text:
    Jack WARD, A. W. Cagle & Calvin D. Cagle v. MERCHANTS & FARMERS BANK, Conservator of Estate of Harley C. Lovelace.
    No. 52406.
    Supreme Court of Mississippi.
    March 11, 1981.

      Jim Waide, West Point, for appellant.
    William Ward, Starkville, for appellee.
    Before Patterson, C. J., and SUGG and WALKER, JJ.
   PATTERSON, Chief Justice,

for the Court:

This is an appeal from an order of the Chancery Court of Oktibbeha County sustaining a demurrer to appellants’ amended complaint. The appellants contend the court erred because the complaint sufficiently alleged a cause of action based upon a violation of the Uniform Commercial Code.

On May 14, 1978, the appellants purchased personal property in the amount of $42,500.00 from Merchants & Farmers Bank, which was acting as conservator of the estate of Harley Lovelace. Previously, on December 28, 1977, the real property on which this personal property was located had been sold to Gerald Nelson and George Delivorias. Their deed to the real property stated in part:

Grantor retains, for a period of one year from the date hereof, the non-exclusive right to allow personal property and belongings of the Conservatorship estate, to remain on the fenced in yard outside the shop and office building, and to remove the same within such period.

The appellants contend that in August, 1978, Delivorias refused them access to a substantial amount of the personal property they had purchased. Therefore, the appellants filed suit for replevin of their property in circuit court. Subsequently, the suit was transferred to chancery court, where the Chancellor sustained the Bank’s demurrer to the amended complaint.

In our opinion, the amended complaint set forth a cause of action under Section 75-2-503 of the Mississippi Code Annotated (1972). Therefore, the demurrer should not have been sustained. Section 75-2-503 states in pertinent part:

(1) Tender of delivery requires that the seller put and hold conforming goods at the buyer’s disposition and give the buyer any notification reasonably necessary to enable him to take delivery.

It has long been the rule in considering a demurrer that the facts alleged in the complaint must be taken as true. E. g., Brown v. Elton Chalk, Inc., 358 So.2d 721 (Miss.1978); Poole v. Brunt, 338 So.2d 991 (Miss.1976).

In our opinion, the amended complaint, taken as true, alleges two breaches of Section 75-2-503. First, the Bank failed to put and hold the goods at the buyer’s disposition. As stated in the amended complaint, the appellants were not allowed to take possession of the property. An analogous case is Goosic Construction Company v. City National Bank of Crete, 196 Neb. 86, 241 N.W.2d 521 (1976). In Goosic, City National Bank agreed to sell Goosic a set of concrete forms which were in storage. When Goosic attempted to take possession of the forms, a third party refused, claiming a storage lien. The court allowed Goo-sic to recover against the bank because tender of delivery required the bank to put and hold the goods for Goosic. The court stated:

The evidence supports a finding City National neither tendered a delivery, nor delivered, the forms to Goosic.
For a delivery, or tender, to be effective, it must enable the buyer or his agents to take possession of the goods in a peaceful manner and without interference. 196 Neb. at 88, 241 N.W.2d at 522.

Secondly, the Bank failed to give the appellants notification reasonably necessary for them to take delivery. The appellants allege the Bank did not inform them that the time for removing the personal property, as provided for in the real property deed, would expire on December 28, 1977. The Bank contends in its answer the appellants were given notice of this time limit. However, the complaint must be taken as true for the purposes of the demurrer, leaving the fact issue to be decided in a hearing on the merits.

In sum, Section 75-2-503 requires the seller to hold the goods at the buyer’s disposition and to give such buyer notice necessary for him to take delivery. The appellants’ complaint, which must be taken as true, states the appellants were prevented from taking possession of the goods, and that the Bank did not inform them there was a one year time limitation in the real property owner’s deed for removal of the goods. These facts are a violation of Section 75-2-503. Therefore, the court erred in sustaining the demurrer.

REVERSED AND REMANDED.

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


source: Caselaw Access Project

author: PATTERSON, Chief Justice,

license: Public Domain

text:
    Butch Lee BAKER v. STATE of Mississippi.
    No. 52439.
    Supreme Court of Mississippi.
    March 11, 1981.
    Rehearing Denied April 1, 1981.

      James H. Heidelberg, Wright & Heidelberg, Pascagoula, for appellant.
    Bill Allain, Atty. Gen. by Catherine Walker Underwood, Special Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C. J., and SUGG and WALKER, JJ.
   PATTERSON, Chief Justice,

for the Court:

Butch Lee Baker was convicted in the Circuit Court of the First Judicial District of Harrison County for carrying a concealed weapon after conviction of a felony and sentenced to life imprisonment without probation or parole under the habitual offender statute. Baker appeals, assigning four errors:

1. MCA § 99-19-83 (habitual offender statute) is unconstitutional as written and applied.

2. The Court erred in admitting evidence of four prior convictions at the trial-in-chief.

3. The proof was insufficient to sentence Baker as an habitual offender.

4. The Court erred in improperly instructing a state’s witness regarding his testimony.

On January 10, 1979, Baker purchased a .38 Brohm pistol from Louis Tyler, commonly know as Fish Slim. Larry Dedeaux testified defendant was carrying the weapon in Mrs. Baker’s automobile on the night of January 10, 1979. Mrs. Baker was driving the car, Baker was seated on the passenger’s side of the front seat, and Dedeaux was seated in the rear. Baker fired the gun once into the backseat of the automobile and also fired it in his home. While they were riding around, Baker got out of the ear at one time with the gun partially concealed in his pants belt. Throughout the night, the gun stayed mostly in Baker’s hands.

