text:
    Louis GREGORY et al., Plaintiffs-Appellees, v. Sam GUARISCO, Defendant-Appellant, and Travelers Indemnity Co. et al., Defendants-Appellees.
    No. 12671.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 1, 1975.

      Hal V. Lyons, Shreveport, for appellant.
    Mayer, Smith & Roberts, by Jerry Kir-cus, Shreveport, Blanchard, Walker, O’Quin & Roberts, by Wilton H. Williams, Jr., Shreveport, for appellees.
    Before BOLIN, HALL and DENNIS, JJ-
   DENNIS, Judge.

On February 27, 1972, at about 10:00 A. M., a fire occurred in the restaurant operated by Sam Guarisco at 3164 North Market Street, Shreveport, Louisiana. The fire originated in a deep fat fryer owned by Guarisco and caused $564.75 in damages to the building which was leased to Guarisco by Louis M. Gregory.

This suit was instituted by Gregory and his fire insurer against Guarisco and his public liability insurer to cover the cost of repairs to the premises. Guarisco denied any negligence in causing the fire and filed a third-party action against his own insurance agent for failure to issue the proper insurance to cover the loss in the event of his liability. The trial court rendered judgment for the plaintiffs against Guarisco but rejected the demands of the plaintiffs and the third party demand of Guarisco against his public liability insurer. Guarisco appealed urging error only as to the judgment on the main demand. Plaintiffs did not appeal, and therefore the judgment below rejecting all demands against Guarisco’s public liability insurer is final and cannot be disturbed on appeal.

The deep fat fryer, which was over &i/¡ years old at the time of the fire, consisted of a receptacle holding vegetable oil in which electric heating elements were submerged. Guarisco had not performed any regular maintenance on the fryer, and had replaced heating elements on prior occasions. The cooker had a thermostat to control the temperature of the oil, but it had never given trouble or been worked on before.

Guarisco was not present at the restaurant on either the night before or the morning of the fire, having left it in the charge of two employees. However, he testified that they would normally cook at a temperature of 350 degrees or less. He stated that he was not positive but that he thought the flash point of the cooking oil was 500 degrees. The normal procedure followed by him and his employees, according to Guarisco, was to set the thermostat at 200 degrees to melt the grease before beginning to cook in the morning. They again turned the temperature down to 200 degrees 30 minutes before quitting time in the evening so that the grease could be safely poured from the receptacle. At night the thermostat was left on 200 degrees but the fryer was completely turned off. In the mornings, since the thermostat was usually still set for 200 degrees from the night before, the fryer was simply switched on in order to warm up. According to Guarisco, the temperature settings on the thermostat ranged from zero to 450 degrees.

The two restaurant employees were not called as witnesses, and Guarisco testified that he did not know where they were. He was certain, however, that the deep fat fryer was under their supervision and con-

trol at the time of the fire. The only explanation for the fire given by Guarisco was his own testimony that the thermostat had gone out of control and allowed the fryer to overheat the cooking oil. But this testimony amounted to no more than an assertion or opinion on his part. He did not state how he knew the thermostat had caused the fire. He did not relate any evi-dentiary facts to support such a determination and merely stated this as an unsupported conclusion.

It is a well-recognized rule of law followed in this state that those who use or handle dangerous agencies, substances or instrumentalities such as explosives, electricity, firearms, combustibles and fireworks, which might endanger persons or property, are held to a high degree or extraordinary degree of care. Waters v. Southern Farm Bureau Casualty Ins. Co., 212 So.2d 487 (La.App., 3d Cir. 1968); Prescott v. Central Contracting Co., 162 La. 885, 111 So. 269 (1927); Normand v. Normand, 65 So.2d 914 (La.App., 2d Cir. 1953) ; Holland v. St. Paul Mercury Ins. Co., 135 So.2d 145 (La.App., 1st Cir. 1961).

The deep fat fryer, which was capable of boiling combustible cooking oil at a temperature of 450 degrees, was a dangerous instrumentality, and the trial court found that Guarisco and his employees failed to use or handle it with a high degree or an extraordinary degree of care, after applying the doctrine of res ipsa loquitur to the circumstantial evidence presented.

In Boudreaux v. American Insurance Co., 262 La. 721, 264 So.2d 621 (1972) the Louisiana Supreme Court, after a thorough review of the jurisprudence, applied the doctrine of res ipsa loquitur in a similar factual situation involving a fire in a restaurant :

“In this respect, the principle of ‘res ipsa loquitur’ (the thing speaks for itself) sometimes comes into play as a rule of circumstantial evidence, whereby negligence is inferred on the part of a defendant because the facts indicate this to be the more probable cause of injury in the absence of other as-plausible explanation by witnesses found credible. Pilie v. National Food Stores of Louisiana, 245 La. 276, 158 So.2d 162 (1963); Larkin v. State Farm Mutual Auto. Ins. Co., 233 La. 544, 97 So.2d 389 (1957); Malone, Res Ipsa Loquitur and Proof by Inference, 4 La.L.Rev. 70 (1941); Comment, 25 La.L.Rev. 748 (1965). Thus, by this principle where properly applied, the circumstantial evidence indicates that the injury was caused by some negligence on the part of the defendant, without necessarily proving just what negligent act caused the injury.” Id. p. 636
“King v. King, 253 La. 270, 217 So.2d 395, 397 (1968); 'Res ipsa loquitur is a rule of circumstantial evidence. Its applicability is determined at the conclusion of the trial. The rule applies when the facts shown suggest the negligence of the defendant as the most plausible explanation of the accident.’ (Italics ours.)
“In addition to describing this principle of circumstantial evidence, the term ‘res ipsa loquitur’ is also sometimes used to describe the burden to prove themselves not negligent required of those using dangerous substances or engaging in dangerous activities which injure others or of those under some special relationship of care to others injured through their activity. In this type of situation, the effect of the doctrine is not only to supply an element of proof but also to shift the burden onto such type of defendant to explain or pay. Malone, Res Ipsa Loquitur, 4 La.L.Rev. 70, 95-99, 103 (1941); Prosser on Torts, pp. 213, 223, 228-30 (4th ed. 1971).” Id. at fn. 6

Applying these principles to the present controversy, the evidence as a whole shows that negligence of Guarisco or his employes was the most plausible or likely cause of the fire. We cannot as reasonably attribute the fire to another cause.

There was no actual evidence, other than Guarisco’s mere assertion or opinion, that the thermostat or the deep fat fryer had malfunctioned. Guarisco did not say, or produce witnesses who could say, what was wrong with the thermostat or even testify that it had been tested after the fire. If the thermostat was defective, surely this could have been established with probative evidence. The employees who were present at the time and in the best position to explain the cause of the fire were not produced as witnesses. According to Guarisco, the cooking oil would ignite at approximately 500 degrees, and the highest temperature setting on the fryer was 450 degrees. There was no evidence that the fryer was capable of heating oil over 450 degrees or that it had ever caused a conflagration in the past. No one other than Guarisco’s employees is shown to have had access to the cooker at any time on the evening and morning before the fire occurred. The kitchen was in a commercial restaurant, and therefore was likely to have accumulated hazardous quantities of grease and other combustible substances. Guarisco had established no regular procedure for the maintenance or calibration of the 81/2 year old thermostat. Nor had he instructed his employees to keep watch over the deep fat fryer during the boiling of the combustible cooking oil.

Guarisco, as a person using a dangerous substance and a dangerous instrumentality, was required to prove himself and his employees free of negligence. In this type situation the effect of the doctrine of res ipsa loquitur is not only to supply an element of proof but also to shift the burden of explaining the cause of the fire onto the defendant. Boudreaux v. American Ins. Co., supra, at fn. 6. In view of the circumstantial evidence arrayed against the defendant, we find Guarisco’s bare assertion that the fire was caused by a defective thermostat, without more, to be inadequate to sustain his burden of explaining the cause of the fire.

For the reasons assigned, the judgment of the district court is affirmed, and the costs of the appeal are to be borne by the appellant.

Affirmed.


source: Caselaw Access Project

author: STOULIG, Judge.

license: Public Domain

text:
    Louis Adam MURRAY v. Albert BIERRIA, d/b/a United States Salvage Company of New Orleans.
    No. 7025.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 9, 1975.

      Law Offices of Steven R. Plotkin, James C. Azcona, New Orleans, for plaintiff-appellant.
    Jones, Walker, Waechter, Poitevent, Carrere & Denegre, Donald O. Collins, New Orleans, for Orleans Parish School Bd., defendant-appellee.
    Before LEMMON, STOULIG and SCHOTT, JJ.
   STOULIG, Judge.

Plaintiff, Louis Adam Murray, on March 10, 1970, filed a workmen’s compensation suit against Albert Bierria, doing business as United States Salvage Company of New Orleans. By a supplemental and amended petition filed on June 25, 1970, the Orleans Parish School Board was made a codefendant. Bierria was never served with a copy of the petition and citation, therefore issue was never joined with respect to this defendant.

After the Orleans Parish School Board filed an answer, this case was set for trial on the merits seven times and was continued on five occasions at the request of the plaintiff and twice on the School Board’s motion. On June 10, 1974, plaintiff failed to appear for the trial on the merits (the seventh setting) and the trial court rendered judgment dismissing plaintiff’s suit against Albert Bierria, doing business as United States Salvage Company of New Orleans. Plaintiff has appealed.

For the want of service of the petition and citation, issue was never joined between the plaintiff and Bierria. It therefore follows that the trial judge could not dismiss the suit against this defendant for plaintiff’s failure to appear and proceed to trial, when no trial could be held under the posture of the proceedings. A judgment of dismissal as to Bierria could only have been rendered upon plaintiff’s voluntary motion to dismiss its claim against this defendant. Unless issue is joined either by responsive pleadings or the entry of a preliminary default (which has the legal effect of a general denial), there are no controverted facts or conclusions of law to be adjudicated by trial, and plaintiff’s petition cannot be dismissed for his failure to appear and proceed to the proof of his claim. Accordingly, C.C.P. art. 1672, authorizing the involuntary dismissal of an action when the plaintiff fails to appear on the day set for trial, cannot be invoked as to plaintiff’s suit against Bierria.

It is apparent the trial judge intended to dismiss the claim against the Orleans Parish School Board, but the judgment inadvertently named the wrong defendant. Under C.C.P. art. 1951 a trial judge may amend a judgment “(1) to alter the phraseology of the judgment, but not the substance; or (2) to correct errors of calculation.” An appellate court also has the power to correct certain obvious errors not called to the attention of the trial judge. See Comment (d) under C.C.P. art. 1951.

In this case, the error being one of substance, we cannot, under the authority of C.C.P. art. 1951, substitute a codefend-ant in place of the defendant named in the judgment.

For these reasons, the judgment appealed from is annulled and this matter is remanded for further proceedings in the trial court; assessment of costs to await final disposition of the matter.

Judgment anulled; remanded.

