comply with these requirements' — the first by being written wholly by the testatrix, and the second by the attestation of two witnesses.

Code section 91-5-3 (1972) provides in part as follows:

A devise so made, or any clause thereof, shall not be revocable but by the testator or testatrix destroying, canceling, or obliterating the same, or causing it to be done in his or her presence or by subsequent will, codicil, or declaration, in writing, made and executed.

The testatrix neither destroyed, can-celled, nor obliterated the July 1, 1971, will. Therefore, if she revoked that will it must be under the last clause of Code section 91-5-3 which reads “by subsequent will, codicil, or declaration, in writing, made and executed.”

The requirements of our statute for the revocation of a will require the document whether a subsequent will, codicil, or declaration, be in writing, made and executed. Execution in this context means that it must be signed. Therefore, we hold that the revocation of a will must be. by subsequent will, codicil, or declaration, in writing, made and signed by the testator. Mrs. Walker did not sign the purported March 20,1973, revocation but merely put a date on the previously revoked holographic will. This was neither a subsequent will, nor a codicil, nor a declaration in writing executed (signed) by Mrs. Walker. Nor was it signed by any other person at her direction. There was no writing expressing an intention to revoke the July 1,1971, will.

Nor was there a republication of the June 28, 1960, holographic will. According to 2 Bowe-Parker: Page on Wills, section 23.1 at 573 (3rd.ed.rev.1960), republication is only accomplished by complete reexecution of the will in which all the statutory formalities of original execution are complied with, or by the making of a subsequent properly executed codicil to the earlier will. This statement is substantially the same as the requirements of our statute on revocations, Code section 91-5-3.

Parol proof that Mrs. Walker stated in effect that she wanted to republish the 1960 will and revoke the 1971 will does not alter the requirements of this statute.

Therefore, we hold that the insertion by Mrs. Ella B. Walker of the date on the holographic will was neither a republication of that will nor a revocation of the July 1, 1971, will. For this reason, the decree appealed from is reversed and judgment here establishing the will dated July 1, 1971, as the true last will and testament of Mrs. Ella B. Walker.

REVERSED AND RENDERED.

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


author: MADDOX, Justice.

text:
    Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.
    SC 2263.
    Supreme Court of Alabama.
    Jan. 21, 1977.
   MADDOX, Justice.

WRIT DENIED.

TORBERT, C. J., and FAULKNER, SHORES and BEATTY, JJ., concur.


author: BOOKOUT, Judge.

text:
    Gary David SMITH v. STATE.
    7 Div. 393.
    Alabama Court of Criminal Appeals.
    April 19, 1977.
    Rehearing Denied May 3, 1977.
   BOOKOUT, Judge.

Robbery; sentence: ten years imprisonment.

After our remandment to the trial court with directions to either furnish appellant with an adequate transcript for an appeal or grant him a new trial, we now have the case back on the trial court’s answer to the remandment. Appellant still contends that an accurate transcript of the evidence has not been furnished.

The trial court held a hearing on December 15, 1976, to determine the accuracy of the court reporter’s transcript of the evidence and to make additions or corrections thereto.

Mary E. Brandon testified that she was a private stenographer who sometimes typed transcripts on a fee basis for the court reporter from his recorded dictation. She had typed pages 1 through 101 and turned them over to Mary Lambert. The evidence developed the fact that Paul Williams, the official court reporter, was frequently intoxicated and was extremely derelict in his duties. Mary Lambert was another court reporter in the circuit, and she proofread the part typed by Mary Brandon and then finished typing the remainder of the evidence. She reviewed with Williams any errors she detected. On one instance, where a word was missing, Williams told her, “Oh, hell, just put something in there.”

As inexcusable as the conduct of Williams was, and as lax as the trial court’s prior supervision over him had been, the trial court has now made a diligent effort to secure a transcript of the evidence of sufficient accuracy to guarantee adequate appellate review to the appellant.

Where, due to no fault on the part of an indigent appellant, the court reporter refuses or fails to provide a transcript of the evidence, there is, and has been, a procedure to follow in order to obtain appellate review. In cases appealed prior to December 1, 1975, Title 7, § 827(3), Code of Alabama 1940, Recompiled 1958, provides in pertinent part:

“Statement in lieu of transcript of evidence. If the court reporter be deceased, or for any other reason cannot transcribe the evidence, any party desiring to appeal, may, in lieu of it, present a succinct statement of the evidence, including objections, oral motions, rulings of the court, the oral charge of the court, and all documents offered in evidence shall also be identified and copied in the order in which offered, and the trial judge shall hear the same and make such corrections in and additions to it as may be proper and shall approve the same as a transcript of the evidence. . . . ”

In cases appealed on or after December 1, 1975, the new Alabama Rules of Appellate Procedure apply. Rule 10(f), A.R.A.P. is as follows:

“Correction or Modification of the Record. If any difference arises as to whether the record truly discloses what occurred in the trial court, the difference shall be submitted to and settled by that court and the record made to conform to the truth. If anything material to either party is omitted from the record by error or accident or is misstated therein, the parties by stipulation, or the trial court either before or after the record is transmitted to the appellate court, or the appellate court, on proper suggestion or of its own initiative, may direct that the omission or misstatement be corrected, and if necessary that a supplemental record be certified and transmitted. All other questions as to the form and content of the record shall be presented to the appellate court.”

We have reviewed the supplemental transcript of the hearing on the correctness vel non of the transcript of the evidence. The trial court made a number of corrections and certified the record to us as being correct and accurate. The case is not complicated, and the testimony is simple. The issues are neither technical nor complex. We hold that the procedure employed by the trial court in response to our remandment complies with the requirements of both Title 7, § 827(3) and Rule 10(f), supra. We, therefore, accept the trial court’s corrections of the record and its certification thereof.

ON THE MERITS

The evidence clearly establishes that the appellant, on the evening of December 20, 1974, went to the Dutch Village Apartments in Anniston. He knocked on several doors and asked tenants for the location of the apartment of Linda Loveless. Finally he knocked on the door of the prosecutrix and made the same inquiry of her. When she unlatched the door and stepped out to give directions, the appellant put a gun in her face and pushed her back into the apartment. He then beat her, tore her clothes off, raped her and took four one dollar bills and some change from her purse. He left the prosecutrix and went to the apartment of Linda Loveless and had her drive him to a truck stop in another part of town. The prosecutrix made prompt complaint to the police and went to a local hospital. Appellant was arrested the next day.

There is no question concerning the identity of the appellant as the robber. The State made out a prima facie case of robbery which strongly supports the verdict of the jury.

I

Appellant contends that a statement he gave to officers should not have been admitted into evidence as it was not voluntary. Appellant’s statement, which not totally inculpatory, was in pertinent part as follows:

“Jackie Sweat and I went to Mason’s Discount Store at Anniston Plaza about three weeks ago and she put a Titan .25 caliber automatic pistol on layaway. The reason for doing this was that a boy named ‘Scooter’ Quick had tried to run us off the road. I was going to use the gun to get him. I picked the gun up myself last Friday, December 20,1974. I ground the serial number off the gun with a file. I went to Hubbard Oil on Highway 78 and took some pills and drank some whiskey. I went to Dutch Village to look for a girl that I know. She had moved from her apartment to another apartment so I went from one apartment to another looking for her. I came to the apartment of a girl (who I later learned to be [prose-cutrix] ). I asked her if she knew where Linda Loveless lived. She opened the door and I walked in. I don’t remember anything else that happened until I heard her say that her boy friend was coming. I told her that I did not care. She told me to leave and she would not call the police. I tore the telephone loose from the wall and looked through her purse for money. There was no money in the purse except for one silver dollar and I did not take it. She took me to the back door and let me out.”

Appellant contends that he was pushed, shoved, beaten by officers and was incarcerated in solitary confinement in a cell commonly referred to as the “black box.” When appellant’s description of the “black box” was compared with descriptions given by other witnesses, the trial judge concluded that appellant’s story was fabricated. Such a conclusion by the trial judge was clearly supported by the evidence.