Officer James K. Sanders testified Baker was arrested on February 3,1979, and after being read his constitutional rights, voluntarily made an oral statement which was taped and later transcribed. In it Baker confessed he purchased the gun which he later sawed off because the barrel was split. He also confessed to other crimes committed which were deleted from his statement and not admitted as evidence at trial.

Certified copies of Baker’s prior felony convictions in Oklahoma were introduced into evidence in the single stage trial. These convictions included rape in the first degree, assault and battery with intent to kill, and escape from a state penitentiary. Baker admitted in his testimony that he was convicted of these prior felonies and actually served 6 years, 5 years, and 2 years, respectively.

Baker challenges the constitutionality of MCA § 99-19-83 (Supp. 1980) as written and applied. This statute, one of Mississippi’s recidivist statutes designed to deter habitual criminals and subsequent offenders, provides as follows:

§ 99-19-83. Sentencing of habitual criminals to life imprisonment.
Every person convicted in this state of a felony who shall have been convicted twice previously of any felony or federal crime upon charges separately brought and arising out of separate incidents at different times and who shall have been sentenced to and served separate terms of one (1) year or more in any state and/or federal penal institution, whether in this state or elsewhere, and where any one (1) of such felonies shall have been a crime of violence shall be sentenced to life imprisonment, and such sentence shall not be reduced or suspended nor shall such person be eligible for parole or probation.

Baker asserts the statute violates the Mississippi Constitution, Article 3, § 28 and the Eighth Amendment of the U. S. Constitution’s prohibition against cruel and unusual punishment as applied to the states through the Fourteenth Amendment. Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962).

His challenge is based on a double enhancement theory in that the crime of carrying a concealed weapon is generally a misdemeanor but as to felons it is raised to the level of a felony. MCA § 97-37-5 (1972). To enhance the punishment to which Baker is subject because of his classification as a former felon, the recidivist statute, § 99-19-83, is also applied. Thus, according to appellant, the two statutes, operating together, doubly enhance Baker’s sentence to life imprisonment without probation or parole. We are of the opinion appellant’s double enhancement rational is not a convincing challenge to the constitutionality of § 99-19-83. Stated differently, it is not cruel and unusual punishment.

Appellant’s reliance on Rummel v. Estelle, 445 U.S. 263, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980) is misplaced, for there the U. S. Supreme Court held the application of the Texas recidivist statute as applied was not cruel and unusual punishment. Rummel was sentenced to life imprisonment subject to parole following a third felony conviction for obtaining $120.75 by false pretenses. Although Baker’s life imprisonment is not subject to probation or parole and the variable of possible parole is not present in Baker’s case as in Rummel, we are of the opinion that the granting of the privilege of parole to a certain class of criminals and the denial of parole to others is a question of state policy exclusively for the state’s decision. Ughbanks v. Armstrong, 208 U.S. 481, 28 S.Ct. 372, 52 L.Ed. 582 (1908). It is a matter within the legislative prerogative which is not a proper subject of judicial interferences. Society is entitled to protection against criminals who habitually wreak unlawful aggression against the lives and property of the law abiding citizens of the state. Whe,n a convicted felon has demonstrated incorrigibility to the ordinary modes of punishment, it becomes necessary to seek other means to deter his criminal propensities, and such may be done by the legislature even to the extent of depriving him permanently of his liberty. See Ex Parte Boatwright, 119 Cal.App. 420, 6 P.2d 972 (1931); In Re Rosencrantz, 205 Cal. 534, 271 P. 902 (1928).

We have long held that a sentence which does not exceed statutory limits is not cruel or unusual punishment. McAdory v. State, 354 So.2d 263 (Miss.1978); Ainsworth v. State, 304 So.2d 656 (Miss.1975), cert. denied, 422 U.S. 1012, 95 S.Ct. 2637, 45 L.Ed.2d 676 (1975); Clanton v. State, 279 So.2d 599 (Miss.1973). These decisions and numerous others recognize the principle of legislative discretion in determining the proper punishment for criminal offenders and we think this accords with Rummel wherein Justice Rehnquist stated:

The purpose of a recidivist statute such as that involved here is not to simplify the task of prosecutors, judges, or juries. Its primary goals are to deter repeat offenders and, at some point in the life of one who repeatedly commits criminal offenses serious enough to be punished as felonies, to segregate that person from the rest of society for an extended period of time. This segregation and its duration are based not merely on that person’s most recent offense but also on the propensities he has demonstrated over a period of time during which he has been convicted of and sentenced for other crimes. Like the line dividing felony theft from petty larceny, the point at which a recidivist will be deemed to have demonstrated the necessary propensities and the amount of time that the recidivist will be isolated from society are matters largely within the discretion of the punishing jurisdiction. 445 U.S. at 284-285, 100 S.Ct. at 1144-1145, 63 L.Ed.2d at 397.