      . The court had no authority to set the matter for trial against Bierria until he filed an answer. C.O.P. art. 1571.


author: BEER, Judge.

text:
    Succession of Joseph Rogers JUSTIN, Sr.
    No. 7017.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 9, 1975.
    Charles A. Imbbornone, New Orleans, for plaintiffs-appellees.
    Richard C. Buckman, New Orleans, for de f endant-appellant.
    Before SAMUEL, GULOTTA and BEER, JJ.
   BEER, Judge.

On November 13, 1970 Joseph Rogers Justin, Sr. died intestate at his residence in the Parish of Orleans. He was survived by his widow, Sarah Pierre Justin, appellant herein, and by appellees, his three major children of a previous marriage. There were no children of the marriage of decedent and Sarah Pierre Justin.

The three children filed a petition to be placed in possession of the succession of the decedent under Articles 3001 and 3002 of the Code of Civil Procedure and on January 31, 1974 the district court signed a judgment of possession recognizing Sarah Pierre Justin as surviving spouse in community and recognizing appellees as the children and the sole heirs of decedent. From this judgment, Sarah Pierre Justin appeals. We reverse.

Article 3002 provides in pertinent part:

“The allegations of the petition for possession shall be verified by the affidavit of at least one of the petitioners. There shall be filed in the record of the succession proceedings written evidence of the acceptance of the community of the surviving widow if she did not execute this affidavit.”

The record contains no written evidence of Sarah Pierre Justin’s acceptance of the community.

The word “shall” as used in Article 3002, supra, is mandatory as defined by Article 5053 of the Code of Civil Procedure. The lack of written evidence of appellant’s acceptance of the community in the absence of her filing an affidavit verifying the petition for possession is fatal to the judgment rendered in these proceedings. The comments of the redactors spe7 cifically provides: “This article requires some evidence of the acceptance of the community by the surviving widow in those instances where she did not execute any verifying affidavit to the petition for possession.”

By written stipulation of attorneys for both parties, four letters written by Sarah Justin’s attorney relating to settlement of the estate were filed into the record. Upon review of these letters, we conclude they have no probative effect on the issue before us and do not provide any basis upon which to avoid the application of the clear language of Article 3002.

The judgment is annulled and set aside. Costs of this appeal to be paid by appel-lees.

Annulled and set aside.


author: PATTERSON, Justice.

text:
    CADILLAC CORPORATION, Defendant-Appellant, v. C. R. MOORE, Plaintiff-Appellee.
    No. 48149.
    Supreme Court of Mississippi.
    Aug. 18, 1975.

      Goldman & Goldman, Thomas W. Goldman, Jr., Dennis Goldman, Meridian, Miss., for defendant-appellant.
    Laurel G. Weir, Philadelphia, Barnett & Brooks, Carthage, for plaintiff-appellee.
    Before PATTERSON, INZER and WALKER, JJ.
   PATTERSON, Justice.

Cadillac Corporation appeals from a judgment of $40,000 obtained against it by C. R. Moore in the Circuit Court of Leake County. The award to C. R.- Moore was for injuries to his person and property caused by an explosion in the mobile home he had purchased from Cadillac Corporation. The declaration sought compensation through' strict liability in tort or common law negligence. We affirm with suggestion of remittitur.

On September 17, 1970, C. R. Moore purchased a mobile home from Cadillac Corporation, a domestic corporation engaged in the manufacture and sale of such items. Weber Pharis, president of Cadillac Corporation, acted as the salesman of this unit. The home contained a new Duo-Therm heater installed by Cadillac which had purchased it from a" reliable furnace manufacturer.

After sale, Cadillac transported the home from Meridian to Leake County and placed it upon the plaintiff’s house site. Jimmy Sikes, an employee of Hydratane Gas Company, connected the trailer’s Duo-Therm gas heater to its source of fuel, a butane tank located on the premises. After this, Sikes ignited the pilot light and burner. He then advised the plaintiff, who had requested him to make the gas connections, that the heater was not functioning properly because the flame of the burner was too high and the plaintiff should get someone from the seller’s concern to check it.

The uncontradicted testimony discloses that on numerous occasions the plaintiff and his wife called the Cadillac Corporation and complained to Pharis that the heater was malfunctioning and importuned him to correct it. Finally, when Pharis would no longer answer their calls, they drove to his office in Meridian and personally advised him the heater did not function properly, relating that the blower would first come on and when the burner ignited, there would be a blaze and rumble of such intensity that it vibrated the whole mobile home.

Shortly thereafter, apparently in response to the last importuning, a serviceman by the name of Carmichael came to the home, adjusted the heater thermostat on the wall and advised the plaintiff the heater was functioning properly, to use it. The plaintiff’s wife testified that subsequent to Carmichael’s service call the heater continued to malfunction. She repeatedly informed Cadillac Corporation of this trouble and Pharis assured her the heater was safe, to go ahead and use it.

The heater was used in the condition described for the remainder of the winter and early spring of 1972 when, with the coming of warm weather, the pilot light was disengaged.

On October 17, 1972, an employee of Hydratane Gas Company reignited the pilot light at the request of plaintiff’s wife. The employee stated the burner did not come on at that time because the weather was too warm for the thermostatic control to activate it. The following day the heater exploded. The explosion and following fire destroyed the mobile home, an adjoining shed and their contents. The plaintiff was injured and escaped the home by wrapping himself in a mattress to avoid the flames in making his exit.

There is no direct evidence as to the cause of the explosion. The testimony adduced by the plaintiff in establishing his case by circumstantial evidence follows:

1. There was no other gas appliance in the home.

2. The heater was constructed to use either natural or LP (liquefied petroleum) gas.

3. Its proper function was dependent upon jets appropriate for the type of fuel consumed.

4.The heater was found after the explosion literally blown “inside out.”

Jimmy Sikes, engaged in the gas business and who the trial court concluded was an expert, testified that the jets were too large for the use of propane gas and in his opinion this probably caused the explosion. After the testimony of several intervening witnesses, he was recalled by the plaintiff, and after considerable difficulty by plaintiff’s attorney in framing a hypothetical question, Sikes again gave his opinion concerning the explosion:

Q. Answer the question : have I gone over all you’d need to know in order to form an opinion as to what caused the explosion ?
A. Yes, sir, I could give an opinion, my opinion, on it.
Q. All right, now what would be your opinion ?
******
A. Well, in my opinion with the furnace doing as it was, more than likely from the extreme heat from the burner burning too high you caused the control of your furnace to malfunction, opening, up, shoot too much gas and too much pressure through whenever it came on; other words, it just let it open up — your thermostat woulda had no control over it.

Cadillac Corporation, the only defendant, disclaimed liability by denying there was any defect in the trailer home it had manufactured and by maintaining it had properly installed the heater. It denied liability by way of defect in the heater, if any there was, since the heater was manufactured by the Coleman Company, a reliable manufacturer, and merely purchased by it for installation.

Appellant denied any negligence arising from its advising the purchasers that the heater was functioning properly and to go ahead and use it, again contending that the responsibility arising from the heater was that of the manufacturer, not a party to the suit, rather than the defendant who installed it.

In support of the last premise Cadillac maintains through the testimony of Elmer Sharp, its manager, that when the home was delivered to the purchaser, there was attached to the heater a yellow tag advising “if anything was wrong with it go get in touch with Mr. Harold Carmichael in Meridian and showed him his phone number down at the bottom of the yellow tag.” Sharp, the only defense witness, also testified that he did not know who paid Carmichael for his visit to plaintiff’s home to repair the heater.

The issue, according to Cadillac, is whether it exercised ordinary care in making an inspection of the furnace and in making repairs and advising the purchaser of its safety for use. It insists that a decision should rest on “(1) the relationship that existed between the appellant, as installer of the furnace, Duo-Therm, as manufacturer of the furnace, and Harold Carmichael, Inc., the company performing service work for the manufacturer and in particular, work on the furnace in question, along with (2) the specific actions taken by appellant.” From these premises the appellant first argues that products liability, strict liability in tort, does not apply in this case. We agree, if for no other reason the plaintiff did not obtain any instruction under this theory.

The only instructions on strict liability submitted to the jury were those requested by the defendant which correctly set forth, as we view them, its theory of defense to strict liability in tort. While there can be no doubt that State Stove Manufacturing Co. v. Hodges, 189 So.2d 113 (Miss.1966), holds that a suit for strict liability in tort is not exclusive and permits liability upon the alternative ground of negligence, where it can be proved; nevertheless, the first alternative was not pursued nor submitted to the jury on a strict liability theory, but rather on one of negligence. Compare Hamilton Fixture Co., Inc. v. Anderson, 285 So.2d 744 (Miss.1973). The issue of strict liability, though argued by the appellant, is not before us.

The assertions for reversal under (2), the specific actions taken by the appellant, are that the verdict is against the overwhelming weight of the evidence. This point necessitates a weighing of the evidence. The record establishes without contradiction that the defendant sold the mobile home to the plaintiff for a considerable sum and delivered it to his house site. Assuming, as we do, there was no defect in the manufacture of the heater, there nevertheless remains the testimony that the plaintiff advised the president of the defendant corporation shortly after his purchase that the heating unit was malfunctioning, detailing its aberrations, and “he said there was nothing wrong with the trailer, nothing wrong with the furnace and he turned around and walked away and wouldn’t talk to me.”

The evidence is also uncontradicted that other calls were made by the plaintiff to Pharis concerning the heater and that Harold Carmichael appeared thereafter to repair it and that he was not contacted or compensated for this service by the plaintiff.

These circumstances permit, in our opinion, only one conclusion, and that is Carmichael made the service call at the direction of the defendant and was therefore its servant and agent on the occasion. Moreover, after Carmichael’s repairs, the heater continued to malfunction, prompting additional calls to Pharis which gained only his assurance that the heater was safe and to go ahead and use it.

We conclude these factors established a vendor/purchaser relationship between the parties of some significance. It was sufficient for the defendant to warrant the mobile home to the purchaser for one year and to dispatch its agent to repair the heater within this period. More importantly, it was great enough for the defendant to thereafter give its assurance to the plaintiff that the heater was safe for use.

In our opinion the relationship was sufficient in law to impose upon the defendant a duty of reasonable inspection and repair to the property sold by it in order to supply the heater in a condition safe for its intended use. J. C. Penney Co. v. Morris, 173 Miss. 710, 163 So. 124 (1935), and D’Antoni v. Albritton, 156 Miss. 758, 126 So. 836 (1930). We further conclude that the duty imposed by law could not be cast aside or terminated by the mere assertion that the heater was manufactured by another.

In J. C. Penney Co., supra, we applied the rule that a vendor of a chattel made by a third person which is bought as safe for use in reliance upon the vendor’s profession of competence and care is subject to liability for bodily harm caused by the vendor’s failure to exercise reasonable competence and care to supply the chattel in a condition safe for use. See also Pate Auto Co. v. Westbrook Elevator Co., 142 Miss. 419, 107 So. 552 (1926).