Evidence given by officers, outside the presence of the jury, was to the effect that appellant was given a full Miranda warning and that his statement was not obtained by threats, duress, or offer of reward and thus was voluntary. Such testimony was in direct conflict with appellant’s account of the circumstances.

We have on numerous occasions recognized that it is not unusual for conflicting evidence to be presented on a voluntariness inquiry. Tanner v. State, 57 Ala.App. 254, 327 So.2d 749 (1976); Webb v. State, 55 Ala.App. 258, 314 So.2d 711 (1975); Botsford v. State, 54 Ala.App. 482, 309 So.2d 835 (1974). In each of the above cases, we quoted from McNair v. State, 50 Ala.App. 465, at 470, 280 So.2d 171, 176 (1973) cert. denied 291 Ala. 789, 280 So.2d 177:

“. . . When such a conflict occurs and the trial judge finds that the confession was voluntarily made, great weight must be given to his judgment. This finding will not be disturbed on appeal unless the appellate court is convinced that the conclusion is palpably contrary to the weight of the evidence. . Even where there is credible testimony to the contrary, if the evidence is fairly capable of supporting the inference that the rules of freedom and voluntariness were observed, the ruling of the trial judge need only be supported by substantial evidence and not to a moral certainty. . ” (Citations omitted.)

We find no error in the ruling of the trial court on the question of voluntariness.

II

Appellant contends that his prior conviction of rape is a bar to his trial and conviction on the instant robbery charge.

The record shows that on March 24, 1975, appellant was arraigned and entered a plea of “not guilty” and was given until March 27 to file special pleas or a demurrer. A demurrer to the indictment was filed by appellant on March 26, 1975, and denied by the trial court on March 28. For some reason not shown, a second arraignment was held on May 19 at which the indictment was read and explained and, “. . . for his plea thereto says ‘Not Guilty’ and Plea of Autrefois & former jeopardy.” Trial was set for June 3, and the court granted leave to file, “demurrer, Motions, Special Pleas by May 23, 1975.” The record also shows that appellant’s plea of former jeopardy or autrefois convict was filed April 16; the State’s replication to the plea was filed May 22, and after argument on May 23, 1975, was overruled. Had only the first arraignment been held, then the filing of the plea would have been too late pursuant to Steward v. State, 55 Ala.App. 238, 314 So.2d 313, cert. denied 294 Ala. 201, 314 So.2d 317 (1975). However, contrary to the contention of the State, the plea of former jeopardy was timely filed in light of the fact that a second arraignment was held and the plea was filed prior to that arraignment. We must, therefore, consider the merits of appellant’s plea of former jeopardy.

This Court (by Harris, J.) settled the issue by holding in Jones v. State, 50 Ala.App. 174, 277 So.2d 920 (1973):

“. . . Robbery and rape are two separate and distinct offenses and are completely unrelated. To successfully plead former jeopardy, the plea must allege that the offense charged in the two prosecutions is the same in law and fact. Shirley v. State, 35 Ala.App. 639, 51 So.2d 702 Green v. State, 37 Ala.App. 610, 73 So.2d 387.”

Also see: Hopkins v. State, 54 Ala.App. 75, 304 So.2d 629 (1974).

AFFIRMED.

All the Judges concur.


text:
    Ex parte Gary David SMITH.
    SC 2539.
    Supreme Court of Alabama.
    June 3, 1977.
   MADDOX, Justice.

Writ denied.

TORBERT, C. J., and FAULKNER, SHORES and BEATTY, JJ., concur.


text:
    OPINION OF THE CLERK, Supreme Court of Alabama.
    No. 2.
    Supreme Court of Alabama.
    May 2, 1977.
   RULE 44, ALABAMA RULES OF JUDICIAL ADMINISTRATION EFFECTIVE DATE OF REVOCATION

Mr. Charles Y. Cameron, Administrative Director of Courts, has requested my opinion on the question of whether or not the revocation of Rule 44, Alabama Rules of Judicial Administration, is retroactive to January 16, 1977, or prospective from April 8, 1977.

My answer to this question is given pursuant to the authority conferred on the Clerk of the Supreme Court by Section 6-105, Act No. 1205, Acts of Alabama, 1975 Regular Session, to give his opinion in writing on any question of the interpretation of any rule of administration promulgated by the Supreme Court.

It is my opinion that the revocation of Rule 44, Alabama Rules of Judicial Administration, acts prospectively from April 8, 1977.

Rule 44, Alabama Rules of Judicial Administration, effective January 16, 1977, was adopted by the Supreme Court of Alabama on January 16, 1977, pursuant to the authority granted by Section 6.11 of the Judicial Article (Amendment 328 to the Constitution of Alabama).

The Supreme Court of Alabama, on April 8, 1977, ordered that:

The order adopted and incorporated in the Alabama Rules of Judicial Administration as Rule 44, on January 11, 1977, be, and the same is hereby, revoked, the revocation being effective on this the 8th day of April, 1977.

In my opinion, it was the intention of the Supreme Court that Rule 44 should remain in full force and effect until the date of its revocation, April 8, 1977; and that this Court, by its order of April 8, 1977, rendered Rule 44 inoperative and ineffective only as to the future.

(s) J. 0. Sentell J. 0. Sentell Clerk of Supreme Court


author: ALMON, Justice.

text:
    In the Matter of the ESTATE OF Anne Jean Wilcox DAWSON, Deceased. W. S. PRITCHARD, Jr., Guardian Ad Litem of Interest of Anne Jean Wilcox Dawson v. Bernice EUBANKS, Administratrix Ad Colligendum.
    SC 1818.
    Supreme Court of Alabama.
    May 20, 1977.

      W. S. Pritchard, Jr., Birmingham, for appellant.
    W. Frank Greenleaf, for Sirote, Permutt, Friend & Friedman, Birmingham, for appel-lee Bernice Eubanks, administratrix ad col-ligendum.
    C. Fred Daniels, Birmingham, guardian ad litem for grandchildren of Anne Wilcox Dawson.
   ALMON, Justice.

Bernice Eubanks, sister of Anne Jean Wilcox Dawson, filed a complaint in circuit court requesting the court to declare Anne Dawson dead; prior to the filing of the complaint in circuit court, the probate court appointed Eubanks as Administrator Ad Colligendum for the estate of Anne Dawson, pending proof of death. The circuit court found that Anne Dawson is dead and that her death occurred on or about September 24, 1974.

This appeal was taken by W. S. Pritch-ard, Jr., as guardian ad litem for the interest of Anne Dawson. Appellant contends (1) that the circuit court did not have jurisdiction of the case, (2) that Alabama law does not authorize declaring a missing person dead until at least seven years have passed (3) that a tape from a Federal Grand Jury proceeding was improperly considered by the judge, and (4) that the decision was contrary to the great weight of the evidence.

FACTS

Mrs. Dawson, age 49, was last seen by her sister, Cecelia Worley, on Sunday, September 22,1974, at Dawson’s cottage near Gun-tersville Lake. Mrs. Dawson’s plans were to leave Guntersville late Monday, September 23, 1974, and to return to her home in Birmingham, and to be at her business, a beauty shop in Fairfield, on the following Tuesday.

Appellee Eubanks entered into evidence, without objection, a number of police reports. Part of the information contained therein is the following:

Tina Burgess, part owner of the C & S Lounge, stated to investigating officers that a woman identified as Anne Dawson came into the lounge at approximately 6:15 P.M. on Monday, September 23, 1974. A little later, Mrs. Burgess received a $50.00 bill and inquired if anyone in the place could change it. Mrs. Dawson did so and in the process removed a lot of money from her purse.

A man believed to be Paul John Knowles had come to the lounge shortly after 3:45 PM. When Mrs. Dawson changed the $50.00 bill, this man came up to her and began a conversation. Between then and approximately 9:15 PM when they left together, they appeared to have become quite friendly.