Therefore, we hold that § 99-19-83 is constitutional as written and as applied to the present case.

Appellant’s second assignment of error that the court erroneously admitted evidence of four prior convictions at the trial-in-chief is in the nature of an attack on the single stage proceeding for both the guilt and recidivist phases of Baker’s trial held on July 10, 1979. While it is true that the Mississippi Uniform Criminal Rules of Circuit Court Practice 6.04 (1979) provides for a bifurcated trial on the issues of guilt and recidivism, these rules were not adopted until August 15, 1979, approximately one month after Baker’s trial. Because Baker’s trial antedated the adoption of Rule 6.04 providing for bifurcation on the issues of guilt and recidivism, the introduction of the prior felony convictions in a single stage proceeding was proper. Spencer v. Texas, 385 U.S. 544, 87 S.Ct. 648, 17 L.Ed.2d 606 (1967); Nettles v. State, 380 So.2d 246 (Miss.1980); Davis v. State, 377 So.2d 1076 (Miss.1979); Lay v. State, 310 So.2d 908 (Miss.1975).

Appellant further asserts the proof was insufficient to sentence Baker as an habitual offender. Again appellant’s assertion is not meritorious. The indictment included the principal charge of carrying a concealed weapon after conviction of a felony and also included three prior felony convictions, two of a violent nature. Certified copies of the prior convictions were introduced into evidence, and Baker’s testimony corroborated the fact that he had been convicted and served his sentences for all three prior felonies. The State sufficiently proved the prior convictions, so that we are of the opinion the enhancement of Baker’s punishment under § 99-19-83 was based upon ample evidence. See Jordan v. State, 362 So.2d 647 (Miss.1978); Bell v. State, 355 So.2d 1106 (Miss.1978); Lay, supra.

Appellant further argues the Court erred by improperly instructing a state’s witness regarding his testimony. We believe the instruction of witness Larry De-deaux was necessary because the trial court deleted certain portions of Baker’s confession concerning other crimes committed by Baker on the night he was carrying a concealed weapon. Dedeaux was witness to these other inadmissible crimes, and it was highly probable that he would have mentioned them in the presence of the jury had he not been so instructed. The following discussion occurred outside the presence of the jury.

“BY THE COURT: All right, now what is it you want to show?
BY MR. THOMAS: Here’s what it is, Judge. This witness here, this next witness here, is Larry Dedeaux; right?
BY THE WITNESS: Yes, sir.
BY MR. THOMAS: Okay. Mr. Dedeaux was with this Defendant on the evening of January 10th of this year, after he had purchased this weapon. Obviously, the entire statement reflects what happened and why this, weapon was purchased, marked State’s Exhibit No. 1, and what was done with it afterwards.
Now, my, in trying to follow the Court’s ruling, I don’t want to get into another crime that occurred that evening other than this one thing and that’s the fact that this Defendant was carrying this concealed weapon.
BY THE COURT: Well, take him back there and tell him that he can tell that he rode around all afternoon or night or however long this was, likely it was an extended period of time and that the Defendant had the gun with him during that time and I understand that he shot into the backseat once. Is that right? BY MR. THOMAS: That’s right.
BY THE COURT: Well, you can bring that out. But, I think that’s all that should be brought out here and keep him off the other things. You coach the witness. You know what you want. All right, let’s take a break.
BY MR. THOMAS: You understand what he just said ....
BY THE COURT: (Interposing) You listen to what he tells you, Larry. In other words, we can’t bring out, the State cannot show in its case-in-chief against the Defendant that you all had, that there was rape going on that night and these other things about shooting into the fellow’s house. Of course, you can show that he shot it into the backseat. I couldn’t understand what he was shooting at back there except just to see if it would shoot. All right, we’ll take a recess.”

These instructions were protective of Baker and not prejudicial to him in any way. The trial judge has the responsibility within judicial discretion to confine testimony to the issues before it. Hannah v. State, 336 So.2d 1317 (Miss.1976). In this regard the trial judge did not abuse his discretion.

The verdict and sentence are affirmed.

AFFIRMED.

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


author: BROOM, Justice,

text:
    SPERRY-VICKERS, INC. and Liberty Mutual Insurance Company v. Walter Ray HONEA.
    No. 52582.
    Supreme Court of Mississippi.
    March 18, 1981.