The cases of McManus v. Temple, 195 So.2d 830 (Miss.1967), Federal Compress & Warehouse Co. v. Swilley, 252 Miss. 103, 171 So.2d 333 (1965), and D’Antoni v. Albritton, 156 Miss. 758, 126 So. 836 (1930), though considering questions of negligence growing out of business relations other than vendor/purchaser, nevertheless announced a principle which coincides with the duty imposed upon a vendor of property. Each states that the act imposing liability must be of such character, by way of commission or omission, that the actor should reasonably anticipate that some injury to another will probably result therefrom. The rule might be stated differently, that fault on the part of a defendant so as to render him liable is to be found in action or nonaction, accompanied by knowledge, actual or implied, of the probable result of his conduct. This theory is stated in Prosser, Law of Torts, section 95, page 632 (4th Ed.1971) as follows :

The seller’s negligence may take a number of forms. It may consist of a misrepresentation of the character of the goods, or of their fitness for a particular use. It may consist of a failure to disclose to the buyer facts of which the seller has knowledge which make the goods dangerous for the buyer’s purpose. . . . [Citing J. C. Penney Co., supra.]

Restatement (Second) of Torts, section 401 (1965), points out that a vendor of a chattel manufactured by a third person who knows or has reason to know that the chattel is, or is likely to be, dangerous when used by a person to whom it is delivered, is subject to liability for bodily harm caused thereby if he fails to exercise reasonable care to inform him of the likelihood of danger or to otherwise protect him against it.

In applying these principles to this case we again note that the defendant sold the mobile home containing the heater to the plaintiff. The defendant knew, or should have known, that the heater was constructed to burn either liquid petroleum or natural gas. It also knew, or should have known, that it was unsafe for its intended purpose unless the proper jets were installed for the type of fuel used. It had knowledge by direct communication from the plaintiff that the heater was not functioning properly and undertook its repair through its agent Carmichael. Unfortunately, the repair extended only to a thermostat and did not include an inspection of the heating unit. Whether the agent was advised of the details of the heater’s performance and overlooked checking the heater, or whether Pharis neglected to advise him of its unusual functioning, the burner igniting with such force that it vibrated the home, is of no moment since either was, or both were, negligence. The details of the heater’s performance which were related to Pharis, the president of defendant corporation, were surely indicative of the presence of excessive gas at the time of ignition of the burner and should have alerted the defendant as a reasonable manufacturer and vendor that an inspection of the heater was necessary for its proper performance and the safety of the plaintiff and property. Carmichael’s failure to inspect, which undoubtedly would have led to the right choice of installing proper jets, was compounded thereafter by the defendant when it was notified that the heater had not been repaired and plaintiff was assured by Pharis that it was safe for use when he knew, or should have known, that its continued operation was inherently dangerous.

We are of the opinion the jury did not err in finding from the sufficiency of evidence that the actions of the appellant were negligent and were the proximate cause of the plaintiff’s injuries. Although it is true, as defendant asserts, that the plaintiff did not directly prove the precise cause of the explosion, it is likewise true that negligence may be proved by circumstantial evidence where the circumstances are such as to remove the case from the realm of conjecture and place it within the field of legitimate inference. Brunt v. Chicago Mill & Lbr. Co., 243 Miss. 607, 139 So.2d 380 (1962), and the cases therein cited. The method of establishing fact which is dictated by available evidence, once accomplished, has no significance for reversing a case.

It is next contended that the court erred in granting plaintiff’s Instructions Nos. 6 and 9, which we do not portray for brevity. These instructions are inarticulately drawn and certainly No. 9 is verbose and to a degree confusing, but when considered with the other instructions, we are unable to say that they contained error of such proportion that the cause should be reversed.

The appellant argues that the court erred in permitting Sikes to testify from an improper hypothetical question propounded by the plaintiff over the objection of the defendant. We have herein-above observed that the hypothetical question was posed after considerable difficulty by the plaintiff's attorney in framing it. However, the lower court has much discretion in permitting or rejecting a hypothetical question, particularly as to whether it encompasses the facts put in evidence by the witnesses. We are unable to conclude that the court abused its discretion in permitting Sikes, the expert, to state his opinion as to the cause of the explosion. Providence Washington Ins. Co. v. Weaver, 242 Miss. 141, 133 So.2d 635 (1961). Moreover, this witness had been previously interrogated as to the cause of the explosion and had given his answer without objection of the defendant, diminishing, we think, the effect of the appellant’s argument that the hypothetical was improper.

The appellant’s argument that the damages are excessive has caused us much concern. An award for the purchase money of the trailer home is not before us, having been withdrawn by an amendment to the declaration. Our concern is that the plaintiff’s evidence directed to his loss of income is inadequate, confusing and unsupported by any record of the appellee’s business of chicken production. The difficulty arises from the plaintiff’s general evidence that “before the fire I made around fourteen, anywhere from fourteen, fifteen thousand dollars,” which he later qualified by stating that the chicken business was in his wife’s name and that she earned the money from it with his aid. His assistance was then qualified by his testimony that he was disabled much of the time that the loss of income purportedly occurred. The last statement was again qualified by the plaintiff’s statement that he supposed he and his wife “carry fifty-fifty load” of the business. He then conjectured, as we view it, “and then this past year, when chickens went up we would have made — cleared— say, $4,000 instead of the $2,000, and this year it has also gone higher.” Following this surmise the plaintiff conjectured that since the explosion and due to his physical injury he had lost standing with the company for whom he produced chickens and in this posture it was difficult for him to obtain another contract, and this augmented loss of income,

These comments are made to point out the lack of evidence, or the confusion therein, as to the plaintiff’s loss of income, yet throughout the testimony there is a reference to a loss of $12,000, $13,000 or $14,000 a year which we believe was likely to have improperly influenced the jury in reaching its verdict of $40,000.

The record reflects sufficient evidence to support a verdict for pain and suffering and for the loss of household and other personal property. In the aggregate, however, and conceding the difficulty in measuring pain and suffering, we conclude from a review of many of our cases on damages that this judgment should be reduced in the sum of $10,000, and a remit-titur in that amount is hereby offered the plaintiff. If he accepts the option of re-mittitur, the case will be affirmed for $30,000, or if he rejects, then it will be affirmed on liability and reversed and remanded for another trial on damages only.

Affirmed with remittitur.

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


text:
    John H. THORNTON v. J. C. DAMPIER et al.
    No. 48357.
    Supreme Court of Mississippi.
    Oct. 13, 1975.
    Beach, Beach, Luckett & Hanbury, Jackson, for appellant.
    Daniel, Coker, Horton, Bell & Dukes, Donald V. Burch, Jackson, for appellees.
    Before RODGERS, P. J., and SUGG and BROOM, JJ.
   Affirmed.


text:
    Tom STREVEL v. PAT PATTERSON MOTOR SALES, INC.
    No. 48361.
    Supreme Court of Mississippi.
    Oct. 13, 1975.
    Johnny N. Tackett, Aberdeen, for appellant.
    Parker, Averill & Winston, Tupelo, for appellee.
    Before RODGERS, P. J., and SUGG and BROOM, JJ.
   Affirmed.


author: RODGERS, Presiding Justice:

text:
    Charles T. CLEMONS and Linda Clemons v. STATE of Mississippi.
    No. 48707.
    Supreme Court of Mississippi.
    Oct. 13, 1975.
    Buckley & Ford, Laurel, for appellants.
    A. F. Summer, Atty. Gen. by Pete J. Ca-j oleas, Sp. Asst. Atty. Gen., and Karen Gilfoy, Asst. Atty. Gen., Jackson, for ap-pellee.
    Before RODGERS, P. J., and SUGG and BROOM, JJ.
   RODGERS, Presiding Justice:

The appellants were charged in an indictment returned by the Grand Jury of the Circuit Court of the Second Judicial District of Jones County, Mississippi, for the crime of the unlawful possession of more than one (1) ounce of marijuana. They were convicted and each sentenced to serve a term of two and one-half (2i/£) years in the state penitentiary. They have appealed to this Court, but did not request, nor have they obtained, a transcript of the testimony for review. The appeal is based entirely upon a Special Bill of Exceptions to the arguments of the district attorney and county attorney. The trial judge approved and signed the bill of exceptions, but denied a new trial. The bill of exceptions is in the following language:

"SPECIAL BILL OF EXCEPTIONS”
Charles T. Clemons and Linda Clemons, the defendants in the above styled and numbered cause, by and through their attorney of record, and being aggreived [sic] as a result of the decisions, actions and rulings of this Court on October 3, 1972, during the final argument of this cause before the jury by the State’s attorney, respectfully submits and moves the Court to allow this Special Bill of Exceptions of matters and things occur-ing [sic] during the trial of this cause not otherwise of record, to-wit:
I.
During the State’s concluding argument by Hon. Robert Sullivan, County Prosecuting Attorney, State’s Exhibits 1 & 2, A through K, were on the bar directly in front of the jury box and without a few feet of the jury, and in plain view of the jury. Mr. Sullivan placed his hand on those exhibits, patted them and said to the jury, ‘This is the ■ stuff that cause people to drown little babies.’ ‘This is the stuff that causes people to jump off buildings.’ ‘This [is] the stuff that causes people to lose their minds.’ ‘This is the stuff that causes people to kill themselves.’ Objection was duly made by counsel for the defendants and sustained by the Court, and the Court admonished the jury to disregard the remarks. The Defendants then moved for a mistrial and the Court overruled that motion and the Court then granted the defendants leave to file a Special Bill of Exceptions to the ruling of the Court on the motion for a mistrial.
II.
During the State’s concluding argument by Mr. William Harold Odom, district attorney, Mr. Odom placed his hands on State’s Exhibits 1 & 2, A through K, the exhibits being on the bar immediately in front of the jury and in their plain view, and patted the exhibits and said: ‘The law enforcement officers, the Grand Jury and the district and county attorney have done their job; now, it is your turn to clean up this County. I’ve got a child: You’ve got grand children and you must do something about this mess and you have got a chance to do something about it here. If you convict, the word will get out and the people in Chicago and New York will get the word and go where the picking is easy. That’s enough dope to supply a rock festival! That is enough dope to drive half the children in Jones County, crazy. That is enough dope to cause women to jump off buildings and drown their babies in bath tubs.’ The defendants objected three times during the course of that part of the argument and the objections were sustained, but Mr. Odom, during the course of the objections raised his voice even louder and continued to argue, ignoring the attempts of the defendant to interpose objections, and ignoring the rulings of the Court, until counsel for the defendants raised his voice to a much higher level. The Court then again sustained the objections and directed the jury as follows: ‘The jury will ignore those remarks.’ The defendant then moved the Court for a mistrial and the motion was overruled by the Court. The defendant then moved . the Court to direct the district attorney to refrain from continuing to address the jury while an objection or motion were being made. That motion was overruled by the Court. At all times when the above was transpiring the district attorney was arguing to the jury and Court in a very loud voice.
III.
Also during the final argument by the district attorney, while refering [sic] to one of the State’s instructions, the district attorney said to the jury: ‘The Court does not tell you that you have to know the defendants are guilty before you can find them guilty, and you do not have to know they are guilty before you can find them guilty.’ The defendant objected to such argument and the Court sustained the objection. However, while the attorney was attempting to address the Court, and while the Court was making the ruling sustaining the objection, the district attorney continued to address the jury and the Court in a loud voice, saying, ‘Well, you Honor, the jury cannot know whether or not they are guilty or not — that is the law — they don’t have to know they are guilty.’ The defendant then moved the Court to direct the jury to ignore the latter remarks and direct the district attorney to stop arguing while an objection and ruling was being made. That motion was overruled by the Court. The defendant then moved for a mistrial and it was also overruled by the Court.
IV.
During the concluding argument by the attorney for the defendants, counsel for the defendants attempted to argue to the jury that the State was attempting to conceal evidence of the innocence of the defendants by failing to call Howard Thomas, a co-defendant, as a witness and granting him immunity in return for his testimony and by not also trying his case first. Objection was made by the State and sustained by the Court. However, on the State’s final argument, the district attorney stated: ‘Counsel for the defendants talked to you about Howard Thomas.’ ‘Well I want to tell that he has already been tended to.’ ‘He will be going up yonder in a little while.’ The defendants objected and the Court overruled the objection, stating that counsel for the defendants had initially injected that subject into the trial.
V.
Also, during the State’s concluding argument, the district attorney argued as follows: ‘You know what has been happening in this community. All of you have read or heard about it.’ T don’t know about you but I don’t want our little children to grow up with their minds ruined by dope.’ ‘I will try the ones responsible until the last one is in the pen.’ ‘Birds of a feather flock together. Look at them out there.’ The district attorney then stepped over and pointed to some people in the Courtroom and said: ‘Look at them out there.’ ‘They are lined up out there waiting on their turn to be tried.’ Counsel for the defendants then objected and the Court sustained the objection and admonished the district attorney to refrain from such remarks and to not repeat them. However, during the course of the stating of the objection by the defendants and the ruling of the Court the district attorney was facing the jury and pointing toward the defendants and their counsel and continuing to argue in a loud voice and said, ‘Look at them. When you stick them they holler. When you get to gurting [sic] them they holler.’ The defendants objected to the latter remarks of the district attorney, as the district attorney continued to argue to the jury in a loud voice, and the Court overruled the objection. The defendants then moved the Court for a mistrial and the motion was overruled.
VI.
To all the argument of the attorneys for the State of Mississippi, as heretofore set forth, the defendants requested that the Court allow the defendants to reserve the right to make and present a Special Bill of Exceptions to such argument and objections and the rulings of the Court thereon, and the Court, in each instance, granted unto the defendants the right to so except.” (Original emphasis)