Peggy Pulley, an employee of C & S Lounge, stated that this man came in at 11:00 AM and left about 3:00 PM. She left work about 3:50 PM. About 7:30 PM that evening, Peggy returned and noted that the man and a woman identified as Mrs. Dawson were together.

Peggy Pulley and Mrs. Burgess described the man as age 30; approximately 6 feet tall; 170 pounds, red hair with no part which became below the ears; brown eyes with red streaks; gold, brown and white plaid shirt; gold pants; white belt; and white shoes with buckles.

A report later obtained by the police described Knowles as a white male, age 29, 6 feet 2 inches tall, 180 pounds. Knowles used the credit card of William Bates, whom Knowles is believed to have murdered in Homewood, Alabama, on September 23, 1974.

The following day, Tuesday, September 24, 1974, Mrs. Dawson’s car was found at the Hide-a-Way Lounge in Tarrant City, several miles south of the C & S Lounge. Diane Campbell of the Hide-a-Way Lounge observed a man approximately 40 years old, brownish-grey hair, dressed in a suit and tie come in around 8:00 or 8:15 PM on the 23rd of September. A woman who was possibly Mrs. Dawson came in about 8:30 PM. They left together about 9:00 PM.

Another waitress, Nancy Manning, had served the party drinks. She looked at a picture of Mrs. Dawson, but could not make positive identification. She described the man as 5 feet, 9 inches tall, grey haired, in his 40’s, and dressed in a suit and tie.

On October 9,1974, all three Birmingham area television stations and both newspapers were given a synopsis of the case, along with photographs of Mrs. Dawson and a reproduction of the composite of the suspect, for dispersion through the news media.

Around the middle of January, 1975, Sgt. Jeffrey Webb of the Birmingham Homicide Detail received information that Mrs. Dawson had been taken to Louisiana and murdered. The basis for the information was a memorandum of a tape made by Paul John Knowles. Accompanying the memorandum was a court order from U.S. District Judge Wilbur D. Owens, Jr., prohibiting dissemination of the information. Notes made from the memorandum read as follows:

“In an unknown town somewhere in Ala., probably the latter part of Sept., 1974, Knowles picked up a woman in a low-class bar. She was in her 40’s possibly 50’s and apparently was fairly attractive. Her first name was Ann. She was a beautician and owned a beauty shop. The two left the first bar and went to a nicer bar not far away. Following several drinks, they went to the parking lot of the bar at which point Knowles abducted her at knife point. Her car was apparently left in the parking lot. Thereafter Knowles transported the woman in his ‘73 Chev. Impala white bottom, blue vinyl top, to an area just inside Louisiana, off of 1-20 where he took her into the woods, raped her and strangled her. He obtained about $500 from her. The wooded area is not far from a town, name unknown.”

Sgt. Webb and others during the middle of January, 1975, made an extensive search of a large area in Madison Parish, Louisiana. The search included use of horses, 4 wheel drive vehicles and a helicopter. A significant portion of the area was under water, which would not have been the case in September. The search failed to find the body.

In the middle of February, 1975, Sgt. Webb went to a site near Bovina, Mississippi, where two skeletons had been found near a small creek. Part of the bones had been washed away. Based on the dental chart of Mrs. Dawson, a pathologist at Vicksburg General Hospital established that neither body was that of Anne Dawson.

Paul John Knowles’ lawyer was contacted by the news media of Vicksburg, Mississippi. He stated to them that in addition to Knowles’ admitted killing of a beautician nearby, he also killed a teenage girl about the same time in the same area. The pathologist had established that one of the skulls found was definitely that of a teenager.

While the testimony of Sgt. Jeffrey Webb was being taken, the trial judge interjected the following:

“THE COURT: It might be proper at this time for the Court to state that it now has before it, and has had before it for the past several days, a transcript of the Federal grand jury proceedings conducted on January the 7th, 1975, in Macon, Georgia, relative to Paul John Knowles and which is a transcript of certain tapes which were found in his possession. The information relative to Anne Jean Wilcox Dawson is contained in the material in the transcript which consists of about 62 pages which was a recitation of the events in the life of this person, Knowles. The Court has carefully read and considered all of this matter in the transcript. The transcript has been submitted to this Court under seal and is to be returned under seal. And, this Court and this Court alone has looked at it and it alone will look at it as set forth in the forwarded letter from the Federal Judge in Macon, Georgia, from whose office it was received. The information in this transcript can be tied in with the information which has been given from several witnesses and particularly from Sergeant Webb who is testifying presently that makes the Court familiar with statements that he has made and makes his statements coherent and cognizant to the Court and makes it improper [sic] evidence. All right. Let’s proceed.”

Sgt. Webb’s conclusion was that Mrs. Anne Dawson was murdered by Paul John Knowles.

Mrs. Dawson was not married at the time of her alleged death, though she had been married three times. She divorced her first husband, Miller, and her second husband, Dawson, and apparently annulled her third marriage with Wolfe. Her three minor grandchildren, her sole heirs, were the result of a child by her first husband, Miller. A guardian ad litem was appointed by the trial court to represent the grandchildren; they are before us as appellees.

Mrs. Dawson had undergone surgery and her kidneys were failing. She had a colostomy requiring daily care, and regularly took antibiotics. Her sister, Cecilia Worley, testified that Mrs. Dawson did not take her extra sterilized bag or her antibiotics with her. Worley’s testimony indicated Mrs. Dawson “didn’t have very much longer to live . . . .” However, Mrs. Dawson does not appear to have been despondent about life. On the contrary, Worley testified she “was beginning to get her head above water [financially],” and looked forward to when she could spend all of her time at the house on Guntersville Lake.

As far as Mrs. Dawson’s business, her sisters and an employee testified she was very dependable. If she was going to miss a day for some reason, she would always let them know. Tuesdays were days when only Mrs. Dawson and one other beautician worked. Mrs. Dawson was always careful not to allow one beautician to be there alone, and she always handled her own customers. Moreover, she always communicated with her sister, Eubanks, as many as three times a week.

Should Mrs. Dawson be declared dead, her estate would pass to her three minor grandchildren, ages 16, 17 and 18 as of March, 1976. The appellee, Eubanks, and Dawson’s other sister, Worley, would get nothing.

I

Appellant contends that the circuit court did not have jurisdiction of this case. He argues that jurisdiction properly lies with the probate court under Tit. 61, § 156 et seq., Code of Alabama, 1940, Recompiled 1958. Tit. 61, § 156, reads as follows:

“§ 156. Appointment of administrators. — It shall be lawful for the respective probate courts of this state to appoint administrators of the estates of persons who are presumed to be dead on account of absence for seven or more years from the place of their last domicile within this state as in this article provided.”

Appellees contend that what they are seeking is a declaratory judgment as prescribed by Rule 57 of the Alabama Rules of Civil Procedure and Tit. 7, §§ 156-168, Code, supra.

Tit. 7, § 159, reads as follows:

“§ 159. Who may have deciaration of rights, etc. — Any person interested as or through an executor, administrator, trustee, guardian, or other fiduciary, creditor, devisee, legatee, heir, next of kin, or ces-tui que trust, in the administration of a trust, or of the estate of a decedent, an infant, lunatic, or insolvent, may have a declaration rights or legal relations in respect thereto: To ascertain any class of creditors, devisees, legatees, heirs, next of kin, or other; or to direct the executors, administrators, or trustees to do or abstain from doing any particular act in their fiduciary capacity; or to determine any question arising in the administration of the estate or trust, including questions of construction of wills and other writings.”

Rule 57, in addition to referring to Tit. 7, §§ 156-168, notes that “[t]he existence of another adequate remedy does not preclude a judgment for declaratory relief in cases where it is appropriate.” In addition, Rule 2, ARCP, states that “[there shall be one form of action to be known as ‘civil action.’ ”

We see no problem with the jurisdiction of the court. The probate court appointed her administratrix ad colligendum pending proof of death. While the probate court could have made that decision, or alternatively, the estate could have been transferred to the circuit court via Tit. 13, § 139, Code, supra, Rule 57 clearly provides that the existence of another remedy does not make a declaratory judgment inappropriate.