      Dan McCullen, Butler, Snow, O’Mara, Stevens & Cannada, Jackson, for appellants.
    Donald C. Woods, Danny E. Cupit, Cupit & Maxey, Jackson, for appellee.
    Before ROBERTSON, P. J., and BROOM and HAWKINS, JJ.
   BROOM, Justice,

for the Court:

Workmen’s compensation benefits for pulmonary fibrosis lung disease were awarded claimant Walter Ray Honea. His employer, Sperry-Vickers, Inc. (Vickers herein) and Liberty Mutual Insurance Company appeal contending that (1) the evidence submitted by claimant fails to establish that he suffered an occupational disease or accidental injury, (2) the medical opinion submitted in behalf of claimant by Dr. A. W. Conerly in response to a hypothetical question was erroneous, (3) the claimant was erroneously awarded medical expenses because he sought medical expenses from his group insurance carrier without requesting it from the employer, and (4) penalties were erroneously imposed by the commission. We affirm except as to penalties.

Honea was employed at Vickers from July 1966 through April 1977 as a test stand operator and for three months as a test maintenance troubleshooter. His primary duty as a test stand operator was to examine hydraulic components, i. e., valves, motors and pumps for leaks, pressure flow, and output. The fluids were circulated through the hydraulic components. Some of the hydraulic fluids used were Red Oil— NIL 5606A, Skydrol 500, Aerosafe 2300, and DET 24 and 26. Units were cleaned with Stoddard Shop Solvent, trichloroethylene (used until 1971), and ether. Honea noted that when he arrived at work in the morning, the plant was clear, but within a few minutes after starting up the machines, a gray mist permeated the air. He stated that Skydrol caused him to cough, burned his eyes, nose and throat, and gave off an odor. Both the Skydrol and the Aerosafe caused a burning sensation to his skin.

On March 7, 1977, Honea entered Hinds General Hospital suffering from what was later to be diagnosed as pulmonary fibrosis (scarring of lung tissue). While in the hospital, Bobby Hudson, supervisor at Vickers for the test maintenance department, visited Honea who remained hospitalized for three weeks. He returned to work at Vick-ers after his release from the hospital in April 1977 but remained at his job only three days before he had to terminate his employment. Honea was only 37 years old in 1977.

At the administrative hearing, Honea gave a detailed history of his past health problems and work experience. As a child, he suffered from recurring asthma attacks although these attacks subsided after he had his tonsils removed in 1947. Only on one other occasion, while serving in the army, did he have an asthma attack, and asthma is admittedly not a factor as to the pulmonary fibrosis here. He did, however, have repeated cold and flu-like symptoms which caused him to miss several days of work at a time. The only job in which his working environment was likely to produce or aggravate his medical condition was at Vickers. He also stated that he had never smoked. Before working at Vickers, he had worked as a delivery man and salesman. He was never around any dust-producing industry, i. e., farming, sugar cane, grain, aluminum, coal, asbestos, or sandblasting, and had never lived near factories that produced smoke or gaseous fumes. Several months prior to his March 1977 illness, he began to experience debilitating symptoms which became more advanced after the illness. He now has extreme shortness of breath and can only do light housework. Taking out the garbage now requires a major physical effort.

Medical testimony will be reviewed in discussing the issues.

DID HONEA PROVE THAT HE HAD SUFFERED AN OCCUPATIONAL DISEASE AS A RESULT OF HIS EMPLOYMENT WITH VICKERS? Relying upon Flintkote Co. v. Jackson, 192 So.2d 395 (Miss.1966), appellants Vickers and Liberty Mutual argue that the record contains no credible testimony to support the conclusion of the administrative judge (AJ), commission, and circuit court. It is true that as held in Flintkote, the claimant has the burden of establishing his claim beyond speculation and conjecture. In Flintkote, benefits were denied the claimant because he failed to meet his burden of proof, but the facts here are quite different from those in Flintkote. Dr. Albert W. Conerly, with the Division of Pulmonary Medicine of the Department of Internal Medicine at the University of Mississippi Medical Center in Jackson, testified that he could not give a specific agent that was fibrosis-producing in Honea’s lungs. He concluded:

Many disease processes have very definitive appearances, but in pulmonary fibrosis there are many — anything that we put into the idiopathic category means that we have not demonstrated a specific histological appearances [sic] nor a specific agent.