We have set out in full the bill of exceptions, because we feel that this Court should give some additional attention to the conduct of attorneys, particularly the prosecuting attorneys in their arguments to the jury.

The purpose of the closing argument before a jury is to enlighten the jury. It is the duty of the district attorney to fairly sum up and point out the points presented by the state on which the prosecution contends a verdict of guilty is proper. Welch v. State, 114 Miss. 708, 75 So. 548 (1917). On the other hand, it is the constitutional right of the accused to be heard by himself or counsel. It has been said that:

“The right of argument contemplates liberal freedom of speech and range of discussion confined only to bounds of logic and reason; and if counsel’s argument is within the limits of proper debate it is immaterial whether it is sound or unsound, or whether he employs wit, invective, and illustration therein. Moreover, figurative speech is legitimate if there is evidence on which it may be founded. Exaggerated statements and hasty observations are often made in the heat of debate, which, although not legitimate, are generally disregarded by the court, because in its opinion they are harmless. There are, however, certain well-established limits beyond which counsel is forbidden to go; he must confine himself to the facts introduced in evidence and to the fair and reasonable deductions and conclusions to be drawn therefrom, and to the application of the law, as given by the court, to the facts.
Subject to these limitations, the prosecuting attorney may with perfect propriety appeal to the jury with all the power, force, and persuasiveness which his learning, skill, and experience enable him to command, and of this character of argument accused may not complain even though he feels that his conviction may be traceable more directly to the argument of the prosecuting attorney than to the facts proved. Similarly, defense counsel is entitled freely to argue all questions properly within the issues of the case.” 23A C.J.S. Criminal Law § 1090, at 128-29 (1961).

This Court said in Cavanah v. State, 56 Miss. 299 (1879):

“Undoubtedly, there is a limit to the latitude to be allowed to counsel in addressing a jury, and it is the duty of the court to interfere to prevent an abuse of the privilege of counsel, to the perversion of justice, by misstating facts or commenting on facts not in evidence. A large discretion in this matter must be exercised by the circuit judge. It is a very delicate duty; for he must be cautious not unduly to abridge the liberty of counsel, and, in restraining him within proper limits, must not deny him the full liberty of discharging his important duties, in enforcing his views of the law and the evidence. ‘His illustrations may be as various as are the resources of his genius; his argumentation as full and profound as his learning can make it; and he may, if he will, give play to his wit, or wing to his imagination.’
Where the privilege of counsel had been abused to such an extent as to induce the belief of probable injustice as its result, and the court below had not properly interposed, we would not hesitate to apply the corrective; but in this case we see no ground for interference.” 56 Miss, at 309-10.

So long as counsel in his address to the jury keeps fairly within the evidence and the issues involved, wide latitude of discussion is allowed; but, when he departs entirely from the evidence in his argument, or makes statements intended solely to excite the passions or prejudices of the jury, or makes inflammatory and damaging statements of fact not found in the evidence, the trial judge should intervene to prevent an unfair argument. Moreover, this Court will not withhold a reversal where such statements are so inflammatory [in the judgment of this Court] as to influence the verdict of the jury, and thus prevent a fair trial.

In the instant case, the prosecuting attorneys did not exceed proper argument to point out the danger of the marijuana, although the activity of these officers was obviously reprehensible conduct. There is no reversible error on this point, particularly since the trial judge admonished the jury to disregard the statement of the attorney.

On the other hand, notice that the bill of exceptions [which we accept as true] indicates that the district attorney argued in a loud tone of voice with the judge. District attorneys are state district officers as well as attorneys of the court, and as such are bound by the rules and orders of the trial judge. The trial judge should be vigilant to require proper respect for the dignity of the law and the courts of this state. If the trial judge is unfair or tyrannical, this may be corrected by appeal. In every case the district attorney must act in a courteous manner with proper deference to the trial judge. In the present case, the district attorney said to the jury, “The court does not tell you that you have to know the defendants are guilty, and you do not have to know they are guilty before you can find them guilty.”

In the first place, it is the duty of the trial judge to instruct the jury and not the district attorney. Pearson v. State, 254 Miss. 275, 179 So.2d 792 (1965); Mississippi Code Annotated Section 99-17-35 (1972).

In Ivey v. State, 206 Miss. 734, 40 So.2d 609 (1949), this Court pointed out that the trial court should have sustained an objection to a legal instruction verbally given by the district attorney to the jury. In that case, however, the verdict of the jury was affirmed. Nevertheless, the Court said: “In this state it is the province of the trial judge to announce the law to the jury.” 206 Miss. at 755, 40 So.2d at 614. See also Harris v. State, 207 Miss. 241, 42 So.2d 183 (1949); 23A C.J.S. Criminal Law § 1110, at 217 (1961).

This instruction has been condemned by this Court so often that it seems unnecessary to continue to cite authority on this issue. See some of the cases listed in Kent v. State, 241 So.2d 657 (Miss.1970).

Now we find that although the trial judges have ceased to use this instruction, the district attorney in this case not only used the instruction verbally in his argument, he argued with the trial judge when the judge sustained an objection to the argument.

In the case of Pearson v. State, 254 Miss. 275, 179 So.2d 792 (1965), where the trial judge permitted the district attorney to give to the jury a verbal instruction, this Court said: “For the error, growing out of this incident in the closing argument, the cause must be and it is, reversed and remanded for a new trial.” 254 Miss. at 293, 179 So.2d at 800.

We have no evidence before us as to whether or not the appellants are guilty. The court signed a special bill of exceptions showing the inexcusable conduct of the prosecuting attorney. This leaves us no alternative except to reverse this case and remand the same for a new trial, because it is evident that the defendants did not receive a fair trial.

Reversed and remanded.

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

      . Holifield v. State, 275 So.2d 851 (Miss.1973) ; Terrell v. State, 262 So.2d 179 (Miss.1972) ; Catholic Diocese of Natchez-Jackson v. Jaguith, 224 So.2d 216 (Miss.1969) ; Pitts v. State, 211 Miss. 268, 51 So.2d 448 (1951) ; 23A C.J.S. Criminal Law § 1095, at 156 (1961).


author: SMITH, Justice.

text:
    STATE FARM FIRE AND CASUALTY COMPANY v. Edith WIGHTWICK.
    No. 48308.
    Supreme Court of Mississippi.
    Sept. 29, 1975.
    Rehearing Denied Nov. 3, 1975.
    Wise, Carter, Child, Steen & Caraway, William M. Dalehite, Jr., Jackson, for appellant.
    Buckley & Ford, Laurel, for appellee.
    Before.GILLESPIE, SMITH and ROBERTSON, JJ.
   SMITH, Justice.

State Farm Fire and Casualty Company appeals from a judgment of the Circuit Court of Jones County, affirming a judgment rendered against it by the County Court of that county, in favor of Edith Wightwick, for $5,000. There is no cross-appeal.

The suit involves the “uninsured motorist clause” of a policy of automobile liability insurance issued by State Farm to its named insured, Mrs. Cleo Barlow.

It appears that in December, 1969, appel-lee, Edith Wightwick, a granddaughter of Mrs. Barlow, who was staying with Mrs. Barlow at the time, was sent by Mrs. Barlow to “get something for supper.” On the way, Wightwick, driving Mrs. Barlow’s car, was involved in a collision with the automobile of one Hiram Williamson. State Farm was not notified of this occurrence.

An action in tort, in which neither State Farm nor Mrs. Barlow were involved or named, was filed by Wightwick against Williamson claiming damages as a result of the collision. A copy of the summons issued for Williamson in that case was, according to the clerk, mailed to State Farm. Williamson failed to defend the action and judgment was rendered against him by default. On writ of inquiry, Wightwick’s damages were fixed at $5,000.

Later on, Wightwick brought the present suit against State Farm to recover the amount of the judgment under Mrs. Barlow’s policy, alleging that Williamson had been an “uninsured motorist” within the meaning of the uninsured motorist clause of the policy and of Mississippi Code Annotated section 83-11-101 (1972).

When the case against State Farm came on for trial, there was introduced on behalf of Wightwick, over objection, the default judgment she had obtained against Williamson. Also, placed on the stand in her behalf was Mrs. Barlow, who identified her State Farm policy and testified that her granddaughter had been “living with” her at the time of the collision and was using the Barlow car with Mrs. Barlow’s permission. Williamson was called on behalf of Wightwick and testified only that he had been uninsured and that he did not consider the collision to have been his fault. Wightwick neither testified nor appeared.