Appellant contends that the relief requested is not equitable relief. The question of whether the relief requested is equitable or legal is now academic in that either type of relief may be granted by the same court. Rule 2, ARCP.

Appellant also argues that the court lacked jurisdiction because appellee Eu-banks has no interest in the controversy, i.e., she lacks standing. Eubanks was appointed administratrix ad colligendum pending proof of death by the probate court. She was the next of kin capable of serving as the grandchildren were then minors. See Tit. 61, § 81, Code, supra. Tit. 7, § 159, Code, supra, specifically addresses this contention.

II

Neither the research by the parties to this case nor that by us has disclosed an Alabama case addressing the question of declaring a missing person dead where they have been missing for less than 7 years. Appellant thus argues that to do so is contrary to Alabama law.

According to Corpus Juris Secundum a person missing less than 7 years may be proven dead.

. . Where a person has disappeared it is not always necessary to wait for seven years before attempting to prove that he is dead; death may be proved by showing facts from which a reasonable inference would lead to that conclusion.
“The fact of death may be proved by direct evidence, or it may be proved in some instances by circumstantial evidence alone. If the fact of death is proved by evidence and inferences therefrom, no presumption as to death, common law or statutory, need be brought into play.” 25A C.J.S. Death § 9.

An earlier work, Greenleaf on Evidence, provides the following on the subject:

“Other presumptions are founded on the experienced continuance or permanency of longer and shorter duration, in human affairs. When, therefore, the existence of a person, a personal relation, or a state of things, is once established by proof, the law presumes that the person, relation, or state of things continues to exist as before, until the contrary is shown, or until a different presumption is raised, from the nature of the subject in question. Thus, where the issue is upon the life or death of a person, once shown to have been living, the burden of proof lies upon the party who asserts the death. But after the lapse of seven years, without intelligence concerning the person, the presumption of life ceases, and the burden of proof is devolved on the other party. This period was inserted, upon great deliberation, in the statute of bigamy, and the statute concerning leases for lives, and has since been adopted, from analogy, in other cases. . . . Upon an issue of the life or death of a party, . the jury may find the fact of death from the lapse of a shorter period than seven years, if other circumstances concur; as, if the party sailed on a voyage which should long since have been accomplished, and the vessel has not been heard from. . . .”1 Greenleaf on Evidence, § 41 (14th edition, 1883).

In a footnote from the above quotation is found the following:

“But in accordance with the English authorities and the better rule, it was held that there is no presumption as to the date of his death within the seven years . . ..” Id., fn. (b) at 58.

Our case law has followed the common law rule that a party who has not been heard from for 7 years is presumed dead, as well as the rule that the party’s death may be proved to have occurred within the 7 years, though otherwise he is assumed to have died at the end of the 7 years. See Kyser v. McGlinn, 207 Ala. 82, 92 So. 13 (1921); Walker v. Walker, 218 Ala. 16, 117 So. 472 (1928); Eisenberg v. Stein, 222 Ala. 576, 133 So. 281 (1931); 7A Ala.Dig., Death, <s=»2.

The difference between proving a person dead who has been missing less than 7 years rather than more than 7 years lies in the degree of proof required to establish the death. In the latter case there is a presumption of death which shifts the burden of proof to the party claiming life, though even here the presumption has to be applied with care. See National Life & Accident Ins. Co. v. Ruffin, 237 Ala. 401, 187 So. 488 (1939). In the former case, the party claiming death must carry the full burden of proving death, including overcoming the presumption of life.

Logically, we see no reason why a missing person cannot be proved dead in less than 7 years. Other states, as well as the United States Supreme Court, have reached the same conclusion. See Fidelity Mutual Life Association v. Mettler, 185 U.S. 308, 22 S.Ct. 662, 46 L.Ed. 922 (1902); Tisdale v. Connecticut Mutual Life Insurance Co., 26 Iowa (Stiles) 170 (1868); Cox v. Ellsworth, 18 Neb. 664, 26 N.W. 460 (1886); Bernstein v. Metropolitan Life Ins. Co., 139 Me. 388, 34 A.2d 682 (1943).

“ . . .By reference to the textbooks and cases, it seems to be the settled rule, both in England and this country, that seven years is the period at which the presumption of continued life ceases; but this period may be shortened by the proof of such facts and circumstances connected with the person whose life is the subject of inquiry, as, when submitted to the test of reason and experience, would force the conviction of death within a shorter period. Under the rule above stated, if any person domiciled in the city of Lincoln leaves the place of his residence on a journey of business, health, or pleasure, or simply disappears, and does not return, nor is heard of by any person at said city, or elsewhere, so far as is known to the authority making the inquiry, until the lapse of the period of seven years, the presumption that the person is still in life ceases to exist, and he is presumed to be dead, without regard to any fact connected with the circumstances, life, or habits of such person. But when the inquiry arises before the expiration of seven years, and the facts and circumstances of the person are proved to have been such as to compel the thoughtful and experienced mind to believe that, if still living, such absent person would have returned, or communicated with his home, wife, children, relatives, or friends left behind, or to the care and enjoyment of property abandoned, and that he has never returned, — in such case, although the period of seven years has not elapsed, the presumption of continued life may be held to have ceased.” Cox v. Ellsworth, supra, 18 Neb. at 669, 26 N.W. at 462.

Our legislature has adopted the common law of England (Tit. 1, § 3, Code, supra) which appears to have allowed proof of death in less than 7 years. 1 Greenleaf on Evidence, § 41, fn. 1 at 59 (14th ed. 1883).'

We conclude, therefore, that upon proper proof, a person missing less than 7 years may be proven dead.

Ill

Appellant contends that it was clearly improper for the trial judge to consider the transcript of the Federal Grand Jury proceedings, where the transcript was not placed into evidence. In rebuttal, appellees note that appellant made no objection, nor did he move for the judge to exclude that information from his consideration. Rule 43(c) ARCP.

While we are of the opinion that the transcript of the Federal Grand Jury was, under the circumstances, properly before the court, we shall nevertheless proceed to review the sufficiency of the evidence as it appears in the record.

IV

Appellant’s argument that Appellee Eubanks failed to prove the death of Mrs. Anne Dawson is perhaps most strongly stated in the points he made during his cross-examination of Sgt. Webb: (1) No one positively identified Knowles as being with Mrs. Dawson on September 23, though Sgt. Webb felt assured that things “matched” when he received information in January from the U.S. District Court in Macon, Georgia. (2) The only conclusive evidence was the confession by Knowles. Appellant notes that Knowles could not be convicted for murdering Mrs. Dawson based on his confession without independent evidence of corpus delicti.

However, the question is not whether the evidence will support a criminal conviction of Paul John Knowles. The question is whether Mrs. Dawson has been proven dead by a preponderance of the evidence.

“ . . . This was not a criminal case, and it was not necessary that the death should be proven beyond a reasonable doubt. The party on whose side the weight of evidence preponderated was entitled to the verdict. . . . ” Fidelity Mutual Life Association v. Mettler, supra, 185 U.S. at 317, 22 S.Ct. at 665-666.

In summary, the evidence presented earlier shows the following:

1. Mrs. Dawson was dependable in the operation of her business.

2. She had a good relationship with her sisters.

3. She had health problems requiring daily care.

4. Her health problems would eventually terminate her life prematurely.

5. She looked forward to a time in the near future when she could spend all of her time at her house near Guntersville Lake.

6. A diligent search was made to find Mrs. Dawson.

7. No one has heard from her since September 23, 1974.

8. The night before her disappearance, she was seen in the C & S Lounge with a man fitting Knowles’ description.

9. Knowles used Bates’ credit card in Homewood, Alabama, on September 23, 1974.

10. Knowles confessed to murdering a beautician named Ann who he met in a low class bar.

Based on the above, we conclude that Appellee Eubanks has rebutted the presumption of life and proved by a preponderance of the evidence that Mrs. Anne Jean Wilcox Dawson is dead. However, we add the caveat that judges should be on guard against abuse of attempts to declare persons dead in less than 7 years. Convincing evidence should be required to overcome the presumption of life.