On further examination by appellant’s attorney, Mr. McCullen, Dr. Conerly noted that two of the chemical agents Honea was exposed to while at Vickers had the potential of causing pulmonary fibrosis. The appellants concluded their questioning of Dr. Conerly with the following:

Q. Doctor, he says assume that he has excluded all other causes. You can’t as a medical doctor assume that all causes have been excluded because you don’t know all causes, do you?
A. No, sir. My answer was based purely on the hypothetical question.
Q. And the degree of exposure for one of those chemicals to create this condition would require a chronic exposure over a long period of time in a concentrated amount of the element in the atmosphere, wouldn’t it?
A. I can answer affirmatively on some points. The only point that I can’t give you a specific answer on in that question is that we don’t know on any of this occupational business. In any specific person the ability of a substance to cause a problem is unknown. It may be very low or it may be very high but regardless of what this threshold is in this single person and for this single agent, regardless of whether it takes a little bit or a whole lot or half way in between it does take repeated exposures and, of course, this generally is when you say a long period of time, very rarely is it less than months and it’s usually in terms of years.
Q. And it’s at a high concentration normally, isn’t it?
A. Again, it’s hard for me to give you a specific answer on that because there are people who do not require high concentrations, but threshold limit values, as established in OSHA, are based on the fact that the large portion of the population will require high concentrations.
Q. Well, we can’t state then based on reasonable medical probability that there is a causal relationship between his condition and his working environment over an exposure during a reasonably definite period of time, can we?
A. I really can’t state that because I don’t know what causes it to begin with.

It is to be noted that although Dr. Conerly testified that there was no specific causal agent of fibrosis, he stated that some chemical agents affect some people differently from others. He also testified that asthma does not cause pulmonary fibrosis. Conerly concluded that it was difficult to determine if Honea had had any adverse reaction to a particular chemical, years or months after such exposure, since chemicals do not leave any particulate matter in the lungs.

In his order, the AJ discussed Conerly’s deposition:

In this said deposition, Dr. Conerly causally connected the claimant’s pulmonary fibrosis to the claimant’s employment with Sperry-Vickers. Dr. Conerly further testified that the pulmonary function studies performed in May of 1977 revealed characteristic patterns of restrictive process with some evident terminal air-flow limitation which indicated small airway obstruction. The claimant’s forced vital capacity was 62 percent of the predicted norm and the stated lung volumes reflected the loss of volumes in all compartments of the lungs. He stated that oxygen transfer was approximately 44.7 percent of the predicted and that the claimant was noted to have a positive bronchodilator response indicating a reversible component of a small airway with obstructive disease.

Given the nature of the chemical agents, Dr. Conerly bridged the causal gap as follows:

The man has fibrosis and the man has been exposed to agents which are known to cause fibrosis and from a medical standpoint I can assume a relationship but I cannot prove without any question of a doubt that any of these agents actually did it.

Dr. Jessie L. Wofford, a general and chest surgeon, also testified as to Honea’s condition. In a written report dated February 15,1979, Wofford concluded that Honea did not sustain any lung injury as a result of his working at Vickers. On cross examination, however, Wofford admitted that this report was written prior to reviewing Honea’s hospital records. He also stated that the “life span of a person with active pulmonary fibrosis is substantially shortened.”

The AJ succinctly summarized Wofford’s testimony:

Dr. Wofford next saw the claimant on January 29, 1979, at the request of the Honorable Dan McCullen, attorney for the employer and carrier. On the appointment of January 29, 1979, Dr. Wof-ford performed a physical examination on the claimant and also examined hospital and doctors’ records from Hinds General Hospital. On that date he also sent the claimant to a radiology group for x-rays. Upon this examination, Dr. Wofford testified that the claimant had no other lung problems than asthma. It was further Dr. Wofford’s opinion that the interstitial pulmonary fibrosis found in claimant’s lungs was not related to the asthma but that he thinks it was caused by a viral infection. He stated that the causes of pulmonary fibrosis are unknown. It was his opinion that the problem at work would have shown itself within six weeks instead of six years. Dr. Wofford said that he could not relate the pulmonary fibrosis which the claimant had exhibited to any of the chemicals to which the claimant had been exposed.
On cross-examination, Dr. Wofford testified that pulmonary fibrosis is incurable and that a lung biopsy had shown the pulmonary fibrosis to be in an acute state. Also on cross-examination, Dr. Wofford stated that hydrocarbons can cause pulmonary fibrosis in some instances.

After hearing and reviewing all the medical testimony, the AJ carefully analyzed the testimony and made his award.

Despite the fact that the medical testimony did not specifically isolate a single cause of the pulmonary fibrosis, claimant Honea did present all possible testimony to connect his working environment as the cause of his disease. As noted by Dr. Conerly, the chemical agents Honea was exposed to while on the job at Vickers and not elsewhere could have caused the disease. We think the proof was sufficient to support the findings and order entered below.

We find no merit to the argument that the claimant’s hypothetical question propounded to Dr. Conerly is ground for reversal.

IS CLAIMANT ENTITLED TO RECOVER HIS MEDICAL EXPENSES EVEN THOUGH HE PROCESSED HIS MEDICAL EXPENSES THROUGH HIS GROUP INSURANCE CARRIER? As noted by appellants, claimant went to his own private family physician and did not request his employer to send him to a company doctor. At the time he became ill in March 1977, Honea believed his condition not to be job-related. Vickers, however, was aware of Honea’s illness: Bobby Hudson, Honea’s supervisor, had visited him in the hospital.