No proof of any kind was made or offered by Wightwick as to the facts or circumstances of the collision between Wight-wick and Williamson or as to the nature and extent of Wightwick’s injuries, or that she had, in fact, been injured at all.

At the conclusion of this abbreviated hearing, the trial court denied the motion of State Farm to direct the jury to find peremptorily in its favor and sustained a similar motion on behalf of Wightwick for a verdict against State Farm for $5,000 under the uninsured motorist clause in Mrs. Barlow’s policy. This was affirmed by the circuit court on appeal.

State Farm contends that in the present suit it was incumbent upon Wightwick to allege and prove, among other things, that Williamson not only had been an uninsured motorist but that he had been guilty of negligence which proximately caused or contributed to the collision, and also' to show by some evidence that she had been injured as the result of the collision. In the last two respects, at least, Wightwick utterly failed to make any attempt to meet the burden which rested upon her. Mississippi Code Annotated section 83-11-105 (1972), provides, among other things:

In the event the owner or operator of the uninsured vehicle causing injury or death is known and action is brought against said owner or operator by the named insured as defined by said policy, then a copy of the process served upon the owner or operator shall also be served by the circuit clerk mailing, registered mail, a copy of the process to the insurance company issuing the policy providing the uninsured motorist coverage as prescribed by law. (Emphasis added).

It is to be noted that Mrs. Barlow, not Wightwick, was the “named insured” in State Farm’s policy and that both Wight-wick and Williamson were strangers to the contract, unknown to State Farm. Any coverage of Wightwick existed only by virtue of the claim that she had been a member of Mrs. Barlow’s household and was using the car with Mrs. Barlow’s consent. Not a single word of testimony appears in the record as to any of the facts or circumstances of the collision between Wightwick and Williamson. Not a single word of testimony or other evidence appears in the record that Wightwick sustained any injury whatever as the result of the collision.

State Farm was not a party to the litigation between Wightwick and Williamson and was in no way bound by the judgment recovered by Wightwick against Williamson. State Farm had no connection with either party and had no standing to intervene on behalf of either. Among other things the uninsured motorist clause in Mrs. Barlow’s policy provides:

For the purposes of this coverage, determination as to whether the insured or such representative is legally entitled to recover' such damages, and if so the amount thereof, shall be made by agreement between the insured or such representative and the company or, if they fail to agree and the insured so demands, by arbitration; but if the insured elects not to arbitrate, the liability of the company shall be determined only in an action against the company and no judgment against any person or organization alleged to be legally responsible for such damages shall be conclusive of the issues of liability of such person or organization or of the amount of damages to which the insured is legally entitled unless such judgment is entered pursuant to an action prosecuted by the insured with the written consent of the company, in any action against the company, the company may require the insured to join such person or organization as a party defendant. (Emphasis added).

A similar provision was upheld in Saint Paul Fire & Marine Insurance Co. v. Arnold, 254 So.2d 872 (Miss.1971), wherein the Court said:

Saint Paul, not having consented to the action against Geter, is not bound thereby, and Arnold can only prove his case against Saint Paul in a direct action against it.

(254 So.2d at 874).

No contention is made that consent of State Farm to the suit against Williamson was ever requested or given.

The judgment recovered in the case brought by Wightwick against Williamson, to which State Farm was not a party, was not res judicata against State Farm and in no way bound State Farm under the circumstances of this case.

Although the suit by Wightwick against Williamson and the recovery of a default judgment against him did not bar or prejudice Wightwick’s right to bring the present suit against State Farm, it was essential to due process that she carry the burden which rested upon her to prove, in the action against State Farm, that (1) Williamson had been an uninsured motorist ; (2) Wightwick was a member of Mrs. Barlow’s household and was driving the Barlow car with Mrs. Barlow’s consent; (3)while driving the Barlow car she was involved in a collision with the automobile of Williamson as the proximate result of negligence on Williamson’s part and (4) she sustained an injury as the result. Wightwick’s right to recover against State Farm depended upon proof that the collision had proximately resulted from negligence on Williamson’s part and that she had sustained an injury. As to both of these items the record is as silent as a tomb.

The trial court was in error in refusing to instruct the jury peremptorily to return a verdict for State Farm. The judgment appealed from must, therefore, be reversed and judgment entered here for State Farm Fire and Casualty Company.

Reversed and judgment entered for State Farm Fire and Casualty Company.

RODGERS, P. J., and PATTERSON, INZER, SUGG, WALKER and BROOM, JJ., concur.


author: BROOM, Justice. SMITH, Justice

text:
    Roosevelt JORDAN v. STATE of Mississippi.
    No. 48535.
    Supreme Court of Mississippi.
    Oct. 6, 1975.
    Rehearing Denied Nov. 3, 1975.
    Pigford, Hendricks & Fields, Meridian, for appellant.
    A. F. Summer, Atty. Gen., by Vera Ma-del Speakes, Special Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, SMITH and BROOM, JJ.
   BROOM, Justice.

Conviction of manslaughter and a ten year penitentiary sentence resulted from Jordan’s trial on a murder indictment. Trial was in the Circuit Court of Clarke County. We affirm.

The controlling issue is whether or not a written confession given by Jordan, an illiterate man, was properly qualified as voluntary and admissible as ruled by the trial court.

Jordan was convicted of slaying Roxie Twille (his girl friend), on December 8, 1973. The proof shows that Roxie died as a result of a brutal beating. Jordan admitted striking her but said that her severe head wound resulted from her accidentally falling into a door facing.

During the evening of December 7, 1973, Jordan and Roxie, with others, had been drinking at her house and went to Waynesboro to obtain some more drinks. After they arrived back at Roxie’s house, Jordan left around midnight and returned later. When he arrived back at the house, Jordan apparently thought he heard someone run out the back door. After inquiring about who it was that he heard leaving, Jordan went to Roxie’s bedroom and there is apparently where he inflicted a beating upon Roxie with a piece of wood. She died several hours later, after first refusing hospitalization. The cause of death was a brain injury.

Prior to the trial in chief, the court heard Jordan’s motion to suppress and exclude his written confession taken by Sheriff Hutchinson. At the hearing, the sheriff testified that he took Jordan’s confession which was written down in longhand by the sheriff’s wife and then typed by her. According to the sheriff’s testimony, Jordan confessed after being informed of his rights. Sheriff Hutchinson further testified that the confession was made freely and voluntarily in his office where the sheriff’s wife was present. Deputy Williams was present part of the time but both he and the sheriff were in and out, answering the telephone, during the time the confession was taken and signed. At the hearing on the motion, the state rested after the sheriff testified, whereupon Jordan (the appellant) testified and stated that he did make the statement but that some of the words in it were not his words. His version was that he signed it to be “obedient” and he denied the sheriff’s testimony that the sheriff read it to him before he signed it. Neither the sheriff’s wife nor Deputy Williams was called by either side as a witness at the hearing of the motion to suppress.

We are of the opinion that the trial court correctly refused to suppress and exclude the confession. Jordan did not contend that he was beaten, threatened, coerced or induced to confess. By the sheriff, the state made out a prima facie case of voluntariness on the part of Jordan in making the confession. Upon the posture of the case, the state was required to do no more nor to offer any other witness because neither Jordan nor anyone else said that the confession was involuntary. His statement that he signed to be obedient was not sufficient to require any further proof by the state in this regard. Agee v. State, 185 So.2d 671 (Miss.1966), held that all officers present at a time when the accused made a confession should have been put on the stand to establish voluntariness. The difference in this case and Agee is that here we find no evidence that the confession resulted from violence, threats of violence, coercion, or any improper inducement. Therefore, the state was not under any obligation to put on the stand all persons present (whether officers or not) since voluntariness was not put in issue by the accused. The testimony of the state was sufficient upon the circumstances revealed by the record and was not contrary ;o the rules laid down by this Court in Agee, supra, or Younger v. State, 301 So.2d 300 (Miss.1974), or Stevens v. State, 228 So.2d 888 (Miss.1969).

The question raised by Jordan’s testimony that he did not utter all of the words in the confession is not availing to his argument on the admissibility of the confession. Whether the confession as introduced was accurate went to the weight and credibility of the testimony and was a jury issue.

Other issues were raised on the appeal, but none of them merit discussion.

Affirmed.

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

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

SMITH, PATTERSON and INZER, JJ., dissent.

SMITH, Justice

(dissenting):

Jordan could neither réad nor write. Upon the hearing of a motion to suppress a statement attributed to him, the State offered the sheriff. The sheriff testified that he and a deputy had been “in and out” of the sheriff’s office during the taking of the statement but that his (the sheriff’s) wife, who took down the statement and typed it up, was the only person, other than Jordan, who had been present throughout. The status of the sheriff’s wife, under the circumstances, and for the time being, was that of an officer engaged, with other officers, in taking an inculpato-ry statement from a prisoner. When the statement was offered, an objection was interposed on the ground that the statement was not the voluntary statement of Jordan.

The sheriff testified that he had read the statement to Jordan. Jordan denied this. It is undisputed that Jordan is unable to read or write (except to make a sort of scrawl which he calls his signature) so that the contents of the writing could have been known to him only if it had been read to him. Counsel for Jordan specifically requested the trial court, before admitting the statement, to require the State to call the other persons present when the statement was alleged to have been given and this request was denied. A written statement can be voluntary only if the person to whom it is attributed knows its contents. In this case, Jordan, a man unable to read or write, testified that, contrary to the sheriff’s testimony, the statement had not been read to him. Whether this is true or not the trial court should have required the prosecution to put on the sheriff’s wife, at least, she having been the only person present throughout the entire episode which produced the statement. Without her testimony it cannot be known what went on when the sheriff and his deputy were “out.” As it was, the introduction of the statement had the effect of requiring Jordan to take the stand as a witness in his own behalf. The evidence of Jordan’s guilt, without his own testimony, although quite strong, was in its material aspects circumstantial. The admission of the statement attributed to him lead to Jordan’s taking the stand and to his giving direct testimony as to the beating which resulted in the death of the victim. Evidence supporting the verdict of guilty of manslaughter, as stated, is strong, nevertheless, no man on trial for a capital offense (or for any offense) should be saddled with the contents of a statement that he could not read and which, he swore, was never read to him. Under the facts, the statement here hardly can be termed a “voluntary” statement of Jordan.

PATTERSON and INZER, JJ., join in this dissent.


author: INZER, Justice.

text:
    CITY OF PASCAGOULA, a Municipal Corporation v. R. C. RAYBURN et ux. Katie Rayburn.
    No. 48153.
    Supreme Court of Mississippi.
    Aug. 18, 1975.

      Bryan, Nelson, Allen & Schroeder, Robert H. Walker, Pascagoula, for appellant.
    Alfred Lee Felder, Pascagoula, for ap-pellees.
    Before PATTERSON, INZER and WALKER, JJ.
   INZER, Justice.