The judgment of the trial court is affirmed.

AFFIRMED.

BLOODWORTH, JONES and EMBRY, JJ., and SIMMONS, Retired Circuit Judge, sitting by designation of the Chief Justice, concur.


author:
PER CURIAM.
      JONES, Justice

text:
    CITY OF MOBILE, a Municipal Corporation v. Florence Ruth LARGAY.
    SC 1881.
    Supreme Court of Alabama.
    May 20, 1977.
    Robert C. Campbell, III, Mobile, for appellant.
    James A. Yance of Cunningham, Bounds, Byrd, Yance & Crowder, Mobile, for appel-lee.
   PER CURIAM.

Defendant, City of Mobile, appeals from a judgment and jury verdict of $25,253 awarded plaintiff, Florence Ruth Largay, and from denial of its motion for new trial. We hold that the trial court erred in submitting the case to the jury on the issue of proximate cause. We reverse and render.

At approximately 3:00 p. m. on October 25,1974, in broad, open daylight, plaintiff, a 19-year-old college student who worked part time for the Mobile Press-Register, parked her ear in a public parking space on Franklin Street in Mobile, Alabama, alongside a vacant city museum building known as the Old Roche Building. As she was getting out of her car, an unidentified black male proceeded to cross the street towards her car and spoke to her. The black male had come from the opposite side of Franklin Street. She turned back to her car and picked up some papers. When she stood up beside the car to close the door, the same man was standing immediately in front of her. He pulled a knife and forced her into her car. She fought back, grabbed the knife and screamed. She was cut by the knife and pushed down on the floorboard. The assailant tried to start the car six or seven times. Failing in his attempt to start it, he dragged her down the sidewalk and through an open cellar door into the vacant city museum building owned by the City of Mobile. She was blindfolded and her hands were tied behind her back with a belt. The assailant beat her, raped her, and left her for dead. The man has not been apprehended. Plaintiff finally worked her hands loose from the belt and made her way back to the street, where she was able to obtain the assistance of two fellow employees who had just parked their cars on their way to work.

The building where this assault occurred was purchased by the City of Mobile in 1972. It had previously been owned by the Housing Authority. It was used as a museum for approximately four years. In March 1973, it was closed to the public for restoration. The evidence showed that city employees checked the building about once a week. The fully restored museum was re-opened oh' February 8, 1976. There was some testimony which indicated that prior to this incident the building had been broken into on several occasions. According to other testimony, “winos” and derelicts slept in the cellar area of the building; wine and whiskey bottles littered the area in and around the building; and cars parked in the vicinity of the building had been broken-into. Photographs taken immediately following the incident and introduced into evidence show the building in a state of disrepair.

Plaintiff sued the City of Mobile and a jury rendered a verdict in her favor in the amount of $25,253. The City, having moved for a directed verdict at the close of plaintiff’s case, then moved for judgment notwithstanding the verdict or a new trial. The motion was denied. The City appeals.

The City raises the following issues on appeal:

I. Whether the doctrine of municipal immunity operates as a bar to the plaintiff’s recovery.

II. Whether plaintiff was a trespasser on the property owned by the City, and thus the legal duty owed her by the City was merely not to injure her intentionally or wantonly.

III. Whether,, the proximate cause of plaintiff’s injuries was the act of the unidentified assailant. Or, stated otherwise, whether his criminal act was an efficient superseding, or independent intervening, cause and relieved the City of any liability.

I.Municipal Immunity

Because this case arose before Jackson v. City of Florence, 294 Ala. 592, 320 So.2d 68 (1975), the City contends that, if the ownership and operation of this building was a governmental function, the plaintiff's case is barred.

In view of the result which we reach on the issue of proximate cause, we find it unnecessary to address this issue.

II.City’s Duty as a Property Owner

Although we entertain grave doubts concerning the duty owed plaintiff by the City, we pretermit consideration of that issue, too, because of the result which we reach on the issue of proximate cause.

III.Proximate Cause

The third issue raised by the City is dis-positive of this appeal: Was the issue of proximate cause properly submitted to the jury, or should the trial court have ruled, as a matter of law, that the City’s allegedly negligent maintenance of its building was not a proximate cause of plaintiff’s injuries?

Solely for purposes of deciding this issue, we assume, since the jury must have so found, that the City had negligently maintained the building. But, as this Court stated in Vines v. Plantation Motor Lodge, 336 So.2d 1338, 1339 (Ala.1976):

“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. Mobile City Lines, Inc. v. Proctor, 272 Ala. 217, 130 So.2d 388 (1961) . .
“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 causal 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. . . .”

Generally, we have held that the issue of proximate cause is a question for the jury. Alabama Power Co. v. Guy, 281 Ala. 583, 593, 206 So.2d 594 (1967). This general rule is not applicable when the evidence establishes no reasonable inference in support of a plaintiff’s claim. Williamson v. Birmingham Transit Corp., 344 So.2d 489 (Ala.1977). Where the evidence, when viewed in the light most favorable to the party against whom a motion for a directed verdict has been granted, establishes no such inference, the moving party is entitled to a directed verdict.

We hold that the evidence in the present ease fails to establish any reasonable inference in support of plaintiff’s case on the issue of proximate cause and that the trial court erred in denying the City’s motion for a directed verdict on that issue.

To hold otherwise would be directly contrary to our recent decision in Vines v. Plantation Motor Lodge, supra, and would have the effect of overruling that case. Vines is directly in point.

In Fines, the defendants had, in violation of a city ordinance, left their truck unlocked with the keys in the ignition. The truck, which was parked in a dark alley behind defendants’ business (in a high crime rate area), was stolen by a teenager, who was apparently under the influence of drugs and who drove it in such a manner that it collided with the' motorcycle on which Bobby Dean Vines and her husband Gary were riding. Gary was killed.

Although this Court observed that an alarming number of auto thefts occur when keys are left in the vehicle and that a substantial proportion of stolen vehicles are involved in accidents, we held that the thief’s negligent driving was the proximate cause of the injuries and that the consequences of the theft were too remote to have been reasonably foreseeable by defendants when they left the truck unattended with the keys in the ignition. The Court affirmed the trial court’s grant of summary judgment in favor of defendants.

In the present case, the criminal act was at least as unforeseeable as that in Vines. Clearly, the assailant did not even intend to use the building until his first plan to carry the plaintiff away was thwarted when he was unable to start her car. Only when he failed after six or seven attempts to start the car, did he resort to the unlocked cellar.

We hold, as a matter of law, that the use of the unlocked cellar for the perpetration of rape was not a reasonably foreseeable consequence of the City’s failure to maintain the building.

REVERSED AND RENDERED.

TORBERT, C. J., and BLOODWORTH, MADDOX, FAULKNER, ALMON, SHORES, EMBRY and BEATTY, JJ., concur.

JONES, J., dissents.

JONES, Justice

(dissenting):

I respectfully dissent. Because I reach a different conclusion than 'that reached by the majority on the issue of proximate cause (and I because I would affirm), I will address all three issues:

I.Municipal Immunity

II.Duty

III.Proximate Cause

I. Municipal Immunity

Because this case arose before Jackson v. City of Florence, 294 Ala. 592, 320 So.2d 68 (1975), I agree with the City’s contention that, if the ownership and operation of this building was a governmental function, the plaintiff’s case is barred. The City’s “governmental immunity” defense is to be tested by the pre-Jackson standard which is based on the governmental/proprietary distinction.

Initially, then, we must determine if the trial Judge was correct in submitting to the jury the factual determination whether this building was being operated as a museum (the contention of the City), or had been abandoned for any use (contention of the plaintiff). The trial Judge charged the jury as follows:

“I charge you that on the question of a museum that the burden is on the plaintiff to reasonably satisfy you that the building was not serving as a museum in October of 1974.”