In Central Electric & Machinery Co. v. Shelton, 220 So.2d 320, 323 (Miss.1969), claimant signed a written statement in connection with a group insurance policy stating that his injury was not work-connected. This Court held that the signing of such a document is not a bar per se to a claim under workmen’s compensation. Claimant did not believe it was possible for him to reap any benefits under the Workmen’s Compensation Act and therefore asserted that his claim was not work-connected. The facts in the case presently before this Court are distinguishable from those cited by either appellant or appellee. Honea was not aware at the time of his illness that he had pulmonary fibrosis. It was only after his discharge from the hospital that his attending physician, Dr. Patterson, concluded that he had a post-viral small airways disease. It was only after he had been hospitalized on at least three other occasions that Dr. Patterson and the consulting physician decided that he had a reversible obstructive airway disease or asthma and pulmonary interstitial fibrosis. While it is undisputed that Honea sought medical treatment on his own initiative, appellants have failed to show that such treatment would have differed it Vickers had provided the initial medical coverage. Mississippi Code Annotated § 71-3-15(1) (1972) disallows any claim for medical or surgical treatment unless the treating physician notifies the employer and the commission of a need for such treatment. In our particular case, however, Bobby Hudson was aware of Ho-nea’s illness although he was not on notice that it was an occupational disease. Section 71-3-15(1) also provides that the commission may “excuse the failure to furnish such report ... when it finds it to be in the interest of justice to do so, and may, upon application by a party in interest, make an award for the reasonable value of such medical or surgical treatment so obtained by the employee.”

Appellants cite Ingalls Shipbuilding Corp. v. Byrd, 215 Miss. 234, 60 So.2d 645 (1952) as authority that the commission should have disallowed recovery of medical expenses because such services were not requested from Ingalls. In Ingalls, this Court amended the complainant’s award by eliminating the items of medical and hospital bills because he had failed to request that these services be furnished by appellant Ingalls. Speed Mechanical, Inc. v. Taylor, 342 So.2d 317, 319 (Miss.1977) cited Ingalls for the proposition that we could not amend the statute or excuse non-compliance with prerequisite conditions imposed by the legislature. In Speed, at 320, we noted that there were not latent or unknown aspects to Taylor’s injury. Taylor had received serious mouth injuries more than two years prior to filing for workmen’s compensation benefits under the statute. Struthers Wells-Gulfport, Inc. v. Bradford, 304 So.2d 645, 649 (1974) held that the statutory claim period runs from the time that a compensable injury becomes apparent. Justice Inzer noted in Struthers that “Mrs. Bradford had no compensable injury resulting from the spider bite until it became reasonably apparent that she had a disability arising therefrom.”

As in Bradford, it was only after several bouts of debilitating symptoms that Ho-nea’s doctors became aware of the seriousness of his disease. Honea and his doctors used reasonable care and diligence to determine the true nature of his disease. We conclude that under the exception as outlined in Bradford, and in the statutory proviso in Mississippi Code Annotated § 71-3-15(1) (1972), the AJ’s award as to medical bills should be affirmed.

DID THE COMMISSION AND COURT BELOW ERR IN IMPOSING PENALTIES? Mississippi Code Annotated § 71-3-37(5) (1972) provides:

(5) If any installment of compensation payable without an award is not paid within fourteen (14) days after it becomes due, as provided in subdivision (2) of this section, there shall be added to such unpaid installment an amount equal to ten per centum (10%) thereof, which shall be paid at the same time as, but in addition to, such installment unless notice is filed under subdivision (4) of this section, or unless such nonpayment is excused by the commission after a showing by the employer that owing to conditions over which he had no control such installment could not be paid within the period prescribed for the payment.

The particular facts in this case, however, do not warrant the penalty award dating from the March 1977 illness. Weyerhaeuser Company v. Ratliff, 197 So.2d 231, 234 (Miss.1967).

Upon the facts here, the penalty award dating from March 7,1977, cannot be upheld. It would be blatantly unfair to allow the claimant to receive reimbursement for medical expenses commencing from the date of his illness when his claim was filed more than eight months after his initial hospitalization and also to back-date the penalty award to March 1977. No penalty award of 10%, therefore, should be assessed against appellant on the payment due from March 7, 1977, to November 16, 1977. A penalty award, however, should be assessed against appellants from November 16,1977, the date Honea filed his motion to controvert because appellants did not respond to Honea’s claim for more than three months after the claim was filed, § 71-3-37, supra.

Except for the award of penalties, which we limit here in accordance with the preceding paragraph, we hold that affirmance by the circuit court of the award granted by the commission was without reversible error. Upon the record as made below, we are unwilling to place upon the claimant the insurmountable burden of requiring him to isolate and pinpoint to a scientific certainty a specific chemical agent or agents which caused his illness because to do so would defeat the beneficent purposes of the Workmen’s Compensation Act.

AFFIRMED AS TO DISABILITY BENEFITS AWARDED; REVERSED AS TO PENALTIES FROM MARCH 7, 1977, TO NOVEMBER 16, 1977, AND RENDERED.