This is an appeal by the City of Pasca-goula from a judgment of the Circuit Court of Jackson County awarding R. C. Rayburn and his wife $6,000 for damages to their home due to the overflow of the drainage ditch near their home. We reverse and render.

R. C. Rayburn and his wife brought this suit against the City of Pascagoula seeking to recover for damages to their home and furnishings due to the alleged negligence of the city in failing to properly maintain a drainage ditch near their home. It was charged that the city had allowed the ditch to become obstructed with weeds, logs, and other debris and that although the Ray-burns had complained to the city about the condition, the city either ignored their complaints or performed only minimal work which was not sufficient to properly maintain the ditch. The suit further charged that on May 7, 1972, the drainage ditch overflowed, and their home received about fourteen inches of water damaging their house and furnishings. It was charged that the damage resulted from the failure of the city to use ordinary and reasonable care to maintain the ditch, and to remove any obstructions that an inspection would have revealed. It further charged that the city was negligent in approving land changes that increased the volume of water to be handled by the ditch, and that it was aware that this increased volume caused the ditch to overflow.

The city answered and admitted that the Rayburns did appear before the city council and complain relative to the ditch, but denied that it ignored their complaints or took minimal action. It also denied that it failed to reasonably inspect the ditch and remove obstructions therefrom, or that it failed to use reasonable care to provide adequate drainage.

The city affirmatively plead that it was not negligent in the construction or maintenance of the drain and that the drain was constructed and maintained in the customary and usual accepted manner for municipalities in that area. It further charged that the overflow of the existing drainage ditch was brought about by the action of the elements in producing an unprecedented rainfall in the nature of a flash flood which the city could not reasonably foresee. It also alleged that it exercised reasonable and ordinary care in the maintenance of the ditch and had no knowledge of any obstructions in the ditch prior to the unprecedented rainfall.

A trial resulted in a jury verdict for the Rayburns in the amount of $8,000. On motion for a new trial, the trial court ordered a new trial unless a remittitur of $2,000 was entered. The remittitur was entered and a judgment was rendered for $6,000; hence this appeal by the city.

The principal error assigned is that the trial court erred in refusing to grant the request of the city for a peremptory instruction at the close of all the evidence or in failing to grant a new trial because the verdict of the jury was contrary to the overwhelming weight of the evidence.

The evidence established that Mr. and Mrs. Rayburn acquired their home on Tu-pelo Avenue in the City of Pascagoula in February 1969. The house had been built about three years before they bought it. Tupelo Avenue runs generally in an east-west direction and is a cul-de-sac on the west side of Hospital Road. There are three houses on the north side of the avenue and one on the south side. The Ray-burns live in the middle house on the north side of the avenue. At the end of the avenue is a major drainage ditch which has been maintained by the City of Pascagoula for many years. The ditch is a natural drain and is some 8,500 to 9,000 feet in length, and runs generally in a southeastern direction from Highway 90 to the shores of the Mississippi Sound.

After the Rayburns purchased their home, they appeared before the city council on three occasions complaining that the city was not properly maintaining the drain as the debris in the ditch was obstructing the flow of the water and in times of heavy rain the ditch was overflowing and coming dangerously near to their home. They also complained to the city manager on other occasions. The last complaint made to the city council was in September 1971.

On Sunday night, May 7, 1972, the Ray-burns, as was their custom, retired about 6:30 p.m. and were awakened about 9:15 p.m. by a telephone call from their next door neighbor who asked if they had any water in their house. Upon arising they found that the water was about ankle deep on the floor of their bedroom. The water continued to rise until it reached the depth of about eight inches in the bedroom. The water remained in the house until the next day damaging the house and the furniture.

A few days after the water receded, Mr. Rayburn made an inspection of the drain and took pictures showing debris in the ditch at that time.

The evidence on behalf of the city established that after each complaint by the Rayburns the city caused the ditch to be inspected and any obstructions found therein to be removed.

After the last complaint in September 1971, the city caused the entire ditch to be cleaned from one end to the other. This work was completed in February 1972. After completion the ditch was inspected from one end to the other and found to be clear and free of obstructions. After that time, the city received no further complaint relative to the condition of the ditch and had no knowledge of any obstruction in the ditch before the flood on May 7, 1972.

It is undisputed that 11.55 inches of rain fell in the city from midnight Saturday night until midnight Sunday May 7, 1972. It is also undisputed that 8.38 inches of rain fell in the two hour period between 8 :- 00 and 10:00 p.m. Mr. Kenneth Wilson, an engineer and flood specialist, testified on behalf of the city and he classified the 8.38 inches of rain in the two hour period as an unprecedented rain. Mr. Wilson made a study relative to the records of rainfall in the City of Pascagoula and found no record of a rainfall as heavy as the one in this two hour period. Based upon his experience and these records, he was of the opinion that the expectancy of such a rainfall in a two hour period would be in excess of 100 years.

Other witnesses testified that they had never seen as heavy a rainfall in Pasca-goula. It is undisputed that practically the entire city was flooded. Many homes were inundated and people had to be evacuated from them. Streets and bridges were washed out, and even telephone poles were seen floating down the street. To complicate the situation, the 8.38 inches of rainfall fell during a high tide which, of course, restricted the drainage of the water to some extent.

There is no doubt that the Ray-burns suffered damage to their home and its furnishings as a result of the overflow of the drainage ditch near their home. The question is was the city liable for such damages under the facts of this case. A city has the duty to use ordinary, reasonable care to maintain its drains. It also has the duty to remove any obstructions from the drains within a reasonable time after it has notice, either actual or constructive, of the obstruction. This duty exists whether the debris causing the obstruction is placed in the drain by someone other than a city employee. Thus, where it is shown that the city has notice that obstructions are accumulating in a drain, the city has the duty to use reasonable care under the circumstances to prevent flood damage which may result from its failure to properly maintain such drain. The city is required to make provisions for and guard against such floods as may be reasonably expected. This expectancy is to be judged from such floods as have previously occurred. However, the city is not liable for damages which could not be guarded against by the exercise of reasonable care, such as unprecedented rain. City of Vicksburg v. Porterfield, 164 Miss. 581, 145 So. 355 (1933).

The only testimony that tended in any way to contradict the fact that the rainfall in question was unprecedented was the testimony of the Rayburns and the witness Henry Thompson. Mr. and Mrs. Rayburn testified that they had seen other rainfall in the City of Pascagoula as heavy as that which fell on this occasion. However, both admitted that they were asleep until after nine o’clock and from that time on they were busy trying to get their furniture up out of the water. Their testimony revealed that they had little or no opportunity to observe the rainfall during the two hour period. Mr. Thompson, a neighbor of the Rayburns, testified that he remembered a rainfall in 1966 or 1967 that he thought was as heavy as the one on May 7, 1972. However, he admitted after the rainfall on May 7 everyone was speaking of it as being a record rainfall and unprecedented in that area.

The evidence is also overwhelming that after each complaint by the Rayburns the city took action on the complaint. After the complaint in September 1971, the city caused the ditch in question to be cleaned from one end to the other. The work was completed in February 1972 and at that time the ditch was inspected and free of debris. After that time the city received no complaint relative to the ditch until after the flood on May 7, 1972.

The record in this case clearly establishes that this is not a case where the city has neglected its drainage ditches. It has a full time crew of eight to ten men who work full-time on drainage. It also has standby, crews who assist when problems develop. In addition, after every heavy rainfall, a crew goes around the city, inspects the ditches and removes debris to keep the water flowing in the drain. The record is also clear that the city had no knowledge or notice of any obstruction in the ditch in question prior to the rainfall on May 7, 1972.

After a careful review of the evidence in this case, we are of the opinion that the trial court was in error in refusing to grant the peremptory instruction requested by the city at the close of all the testimony. It is clear that the rainfall on this occasion was unprecedented. The testimony tending to refute this fact has very little, if any, probative value, and at the most amounts to a mere scintilla. To hold the city liable under the facts of this case would simply make the city an insurer of damage caused by flood water.

For the reasons stated, this case is reversed and judgment entered here in favor of the city.

Reversed and rendered.

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


text:
    Verna D. SCOTT v. David Robert DAY.
    No. 48364.
    Supreme Court of Mississippi.
    Oct. 13, 1975.
    Chill, Chill & Dove, Jackson, for appellant.
    Wilkins, Ellington & Latham, L. C. James, Jackson, for appellee.
    Before RODGERS, P. J., and PATTERSON and BROOM, JJ.
   Affirmed.


text:
    Ellen McBRIDE et al. v. MIRAMAR VILLAGE, INC., et al.
    No. 48346.
    Supreme Court of Mississippi.
    Oct. 6, 1975.
    Rehearing Denied Nov. 3, 1975.
    James Sideris, Gulfport, for appellants.
    Floyd & Floyd, Bryant & Stennis, Gulf-port, for appellees.
    Before GILLESFIE, C. J., and SMITH and ROBERTSON, JJ.
   Affirmed.


author: BROOM, Justice.

text:
    Gilbert B. PFISTERER v. John D. NOBLE and Cities Service Oil Company.
    No. 48191.
    Supreme Court of Mississippi.
    Aug. 18, 1975.
    E. R. Arrington, Hazlehurst, for appellant.
    Armstrong & Hoffman, Hazlehurst, W. Roger Jones, Jackson, for appellee.
    Before RODGERS, ROBERTSON and BROOM, JJ.
   BROOM, Justice.

A cloud suit was brought by appellant, Pfisterer, against appellees, Noble and Cities Service, in the Chancery Court of Copiah County, Mississippi. Appellees’ demurrer was sustained by the chancellor and appellant (declining to plead further) was granted leave to bring this appeal. We affirm.

The chief issue before us is whether a provision of a warranty deed excepted all of the oil, gas and minerals. It reads:

This conveyance and warranty herein are made subject to prior reservations and conveyances of all of the oil, gas and other minerals in, on and under said lands.

Source of appellant’s title is a deed (containing the quoted language) dated March 24, 1969, from one Magee and wife, who on that date owned on undivided one-eighth (i/s) interest in the oil, gas and other minerals pertaining to the land conveyed unto appellant. Magee had previously sold all the oil, gas and minerals, but ■ repurchased one-eighth (/&) prior to March 24, 1969. Appellant contends that the deed conveyed to him the grantor’s undivided one-eighth oil, gas and mineral interest in the lands conveyed to him by the warranty deed. In sustaining demurrers of the appellees, the chancellor in effect ruled that all oil, gas and minerals were excepted by the deed in question and, therefore, the appellant acquired title only to the surface of the land. Subsequent to the Magee deed to appellant, Magee conveyed his mineral interest in the land to appellee Noble, who executed an oil, gas and mineral lease to the other appellee, Cities Service. The Magees were not parties to the suit.