After defining “museum,” the trial Judge continued:

“I charge you that if the building had been established as a museum, the fact that it was closed for a renovation would not in and of itself make it stop being a museum; I charge you that you must determine from all of the facts, from all of the evidence and circumstances of this case covering the period from 1969 until October of 1974 whether you are reasonably satisfied that it was not serving as a museum. If you are not reasonably satisfied that it was not serving as a museum in October of 1974, the plaintiff would not be entitled to any further consideration in this case, and the city’s immunity would demand that you return a verdict, ‘We, the jury, find for the defendant.’ ”

Implicit in this instruction is the ruling by the trial Court that the City’s operation of this building for the purposes of a museum is a governmental function, thus entitling the City to immunity from suit; or, stated conversely, the City’s abandonment of this building and its nonuse constitutes a proprietary function, rendering the City liable for injuries proximately resulting from the negligent maintenance of a building. The factual issue as to its use was properly submitted to the jury under the appropriate instructions. I agree with the statement in Sturzinger v. City of Sandusky, 28 Ohio App. 263, 162 N.E. 684 (1929):

“It is the use to which the property is put at the time of the accident which determines the applicability of governmental immunity.”

The factual question concerning the use of this building at the time Ms. Largay was raped was properly submitted for the jury’s determination. Therefore, I would hold that the trial Court’s ruling concerning governmental immunity was correct.

II. City's Duty as Property Owner

The City contends that Ms. Largay was a trespasser and as such the only duty the City owed was not to wantonly injure her. I do not agree. It is important to analyze the act of Ms. Largay which constitutes the alleged trespass. The City argues that the act of the unknown assailant forcing Ms. Largay into the building was an act of trespass by the plaintiff.

A study of the early English Common Law, together with the general American rule, reveals that an essential element of trespass is absent. While some courts have confused the words “voluntary” with “intentional,” there is no question that a trespass is an intentional tort; but, this does not mean that an involuntary trespass is actionable. In the 1625 case of Smith v. Stone, 82 E.R. 533 (K.B.1625), Smith charged Stone with trespass and Stone defended by claiming that he was carried upon Smith’s land by force and violence of others and was not there voluntarily. Justice Roll of the King’s Bench stated:

“[I]t is the trespasse of the party that carryed the defendant upon the land and not the trespasse of the defendant; as he that drives my cattle into another man’s land is the trespassor against him and not I who am the owner of the cattle.”

This theory of law has been adopted in American jurisprudence:

“Trespass is an intentional harm; that is, where there is no intentional act, in the sense of an act voluntarily done, there is no trespass . . . .” 75 Am. Jur.2d, Trespass, § 6. See also, Restatement of the Law of Torts, Vol. I, § 158, Comment (e).

Thus, we see the distinction between “voluntary” and “intentional.” If a person voluntarily travels on the land of another without knowledge that the land belongs to another, it is still a trespass. The element of intent is present. In Gosdin v. Williams, 151 Ala. 592, 44 So. 611 (1907), this Court held that it was immaterial that a defendant did not know his boundary lines and did not know that he was on the plaintiff’s land. This case, however, did not eliminate the element of voluntariness. There was no issue as to whether the defendant had voluntarily entered the land of the plaintiff. The question of intent is whether one intended to be on the property in question— not whether the person intended to trespass.

No one could argue that Ms. Largay voluntarily entered onto the land owned by the City of Mobile. The trespasser was the individual who forced her onto this property — the unknown assailant. Therefore, I would hold that the plaintiff was not a trespasser.

Given this legal conclusion, what, then, if any, legal duty did the City owe? It is important to note at the outset that the plaintiff is not relying on a common law theory of recovery based upon the varying duties owed by landowners to invitees, licensees, and trespassers. Instead, she states that her remedy is based upon statutory law — Tit. 37, § 502, Code. This section states in pertinent part:

“No city or town shall be liable for damages for injury done to or wrong suffered by any person or corporation . unless the said injury or wrong was done or suffered through the neglect, carelessness, or failure to remedy some defect in the streets, alleys, public ways, or buildings . . ..” (Emphasis added.)

It is the position of Ms. Largay that this Code section creates a statutorily imposed duty for municipalities to the general public for the maintenance and upkeep of buildings, regardless of their status.' I reject this contention because, taken to its logical conclusion, such in interpretation of the statute would create a higher duty on the part of a municipality than on landowners generally. Although I find no case law concerning the application of this section to the maintenance of buildings, I think the words of the statute clearly convey the intent of the legislature (even under pre-Jackson standards) to establish a duty upon municipalities with respect to the maintenance of its buildings consistent with, and identical to, that of landowners generally.

In other words, § 502 did not impose upon the City a higher duty than that recognized as creating liability under the common law. That one may be a trespasser upon city-owned property (e. g., burglary of a secured warehouse), there can be no question. I cannot accept the proposition that, by virtue of § 502, the City’s liability to such a trespasser is measured by the higher standard of due care as distinguishable from the mere duty not to intentionally or wantonly injure, which the common law places upon landowners generally.

Notwithstanding the rejection of this contention, however, in my opinion, the undisputed facts of this case bring Ms. Largay within the class of persons the statute was intended to protect. And this for the reason, as noted earlier, that, absent the element of voluntariness, she never acquired the status of trespasser. If, indeed, it was the City’s negligence — the violation of § 502 —which allowed the assailant to force her onto the City’s property, not only must her status as trespasser fail, but it necessarily follows that she comes within the ambit of the statutorily imposed duty upon the City not to injure her, or contribute to her injury, as a proximate consequence of its negligent maintenance of its building. This duty of due care, though statutorily imposed, is no different from that imposed by the common law upon landowners generally-

Thus, under the facts of this case and under appropriate instructions, I believe the jury was authorized to find that the statute had been violated — constituting a finding of negligence as a matter of law — and fix liability against the City for injuries proximately resulting therefrom.

III. Proximate Cause

This brings us to the third and final issue: Was the question of proximate cause properly submitted to the jury, or should the trial Court have ruled, as a matter of law, that the criminal assault by the unknown assailant constituted an independent intervening or efficient superseding cause, relieving the City of liability?

In considering this issue of causation, and its interplay with intervening cause, it is important to examine our prior case law. In Liberty National Life Insurance Co. v. Weldon, 267 Ala. 171, 100 So.2d 696 (1958), the question was whether an insurance company — which issued a life insurance policy naming a third party, who had no insurable interest in the life of the insured, as a beneficiary — was negligent, and thus liable for wrongful death, when the third party murdered the insured. The claim against the life insurance company proceeded on the theory that the insurance company knew, or should have known, that the third party had no insurable interest, and that the negligent issuance of the policy proximately caused the death of the insured. The defendants contended, “the separate, independent, superseding, willful, malicious, crime of murder became ‘the responsible cause’ of the death of Shirley Dianne Weldon.”

The Weldon Court quoted with approval The Restatement of the Law of Torts, § 448:

“The act of a third person in committing an intentional tort or crime is a superseding cause of harm to another resulting therefrom, although the actor’s negligent conduct created a situation which afforded an opportunity to the third person to commit such a crime, unless the actor at the time of his negligent conduct realized or should have realized the likelihood that such a situation might be created, and that a third person might avail himself of the opportunity to commit such a tort or crime.” (Emphasis added.)

Mr. Justice Lawson, speaking for the Court, continued:

“We cannot agree with the defendants in their assertion that we should hold as a matter of law that the murder of the young girl was not reasonably foreseeable . . The question of proximate cause was properly left for the jury’s determination . . . .” (Emphasis added.)

Although I agree with the City’s contention that a distinguishing feature in Weldon is that it deals with a definitive public policy — the preservation of life by prohibiting the naming of uninsurable interests as beneficiaries of life insurance policies — the principle of foreseeability may nonetheless be applicable if the facts and circumstances bring this case within the ambit of the foreseeability rule. Generally, the question of proximate cause is one of fact for the jury’s determination; but the legal perimeter for the operation of the foreseeability standard, as we shall discuss later, must be defined in terms of reasonableness and fairness. Thus, the holding in Weldon is not necessarily dispositive of the instant case.