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


author: WALKER, Justice, PATTERSON, Chief Justice,

text:
    James E. FRENCH et al. v. PEARL RIVER VALLEY WATER SUPPLY DISTRICT et al.
    No. 52313.
    Supreme Court of Mississippi.
    March 18, 1981.

      L. Glenn Fant, Jr., Holly Springs, for appellants.
    William N. Reed, Watkins, Pyle, Ludlam & Stennis, Walker W. Jones, III, Jones & Mockbee, Heber Ladner, Jr., William C. Reeves, Upshaw & Ladner, Jackson, for ap-pellees.
   WALKER, Justice,

for the Court:

This is an appeal from a final judgment of the Circuit Court of the First Judicial District of Hinds County, which court sustained defendants’ demurrer and dismissed plaintiffs’ declaration.

Plaintiffs had sued Pearl River Valley Water Supply District and the members of its Board of Directors. The declaration alleged in detail improper management and operation of Ross Barnett Reservoir and resulting property damage to plaintiffs. The declaration, as amended, stated that prior to the occurrence of the alleged wrongs and injuries one or more of the defendants, acting either severally or in concert, procured for the protection of the Pearl River Valley Water Supply District and the members of its Board of Directors a policy of liability insurance, issued by a company qualified to do and doing business in the State of Mississippi, in the usual and ordinary form of such policies, and in the principal sum unknown to plaintiffs.

The defendants’ demurrer and the court’s reason for sustaining same was upon the ground of sovereign immunity.

I.

The appellants’ first assignment of error is that the Legislature waived the District’s immunity from suit by including in the statute under which the District was formed, Mississippi Code Annotated section 51-9-121(j) (1972), the power “to sue and be sued in its corporate name.” The appellants contend that this language in the statute clearly permits suits against the District and, in effect, waives its sovereign immunity. However, we laid this question to rest in Berry v. Hinds County, 344 So.2d 146 (Miss.1977), where suit was brought against the county for injuries suffered when the plaintiff’s automobile crashed into a collapsed bridge. In that case the Court said:

Appellants contend that they were authorized to bring suit and did bring suit under the provisions of Mississippi Code Annotated § 11 — 45-17 (1972), which provides:
“Any county may sue and be sued by its name, and suits against the county shall be instituted in any court having jurisdiction of the amount sitting at the county site; ...”
Long ago, we held, in State Highway Commission v. Gully, 167 Miss. 631, 145 So. 351 (1933):
“A general statutory grant of authority to sue a governmental subdivision or agency does not create any liability, and suit may be maintained thereunder only for such liability as is authorized by stat ute, expressly or by necessary implication. City of Grenada v. Grenada County, 115 Miss. 831, 76 So. 682; Brabham v. Board of Supervisors of Hinds County, 54 Miss. 363, 28 Am.Rep. 352. At the time these cases were decided, the statute provided that any county might sue or be sued by its name, section 3484, Rev.Code 1871, section 309, Code 1906; and it was expressly held in each of these cases that there can be no liability against the state or its political subdivisions or agencies unless it is expressly or impliedly created by statute.” 167 Miss. at 647, 145 So. at 354. (Emphasis added).
Of course, the courts, as well as the legislature, have the undoubted right to abrogate the doctrine of governmental immunity. We are of the opinion, however that the legislature is in a better position to limit and restrict claims that can be asserted and to provide the ways and means for the paying of such claims (either by taxation or appropriation), if it should see fit to do so. Therefore, we decline to abolish the doctrine of governmental immunity as this time by judicial decision. (344 So.2d at 150-51). (Emphasis added).

II.

The appellants’ next assignment of error is: “The existence of liability insurance waives, pro tanto, sovereign immunity.”

The question, as it pertains to this case, is: Does a governmental entity, by obtaining liability insurance without express statutory authority, waive, to the extent of its coverage, immunity from suit?

This is a question of first impression in this State. Although the doctrine of sovereign immunity is of common-law origin and was first pronounced in this State by the Supreme Court, we have consistently held since that time that there can be no liability against the State or its political subdivisions or agencies unless it is expressly or impliedly created by statute. We have also held steadfast to the proposition that, although the courts have the authority to abolish the doctrine of governmental immunity, the Legislature is in a better position to limit and restrict claims that can be asserted because the Legislature must provide the ways and means for paying, by taxation or appropriation, such claims it should see fit to allow.

It is true that some jurisdiction take the view that a governmental unit is liable for its torts to the extent that a liability insurance policy protects it, because the insurance, to the extent that it protects the public funds, removes the reason for immunity from suits, i. e., if the public funds are protected by liability insurance, the justification and reasoning for the rule of immunity are removed. Thomas v. Broadlands Community Consolidated School District, 348 Ill.App. 567, 109 N.E.2d 636 (1952).

However, the majority of jurisdictions adhere to the rule that there can be no liability against the State or its political subdivisions, unless expressly or impliedly created by statute. See Annot., 68 A.L.R.2d 1437 (1959 and Supp.1980) where the two views are collated.