In construing a written instrument, the task of courts is to ascertain the intent of the parties from the four corners of the instrument. Rogers v. Morgan, 250 Miss. 9, 164 So.2d 480 (1964); Ewing, Reservations and Exceptions of Minerals in Mississippi Conveyancing, 39 M.L.J. 39, 42 (1967). Courts look at the instrument under consideration as a whole and determine what the parties intended by giving a fair consideration to the entire instrument and all words used in it. Welborn v. Henry, 252 So.2d 779 (Miss.1971). When a written instrument is clear, definite, explicit, harmonious in all its provisions, and is free from ambiguity, a court in construing it will look solely to the language used in the instrument itself. In such a case a court will give effect to all parts of the instrument as written. Sumter Lbr. Co., Inc. v. Skipper, 183 Miss. 595, 184 So. 296; sugg. of error overruled 183 Miss. 595, 184 So. 835 (1938).

Pertinent is Wilson v. Gerard, 213 Miss. 177, 56 So.2d 471 (1952), where the court was confronted with a deed which stated, “subject to one-half interest in mineral and oil rights as conveyed to William Henderson.” Henderson, who was named in the controversial clause there was non-existent, and, regardless of that, the court held that the mineral and oil rights remained in the grantor and did not vest in the grantee.

In Oldham v. Fortner, 221 Miss. 732, 74 So.2d 824 (1954), the court in interpreting a deed providing “except all minerals and mineral rights, heretofore sold and conveyed ...” held that such a provision was an exception. See also, 26 C.J.S. Deeds § 140(1), at 1010 (1956), where it was stated: “Property which is excepted is not granted; it does not pass to the grantee, but, when not already outstanding in another, necessarily remains with the grantor.” See also, 23 Am.Jur.2d Deeds § 264, at 300-01 (1965).

We find no ambiguity in the language before us for construction and therefore this case is not controlled by cases dealing with ambiguities. Payne v. Campbell, 250 Miss. 227, 164 So.2d 780 (1964) ; Salmen Brick & Lbr. Co. v. Williams, 210 Miss. 560, 50 So.2d 130 (1951); and Richardson v. Moore, 198 Miss. 741, 22 So.2d 494 (1945). The disputed language cannot logically be interpreted as a mere limitation of the Magees’ warranty as might be the case had it simply stated the warranty was subject to prior reservations, etc. Such a case is not before us because the language used significantly and clearly made two things: (1) the “conveyance”, and (2) the “warranty” subject to “prior reservations and conveyances of all” (emphasis added) oil, gas and minerals. Our conclusion is that the chancellor correctly decided that the language excepted all the mineral rights, rather than only such rights as were vested in parties other than appellant’s grantors, the Magees, at the time of the conveyance in question.

Affirmed.

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


author: PER CURIAM. OVERTON, Justice ENGLAND, Justice

text:
    R. R. WALDEN, as Tax Assessor of Hillsborough County, Florida, and J. Ed. Straughn, as Executive Director of the Department of Revenue, State of Florida, Petitioners-Appellants, v. The HERTZ CORPORATION, a Delaware Corporation, et al., Respondents-Appellees.
    Nos. 46283, 46328.
    Supreme Court of Florida.
    July 30, 1975.
    Rehearing Denied Nov. 4, 1975.
    Brooks P. Hoyt, of MacFarlane, Ferguson, Allison & Kelly, Tampa, and Robert L. Shevin, Atty. Gen., and Winifred L. Wentworth, Asst. Atty. Gen., for petitioners-appellants.
    Stewart C. Eggert, of Allen, Dell, Frank & Trinkle, and Paul B. Johnson of Gregory, Courts, Paniello, Johnson & Hayes, Tampa, for respondents-appellees.
    Stuart Simon, Dade County Atty., and R. A. Cuevas, Jr., Asst. Dade County Atty., for Dade County Taxing Authorities, amicus curiae.
    James M. Reed of Holland & Knight, Tampa, for Host International, Inc., ami-cus curiae.
   PER CURIAM.

This cause is before this Court on Direct Appeal from a decision of the District Court of Appeal, Second District, in Hertz Corporation v. Walden, reported at 299 So.2d 121 (Fla.App.1974).

The historical background, factual situation, and questions of law, and the decision sub judice appear in the opinion of the District Court of Appeal in this cause, and in the interest of brevity, will not be repeated here. We have heard oral argument, examined the record, and considered the briefs and are of the opinion that the Second District Court of Appeal correctly decided the case, and their opinion is therefore adopted as the decision of this Court.

Accordingly, the decision of the District Court is hereby,

Affirmed.

ADKINS, C. J., ROBERTS, J., and MORPHONIOS and TENCH, Circuit Judges, concur.

OVERTON, J., concurs specially with an opinion.

ENGLAND, J., dissents with an opinion, with which ALDERMAN, Circuit Judge, concurs.

OVERTON, Justice

(specially concurring).

I concur in the majority opinion. There is no dispute concerning the facts of the Hertz operation or use of its leased premises in the Tampa Airport. The only dispute is what those facts mean.

The tax assessor of Hillsborough County contends that the leasehold used by Hertz in the main terminal or landside building is taxable but that the leasehold use of the air lines is not taxable. Nothing is said of other incidental services at the airport, such as restaurants, newsstands, and the like. I cannot draw that distinction. A publicly funded airport facility should be treated as an entity, and the leaseholds for services incidental to its operation are either all exempt or. they are all taxable. I can more readily adopt the position of the amicus curiae, Dade County, that they are all taxable than I can the position of the appellant-tax assessor of Hillsborough County.

ENGLAND, Justice

(dissenting).

I dissent. The adopted decision of the majority has held that Article VII, Section 10 of the Florida Constitution does not require the taxation of leasehold interests conferred by governmental agencies, and that the taxability or exemption of such interests is determined by sequential reference to sections 196.001(2), 196.199(2) (a) and 196.012(5), Florida Statutes. My disagreement with the Court’s adopted decision is not based on these points of law, but rather on the scope of appellate review. The Court has found that the use of the so-called Outside Facility constitutes a public, as opposed to a nonpublic, purpose, and I do not believe this Court was free to make that determination.

In 1971 the legislature unequivocally expressed its intention to tax all leasehold interests in governmental property, other than those expressly exempted by statute. The exemption governing this case is narrowly limited to private lessees which serve or perform a “governmental, municipal or public purpose or function.” The determination of the purpose or function served by lessees in individual situations is necessarily left to the form of judicial resolution consistently characterized as fact-finding. This legislative relegation to the fact-finding processes of the judicial branch is apparent from the very language of the law, which contemplates that exemptions will result only where the lessee “is demonstrated to perform” the requisite function or service. (emphasis added)

The trial court’s findings of facts in this case should be accorded the same standard of appellate review as other fact questions brought to us for review. If the appropriate standard is applied, the decision of the Second District Court of Appeal must be reversed. That court, and now this Court by adopting that court’s opinion, merely disagrees with the trial court as to the result which should flow from the factual evidence. That is not an appellate court’s function.

ALDERMAN, Circuit Judge, concurs.

      . It is arguable that this provision of the Constitution is mandatory and self-executing. “Also see Section 10, Article VII, 1968 Florida Constitution, which requires taxation of leaseholds . . . .” Straughn. v. Camp, 293 So.2d 689, 695 (FIa.1974). Portions of the minutes of the Florida Constitutional Revision Commission tend to indicate that' the framers of Article VII, Section 10 expressly equated private leaseholds on governmental properties with “other privately owned property” (emphasis added) in order to prevent inferential exemptions based on exemptions for governmentally-owned property. The disposition of this ease which I would approve does not require a ruling on this question or on the other points of law raised on appeal.

      . Section 196.001(2), Fla.Stat., enacted as section 16 of chapter 71-133, Laws of Florida.

      . Sections 196.199(2) (a) and 196.012(5), Fla.Stat.

      . In Hillsborough County Aviation Auth. v. Walden, 210 So.2d 193, 196 (Fla.1968), the Court on review commented on the chancellor’s determination that seven business activities were predominantly private by saying:
      “We find no reason for disturbing the Circuit Court’s factual determination of the purpose in which' each lease falls.” (emphasis added).

        See also Comma Phi Chapter of Sigma Chi Bldg. Fund Corp. v. Dade County, 199 So.2d 717, 718 (Fla.1967) (“the question of whether or not property in a given case is exempt becomes one of fact.”)

      . Section 196.012(5), Fla.Stat. The trial court listed as one of twelve “findings of fact”, in a part of its order distinct from its four “conclusions of law”, that Hertz’ use of the Outside and the Remote Facilities “does not serve or perform a governmental, municipal or public purpose or function, as defined in Florida Statutes Chapter 196.012(5).”

      . “No authority needs to be cited for the proposition that this court is not entitled to substitute its judgment for that of the trial court on questions of fact . . . .” Goldfarb v. Robertson, 82 So.2d 504, 506 (Fla.1955).

      . There was, in the district court’s words, “substantial evidence” to support the trial court’s finding of fact as to Hertz’ predominantly private use of the Remote Facility. 299 So.2d at 125. Without concluding that the record was devoid of evidence for the trial court’s finding as to the Outside Facility, the district court merely felt that the evidence “leads us to the opposite conclusion.” Id.

      . Aside from my disagreement as to taxable status of this leasehold, I cannot reconcile the majority’s decision with the Constitution and the statutes in another respect. The total exemption conferred by the Court’s majority entirely neglects Article VII, Section 3(a), Fla.Const. and Section 196.192(2), Fla.Stat. Together those provisions preclude a total exemption of the Outside Facility and require some taxation of Hertz’ leasehold interest, computed on the respective proportion of the property not in “predominantly public” use.


text:
    ISLAND HOTEL COMPANY, LTD., etc. and Loew’s Bahamas Hotel, Ltd., etc., Petitioners, v. Renee FREISTAT and Rubin Freistat, Respondents.
    No. 45954.
    Supreme Court of Florida.
    April 25, 1975.
    Rehearing Denied Oct. 30, 1975.
   Certiorari denied.

ROBERTS, BOYD, McCAIN and ENGLAND, JJ., concur.

ADKINS, C. J., dissents.


text:
    Russell A. FIRESTONE, Jr., Petitioner, v. Myrna Odell FIRESTONE, Respondent.
    No. 46552.
    Supreme Court of Florida.
    May 9, 1975.
    Rehearing Denied Oct. 23, 1975.
   Certiorari denied. 302 So.2d 494.

ADKINS, C. J., and BOYD, OVER-TON and ENGLAND, JJ., concur.

ROBERTS, J., dissents.


text:
    Robert B. PUBLICKER, Petitioner, v. Barbara D. PUBLICKER, Respondent.
    No. 46841.
    Supreme Court of Florida.
    June 24, 1975.
    Rehearing Denied Oct. 16, 1975.
   Certiorari denied.

ADKINS, C. J., and ROBERTS, Mc-CAIN, OVERTON and ENGLAND, JJ., concur.


text:
    In re ESTATE of Floretta VAN HORNE, Deceased. Walter SHIKANY, Executor, Petitioner, v. John C. VAN HORNE and Richard Longabaugh, Respondents. John C. VAN HORNE, Petitioner, v. Walter SHIKANY and Richard Longabaugh, Respondents.
    Nos. 46568, 46874.
    Supreme Court of Florida.
    July 3, 1975.
    Rehearing Denied Oct. 15, 1975.
   Certiorari denied. 305 So.2d 46.