This Court again addressed the issue of intervening cause in Alabama Power Co. v. Guy, 281 Ala. 583, 206 So.2d 594 (1967). There, two automobiles were involved in an accident, one of which collided with a utility pole. The collision resulted in one of the electric wires falling from the supporting pole to the ground at a point 150 feet from the collision. The plaintiff came in contact with this uninsulated wire and was severely burned.

The Power Company argued that “the intervening independent act of a third person, not to be anticipated by appellant, created the condition of danger, and must be held to be the proximate cause of the injury. • • .”

The Court rejected this contention, quoting Sullivan v. Alabama Power Company, 246 Ala. 262, 20 So.2d 224 (1945):

“ ‘It is not necessary that the defendant should anticipate the injury in the precise form as resulted. Nor need the particular consequences have been within the contemplation of the parties. . .

The Guy Court further stated:

“ ‘As regards proximate cause . the courts look more for the possibility of a hazard of some form to some person than for the expectation of the particular chance that happened. . . . ’ 38 Am. Jur., § 62, p. 715.”

The Court concluded by stating that the issue of proximate cause was properly submitted to the jury.

In Havard v. Palmer & Baker Engineers, 293 Ala. 301, 302 So.2d 228 (1974), this Court again faced the issue whether an intervening cause was sufficient, i. e., of such an independent nature to relieve the defendant of liability. There, a ten-car collision in the Bankhead Tunnel caused gasoline fires to erupt, including one at the front and one at the rear of the Havard ear. The plaintiff contended that the negligent maintenance of fire fighting equipment located in the tunnel was the proximate cause of the death of her husband.

As to the issue of intervening negligence, Mr. Justice Faulkner, speaking for the majority, stated:

“The ultimate test of the existence of a duty to use care is found in the foreseeability that harm may result if care is not exercised. .
“In the end proximate cause is a question for the jury . . . The alleged intervening cause of the injury, viz., the truck running into the rear of decedent’s car, is not of itself sufficient to relieve Palmer & Baker of liability since it is their original negligent act which is alleged as being the proximate cause of the decedent’s death.”

We find that the common thread which runs through these cases is that the question of proximate cause was determined to be a question of fact. The City agrees that these cases commit this Court to a somewhat liberal view in submitting the issue of causation to the jury. It contends, however, that an affirmance here would require an unwarranted extension of the holdings of our prior decision; that the intervening criminal act, under the circumstances of this case, was the sole proximate cause of the plaintiff’s injuries; and that we should so rule as a matter of law.

While the facts in each of the three cases reviewed differ one from the other, and while the intervening criminal act in Weldon received special public policy consideration, I do not believe the trial Court’s submission to the jury of the issues of duty, breach of duty, and causation constitute such an unwarranted extension.

In addition to our own case law, it may be helpful to review cases involving this subject from other jurisdictions. The subject of “attack by another,” as bearing on duty and liability of the original tortfeasor, has received considerable attention by courts throughout the country; and these cases are collected in a rather lengthy Comment in 10 A.L.R.3d 619. At page 624 it is observed:

“Foreseeability is a factor which has been discussed at great length by several cases, although it is a matter of dispute whether this concept is properly considered in the realm of duty, proximate cause, or negligence.”

The editor then notes: “[I]n at least one case, it was recognized that whether foreseeability is regarded as the measure of a duty or as a test of proximate causation, the result would not be affected. Firman v. Sacia (1959), 7 App.Div.2d 579, 184 N.Y.S.2d 945.” Footnote 17.

Any attempt to draw distinctions and comparisons among the reported cases for the formulation of rules to serve as the basis for future decisions is not only futile, but seeks an overly simplistic answer to a very complex problem. The A.L.R. annotation at p. 624 continues, “These concepts are simply too abstract to permit concrete analysis on a factual basis.”

There is perhaps, however, more consistency in the holdings of these “attack by another” cases, though based on factors less frequently discussed, then in their rationale. Though more subtle than readily apparent, these factors — -important in determining the existence of the elements of duty and causation — range from the defendant’s ability or inability to comply with the proposed duty, and the vagueness of the obligations sought to be imposed, to the ability or inability of the victim of the attack to protect himself, and the nature of the risk created by defendant’s conduct. Such factors find their articulation — whether holding the intervening act constitutes an efficient superseding cause or holding the chain of causation is not broken thereby- — in terms of “foreseeability.”

Aside from conceptual considerations — ■ whether a factor in determining duty or proximate cause — foreseeability stands at the core of the problem; and it has been said that “in every case the basic question is one of policy.” Feezor and Favour, Intervening Crime and Liability for Negligence, 24 Minn.L.Rev. 635, 642 (1939).

The A.L.R. annotation, at p. 643, after analyzing the factors affecting decisions, concludes:

“. • • and it would seem that the factors of foreseeability, cause, etc., are really elements which merely aid the courts in determining whether a given decision is fair and reasonable. Thus, it might be said that all of the decisions are really based on fairness and reasonableness, despite the fact that only a few cases have expressly discussed such considerations as a factor in reaching their conclusions.”

Foreseeability, then, must be viewed not in its most general sense, for surely it is not every foreseeable risk of harm to another that must in all events be guarded against. We all foresee the commission of crime almost everywhere and under many varying circumstances. Is foreseeability in this broadest sense to impose on each of us a duty, and thus liability, for a failure to prevent injuries to the victims of crimes? No, this is impalatable.

The inquiry must necessarily be more narrowly focused; and the permissible perimeter of the legal scope of operation of the foreseeability principle must be restricted to those events produced by the original negligent conduct which can be reasonably anticipated or foreseen.

Unless so restricted, the traditional tort concept of exempting from liability those injuries which do not flow naturally and proximately from the negligent act would be defeated. Stated conversely, only where the negligent conduct has bound up in it such perils or risks of harm, which, in the natural order of things, are eventuated through the reasonably anticipated conduct of another, and injury results therefrom, can it be said that the original misconduct was the proximate cause. The potency to do harm, contained in the original act, must continue throughout the chain of events and come to fruition in the ultimate injury; and the inquiry whether this chain is broken when the ultimate injury is precipitated by the intervening act of another as to constitute an independent intervening or efficient superseding cause is to be answered through resort to the standards of “reasonable foreseeability.”

But by what test do we judge “reasonable foreseeability?” Under any given circumstances, what events are to be classified “reasonably foreseeable?” Is it reasonable to anticipate that the rape of a young girl will be precipitated through the criminal conduct of another, though acting upon the City’s original negligent maintenance of its building? Obviously, there is no simple answer to these complex questions. But the inquiry must begin by a weighing of the relationship of the parties, the nature and extent of the risk, and the public interest to be served by the proposed solution; and these broader considerations are aided by a further consideration of such factors as the defendant’s ability or inability to comply with a proposed duty, ability or inability of the victim to protect himself, and the vagueness or clarity of the obligation sought to be imposed.

I now turn to a consideration of these factors as they relate to the instant case.

1. Relationships of the Parties. Admittedly, here, the plaintiff and defendant do not occupy the relationship, one to the other, of landlord and tenant, employer and employee, or commercial proprietor and patron. What is significant, however, as we have previously observed under the “Duty” section of this dissenting opinion, the injured plaintiff’s involuntary entry upon the City’s premises was allegedly through the City’s violation of its statutory duty of due care in the maintenance of its building. Thus, Ms. Largay, whose involuntary presence on the City’s property is itself grounded on the City’s misconduct occupies the legal status not unlike others whose relationship entitles them to due care on behalf of the City in the maintenance of its building.

As owner of the building, the City’s duty, statutorily imposed, to properly maintain the building is neither vague nor beyond its reasonable ability to perform. Conversely, the plaintiff’s ability to protect herself against the assailant is magnified by the availability to the assailant of the unoccupied and open building, as negligently maintained by the City.