ADKINS, C. J., and BOYD, McCAIN, OVERTON and ENGLAND, JJ., concur.


text:
    ZUCKERMAN-VERNON CORP., a Florida Corporation, Petitioner, v. CITY OF MIRAMAR, etc., et al., Respondents.
    No. 46813.
    Supreme Court of Florida.
    July 10, 1975.
    Rehearing Denied Nov. 6, 1975.
   Certiorari denied. 306 So.2d 173.

ADKINS, C. J., and BOYD, McCAIN, OVERTON and ENGLAND, JJ., concur.


text:
    Constance C. NETTERVILLE et al., Petitioners, v. John Paul JENNE, Respondent.
    No. 47185.
    Supreme Court of Florida.
    July 11, 1975.
    Rehearing Denied Oct. 30, 1975.
   Certiorari denied. 306 So.2d 182.

ADKINS, C. J., and ROBERTS, BOYD and OVERTON, JJ., concur.

SUNDBERG, J., dissents.


text:
    CLIFFORD’S RESTAURANT, INC., etc., Petitioner, v. Gary SINGER, Respondent.
    No. 47317.
    Supreme Court of Florida.
    Aug. 21, 1975.
    Rehearing Denied Oct. 17, 1975.
   Certiorari denied. 311 So.2d 430.

ADKINS, C. J., and ROBERTS, BOYD, OVERTON and ENGLAND, JJ., concur.


text:
    Jesus FERNANDEZ and Allstate Insurance Company, an Illinois Corporation, Petitioners, v. Francisco AROCHA, Respondent.
    No. 47046.
    Supreme Court of Florida.
    Sept. 3, 1975.
    Rehearing Denied Oct. 23, 1975.
   Certiorari denied. 308 So.2d 45.

ADKINS, C. J., and ROBERTS, BOYD, OVERTON and ENGLAND, JJ., concur.


text:
    Wilmer DEAS, Petitioner, v. SUWANNEE VALLEY ELECTRIC COOPERATIVE et al., Respondents.
    No. 48000.
    Supreme Court of Florida.
    Sept. 11, 1975.
    Rehearing Denied Oct. 20, 1975.
   Certiorari dismissed sua sponte.


text:
    Ray TURNER, as principal of Palmetto High School, Dade County, Florida, and Florida High School Activities Association, Inc., etc., Petitioners, v. Harold C. KNECHT, Jr., etc., Respondent.
    No. 47266.
    Supreme Court of Florida.
    Sept. 15, 1975.
   Certiorari denied. 311 So.2d 430.

ADKINS, C. J., and ROBERTS, BOYD, OVERTON and ENGLAND, JJ., concur.


text:
    CENTRAL AIR CONDITIONING COMPANY et al., Petitioners, v. FULLERTON METAL COMPANY et al., Respondents.
    No. 46239.
    Supreme Court of Florida.
    Sept. 16, 1975.
   Certiorari dismissed.


text:
    AMERICAN EXPRESS, Petitioner, v. SEABOARD HOLDING, INC., et al., Respondents.
    No. 46733.
    Supreme Court of Florida.
    Sept. 16, 1975.
   Certiorari denied. 303 So.2d 399.

BOYD, OVERTON, ENGLAND and SUNDBERG, JJ., concur.

ADKINS, C. J., and ROBERTS, J., dissent.


text:
    Maurice MORRISSETTE, Petitioner, v. PUBLIC GAS COMPANY et al., Respondents.
    No. 45340.
    Supreme Court of Florida.
    Sept. 17, 1975.
   Appeal dismissed.


text:
    Robert LONG, Petitioner, v. STATE of Florida, Respondent.
    No. 47297.
    Supreme Court of Florida.
    Sept. 18, 1975.
   Petition dismissed.


text:
    STATE of Florida, Appellant, v. Harold WALLS et al., Appellees.
    No. 48005.
    Supreme Court of Florida.
    Sept. 19, 1975.
   Appeal dismissed.


text:
    STATE of Florida, Appellant, v. Calvin E. GLIDEWELL, Appellee.
    No. 47825.
    Supreme Court of Florida.
    Sept. 19, 1975.
   Counsels’ joint motion to temporarily relinquish jurisdiction is hereby granted and counsel is to notify this Court immediately upon disposition.


text:
    Rufus BANKS, Jr., Petitioner, v. STATE of Florida, Respondent.
    No. 47032.
    Supreme Court of Florida.
    Sept. 24, 1975.
   Certiorari denied. 308 So.2d 203.

BOYD, OVERTON, ENGLAND and SUNDBERG, JJ„ concur.

ADKINS, C. J., and ROBERTS, J., dissent.


text:
    BREVARD COUNTY BOARD OF PUBLIC INSTRUCTION et al., Petitioners, v. SPECIAL DISABILITY TRUST FUND et al., Respondents.
    No. 47051.
    Supreme Court of Florida.
    Sept. 24, 1975.
   Certiorari denied.

ROBERTS, BOYD, OVERTON and ENGLAND, JJ., concur.

ADKINS, C. J., dissents.


text:
    CROWN COLONY CLUB LIMITED, Petitioner, Cross-Respondent, v. Christl M. HONECKER, Respondent, Cross-Petitioner.
    No. 47044.
    Supreme Court of Florida.
    Sept. 24, 1975.
   Certiorari denied. 307 So.2d 889.

ADKINS, C. J., and ROBERTS, BOYD, OVERTON and SUNDBERG, JJ., concur.


text:
    George GARET, Petitioner, v. George J. JACUPKE et al., Respondents.
    No. 46714.
    Supreme Court of Florida.
    Sept. 24, 1975.
   Certiorari denied.

ROBERTS, OVERTON, ENGLAND and SUNDBERG, JJ., concur.

ADKINS, C. J., and BOYD, J., dissent.


text:
    STATE of Florida, Petitioner, v. Felix Glenn EASON, Respondent.
    No. 46906.
    Supreme Court of Florida.
    Sept. 24, 1975.
   Certiorari denied. 306 So.2d 615.

ROBERTS, Acting C. J., and BOYD, OVERTON, ENGLAND and SUND-BERG, JJ., concur.


text:
    STATE of Florida, Petitioner, v. Dusty R. SPENCER, Respondent.
    No. 48069.
    Supreme Court of Florida.
    Sept. 25, 1975.
   Certiorari dismissed sua sponte. 316 So.2d 615.


text:
    Grady R. VOLKERS, Petitioner, v. CONCRETE & METAL FORM ERECTORS, INC., et al., Respondents.
    No. 46713.
    Supreme Court of Florida.
    Sept. 25, 1975.
   Certiorari denied.

ROBERTS, BOYD, OVERTON, ENGLAND and SUNDBERG, JJ., concur.

ADKINS, C. J., dissents.


text:
    Melvin C. COLEMAN, as Sheriff, Orange County, Florida, Petitioner, v. Patrick Leigh ANDRESS, Respondent.
    No. 47830.
    Supreme Court of Florida.
    Sept. 29, 1975.
   Certiorari dismissed sua sponte. 320 So.2d 451.

ADKINS, C. J., and BOYD, OVER-TON, ENGLAND and SUNDBERG, JJ., concur.


text:
    Robert J. JONES, Petitioner, v. STATE of Florida, Respondent.
    No. 47971.
    Supreme Court of Florida.
    Sept. 29, 1975.
   Certiorari denied. 315 So.2d 260.

ADKINS, C. J., and ROBERTS, BOYD, OVERTON and ENGLAND, JJ., concur.


text:
    Johnnie ANDERSON, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 46827.
    Supreme Court of Florida.
    Sept. 29, 1975.
   Case dismissed. 306 So.2d 633.

ADKINS, C. J., and BOYD, OVER-TON, ENGLAND and SUNDBERG, JJ., concur.


text:
    CESSNA AIRCRAFT COMPANY, etc., Petitioner, v. G. Russell WARRICK, Administrator of the Estate of Barry Warrick, Deceased, Respondent.
    No. 46931.
    Supreme Court of Florida.
    Sept. 29, 1975.
   Certiorari denied. 308 So.2d 661.

ADKINS, C. J., and ROBERTS, OVERTON and SUNDBERG, JJ., concur.

BOYD, J., dissents.


text:
    In re ESTATE of Edward A. FREDERICKS, Deceased. Edward A. FREDERICKS, Jr., Petitioner, v. SHRINERS HOSPITALS FOR CRIPPLED CHILDREN, INC., et al., Respondents.
    No. 47341.
    Supreme Court of Florida.
    Sept. 29, 1975.
   Certiorari denied. 311 So.2d 376.

ADKINS, C. J., and ROBERTS, BOYD, OVERTON and ENGLAND, JJ., concur.


text:
    The FIRST NATIONAL BANK OF HOMESTEAD, etc., et al., Petitioners, v. Monroe LOSNER, Respondent.
    No. 47203.
    Supreme Court of Florida.
    Sept. 29, 1975.
   Certiorari denied. 308 So.2d 605.

ADKINS, C. J., and ROBERTS, BOYD, OVERTON and ENGLAND, JJ., concttr.


text:
    Melvin KOENIG, Petitioner, v. WATSCO, INC., a Florida Corporation, Respondent.
    No. 46512.
    Supreme Court of Florida.
    Sept. 29, 1975.
   Certiorari dismissed. 303 So.2d 711, 302 So.2d 220.

ADKINS, C. J., and ROBERTS, OVERTON, ENGLAND, SUNDBERG and HATCHETT, JJ., and SHOLTS, C. J., concur.


text:
    LEE COUNTY TRANSIT AUTHORITY, Petitioner, v. FLORIDA PUBLIC SERVICE COMMISSION, Respondent.
    No. 47271.
    Supreme Court of Florida.
    Sept. 29, 1975.
   Cause dismissed.


text:
    PANAMA REALTY, INC., etc., Petitioner, v. W. F. ROBISON, Jr., Respondent.
    No. 46858.
    Supreme Court of Florida.
    Sept. 29, 1975.
   Certiorari denied. 305 So.2d 34.

ADKINS, C. J., and ROBERTS, OVERTON and SUNDBERG, JJ., concur.

BOYD, J., dissents.


text:
    PIX OF AMERICA, INC., et al., Petitioners, v. Juan AZOR, and the Industrial Relations Commission, Respondents.
    No. 46977.
    Supreme Court of Florida.
    Sept. 30, 1975.
   Certiorari denied.

ADKINS, C. J., and ROBERTS, BOYD, OVERTON and SUNDBERG, JJ., concur.


text:
    TAMPA GENERAL HOSPITAL, DIVISION OF the HILLSBOROUGH COUNTY HOSPITAL AND WELFARE BOARD, Petitioner, v. Linda BRANTLEY and James Thomas Brantley, her husband, Respondents.
    No. 47924.
    Supreme Court of Florida.
    Sept. 30, 1975.
   Certiorari dismissed. 315 So.2d 233.