It is significant to note that it is not a breach of general duty of the City to protect its citizens (e. g., failure to furnish adequate police protection) that is the basis of the plaintiff’s claim. Rather, it is the specific, more narrowly defined duty (here, statutorily imposed) of the City to maintain its building with due care, the breach of which is alleged as a proximate cause of her injuries. (Additionally, the trial Court restricted the provable elements of damages to those injuries which she suffered upon and subsequent to her forcible entry into the building.)

2. The Nature and Extent of the Risk. Initially, two aspects of the nature or character of the risk of harm to another, in its relationship to the precipitating cause of injury, must be clarified.

First, whether an intervening act is criminal, while worthy of consideration by the trier of facts in determining “reasonably foreseeable,” does not of itself constitute, as a matter of law, an efficient superseding cause as to defeat actionable negligence. The above quote from Weldon makes this point. See also McLeod v. Grant County School Dist., 42 Wash.2d 316, 255 P.2d 360 (1953).

2nd Restatement, Torts, § 449, states the rule:

“If the likelihood that a third person may act in a particular manner is the hazard or one of the hazards which makes the actor negligent, such an act whether innocent, negligent, intentionally tor-tious, or criminal does not prevent the actor from being liable for harm caused thereby.”

Comment a states that this section should be read in conjunction with § 302 B of the 2nd Restatement, Torts, which reads:

“An act or an omission may be negligent if the actor realizes or should realize that it involves an unreasonable risk of harm to another through the conduct of the other or a third person which is intended to cause harm, even though such conduct is criminal.”

Second, it is an unjustifiable restriction of the issue to focus attention upon the specific type of incident which here occurred — forcible rape. Rather than whether the actual harm is of a particular kind which was expectable, the question is whether such harm fell within the general field of danger which reasonably should have been anticipated. It is this point that is the central thrust of Alabama Power Co. v. Guy, supra.

This thought is succinctly stated by Professors Harper and James:

“Foreseeability does not mean that the precise hazard or the exact consequences which were encountered should have been foreseen.” Harper and James, Law of Torts, § 20.5, p. 1147.

2nd Restatement, Torts, § 435(1), capsules the rule of law thusly:

“If the actor’s conduct is a substantial factor in bringing about harm to another, the fact that the actor neither foresaw nor should have foreseen the extent of the harm or the manner in which it occurred does not prevent him from being liable.”

The nature of the risk here involved, in light of the two foregoing principles, must be reviewed in the factual context of the negligently maintained premises and its relationship to the act of the assailant and the rape precipitated thereby. The act occurred at 3:30 on Friday afternoon in the downtown section of the City. Ms. Largay had parked her car in a lawful parking space on the public street directly opposite, and only a few feet from, the broken basement door — accessible from the sidewalk that ran immediately adjacent to the building — through which the rapist later forced her into the building. When the assailant’s effort to start the plaintiff’s ear failed, he resorted to the only readily available refuge or cover — the abandoned city building — for the commission of his dastardly deed.

The City’s prior knowledge that the doors had been broken into and left open; that the building was located in a high crime area that multiple arrests for criminal offenses had been made in the area; and that there had occurred within the area several “car break-ins and thefts” were all inferences from which the jury could conclude that the City should have reasonably anticipated that its negligent maintenance of this building would likely contribute to the general field of danger actually encountered by the plaintiff, though her ultimate injury was precipitated through the agency of an intervening third party.

3. The Public Interest in the Proposed Solution. I think the public interest served by permitting the issue of proximate cause to be submitted for the jury’s determination under the circumstances of this case is self evident. The determination of the City’s violation vel non of its statutory duty to use due care in the maintenance of its building is a proper function of the jury as representing current moral and societal values of the community.

The Sullivan Court, though antedating the injection in our cases of the term “reasonably foreseeable,” stated the rule:

“[A] person guilty of negligence should be held responsible for all the consequences which a prudent and experienced man, fully acquainted with all the circumstances which in fact existed, whether they could have been ascertained by reasonable diligence or not, would at the time of the negligent act, have thought reasonably possible to follow, if they had occurred to his mind.” Sullivan v. Alabama Power Co., 246 Ala. 262, 20 So.2d 224 (1945).

Comment a to 2nd Restatement, Torts, § 453, observes:

“[I]f the negligent character of the third person’s intervening act or the reasonable foreseeability of its being done (see § 447 and 338) is a factor in determining whether the intervening act relieves the actor from liability for his antecedent negligence, and under the undisputed facts there is room for reasonable difference of opinion as to whether such act was negligent or foreseeable, the question should be left to the jury.”

The Guy Court stated:

“Unless the evidence is entirely free from doubt or adverse inference, the question is one for the jury; and whether or not plaintiff’s injury is the proximate result of defendant’s negligence is ordinarily a question for the jury.”

Mr. Justice Bloodworth, speaking for four justices (three dissenting and one concurring) in City of Mobile v. Havard, 289 Ala. 532, 268 So.2d 805 (1972), articulated the Alabama rule as follows:

“As the majority opinion suggests, our rule is that when the facts presented are such that reasonable men must draw the same conclusion, the question of proximate cause is one of law for the court to determine. Giles v. Gardner, 287 Ala. 166, 169, 249 So.2d 824 (1971). I cannot agree that reasonable men must draw the same conclusion from the facts as to proximate cause here. It is apparent the trial judge reached the same conclusion as I espouse. The dissenting justices are each of the opinion the issue was for the jury.”

IV. Conclusion

I emphasize, by way of conclusion, that our prerogatives as an appellate court include neither fact-finding nor review of conclusions of fact implicit in the jury verdict. Rather, our scope of review is a narrow one. Though we were to disagree with the jury’s findings of negligence and proximate cause, we must nonetheless affirm the instant appeal unless the trial Court erred in submitting these issues to the jury.

In order to reverse the trial Court for not ruling, as a matter of law, that the criminal act constituted an independent intervening cause, we must hold, then, that reasonable minds, drawing upon all reasonable inferences from the evidence, could reach but a single conclusion: that, given the City’s negligent maintenance of the building, the negligent act did not flow in a natural; unbroken chain, reasonably foreseen, to constitute a contributing cause to the ultimate injury.

My careful consideration of each of the factors traditionally employed in such cases by the common law courts throughout this country, as well as our own case law, constrains me to reject such a holding. Indeed, I believe one reasonable inference which the jury was free to draw from the evidence is that, but for the City’s negligence, Ms. Largay’s ultimate injury, under the circumstances could not have been eventuated for lack of available and appropriate means for the perpetration of the criminal assault. Undoubtedly, the jury so concluded; and the trial Court upheld its conclusion by denying the City’s motion for a new trial.

Therefore, I would hold that the trial Court ruled correctly in submitting to the jury, under appropriate instructions, the issues of municipal immunity, duty, breach of duty, and proximate cause.

      . For an Alabama case predicating its holding of trespass on the alleged trespasser’s voluntary act of being upon the premises, see Scog-gins v. Atlantic & G. P. Cement Co., 179 Ala. 213, 60 So. 175 (1912).

      . For other Alabama cases dealing with the general subject of intervening cause, each of which held that the issue of proximate cause was properly submitted or due to be submitted to the jury, see F. W. Woolworth v. Kirby, 293 Ala. 248, 302 So.2d 67 (1974), and Lawson v. General Tel. Co. of Alabama, 289 Ala. 283, 267 So.2d 132 (1972).

      . This is not to say that reparation to victims of crime is beyond the legislative policymaking prerogative. Indeed, the National Conference of Commissioners on Uniform State Laws has adopted a proposed statute, “Uniform Crime Victims Reparations Act” (1973).

      . For a case holding lack of proximate cause as a matter of law on the ground of vagueness of duty, where the plaintiff claimed breach of duty to furnish police protection against a landowner, see Goldberg v. Housing Authority of Newark, 38 N.J. 578, 186 A.2d 291, 10 A.L.R.3d 595 (1962).

      . The reference to § 448 is to make clear that the term “negligence” is intended to also include a criminal act.

      . This first Havard case was reversed on second appeal and, as previously noted, the majority opinion in second Havard was authored by Mr. Justice Faulkner, following substantially the original dissent of Mr. Justice Bloodworth quoted from above.