The Legislature is representative of the will of the people of this State and is aware of the problems connected with the doctrine of sovereign immunity. In fact, the Legislature, in its collective judgment, has addressed the question of immunity in a number of statutes dealing with state agencies and political subdivisions, an example being section 41-13-37 which provides:

The board of trustees provided for in sections 41-13-27 to 41-13-31 shall have the further power and authority, in its discretion, to take adequate liability insurance on the operation of said hospital and, if liability insurance is in effect, may be sued by anyone affected to the extent of such insurance carried. However, immunity from suit is only waived to the extent of such liability insurance carried and a judgment creditor shall have recourse only to the proceeds or right to proceeds of such liability insurance. No attempt shall be made in the trial of any case to suggest the existence of any insurance which covers in whole or in part any judgment or award rendered in favor of a claimant, and if the verdict rendered by the jury exceeds the limit of applicable insurance, the court, on motion, shall reduce the amount of said judgment to a sum equal to the applicable limit stated in the insurance policy. (Emphasis added).

However, there is no statute pertaining to the Pearl River Valley Water Supply District which waives its immunity or permits it to purchase liability insurance for such purpose.

We are, therefore, of the opinion that the unauthorized purchase of liability insurance by the District for protection against claims for which it had immunity does not, pro tanto, waive such immunity or preclude the assertion of such immunity as a defense to suits brought against it. As stated earlier, the Legislature is in a better position to limit and restrict claims that can be asserted and to provide the ways and means for the paying of such claims, if it should see fit to do so. An agency of the government may not assume that legislative function.

The judgment of the circuit court sustaining the demurrer is affirmed. AFFIRMED.

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

PATTERSON, C. J. and BOWLING, J., dissent.

PATTERSON, Chief Justice,

dissenting:

I dissent for the reasons heretofore expressed by Justice Bowling in Jones v. Knight, 373 So.2d 254 (1979).

Another issue is presented in this case of sovereign immunity and that is whether a public entity may purchase liability insurance with public funds, the use and expenditure of such funds being subject to legislative approval, and thereafter interpose a defense of sovereign immunity to protect the insurance carrier? I think not. The case of Thomas v. Broadlands Community Consolidated School District, 348 Ill.App. 567, 109 N.E.2d 636 (1952) presents the better and more practical reasoning for the resolution of this issue. In my judgment the insurance, to the extent that it protects the public funds removes the reason for immunity from suit. I therefore dissent.

BOWLING, J., joins in this dissent.


text:
    MASONITE CORPORATION v. Dependents of Oyce L. GANDY, Deceased.
    No. 52568.
    Supreme Court of Mississippi.
    March 18, 1981.
    Brooke Ferris, Gibbes, Graves, Mullins, Bullock & Ferris, Laurel, for appellant.
    W. Dal Williamson, Charles Pickering, Laurel, for appellees.
   Appeal from Circuit Court, Jones County; James D. Hester, Judge.

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

AFFIRMED.


text:
    Mrs. Berta Kate BRIDGERS, Execx. of Est. of C. S. Bridgers, Dec'd. v. Ronald E. WALKER, Sr.
    No. 52600.
    Supreme Court of Mississippi.
    March 18, 1981.
    William W. Ferguson, Raymond, for appellant.
    E. P. Lobrano, Jr., W. Glen Watts, Jackson, for appellee.
   Appeal from Chancery Court, Hinds County; Joe G. Moss, Chancellor.

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

AFFIRMED.


text:
    Carl G. TILLMAN, d/b/a Tillman Woodyard v. Raymond B. MAY et al.
    No. 52553.
    Supreme Court of Mississippi.
    March 18, 1981.
    Brad Sessums, Young, Scanlon & Ses-sums, Jackson, for appellants.
    Robert R. Bailess, Wheeless, Beanland, Shappley & Bailess, Vicksburg, for appel-lees.
   Appeal from Circuit Court, Warren County; John W. Prewitt, Judge.

Before ROBERTSON, P. J., and BROOM and HAWKINS, JJ.

AFFIRMED ON DIRECT & CROSS-APPEALS.


text:
    Mrs. Ada DEMPSEY v. QUALITY ERECTORS, INC.
    No. 52551.
    Supreme Court of Mississippi.
    March 18, 1981.
    James H. Walker, Cleveland, for appellant.
    Jeffrey A. Levingston, Levingston, Jacks, Levingston & Land, Cleveland, for appellee.
   Appeal from Circuit Court, Bolivar County; Elzy J. Smith, Judge.

Before ROBERTSON, P. J., and SUGG and BROOM, JJ.

AFFIRMED.


text:
    Janie J. CANNON et al. v. Geraldine REEVES.
    No. 52505.
    Supreme Court of Mississippi.
    March 18, 1981.
    Richard E. Stratton, III, Brookhaven, for appellant.
   Appeal from Chancery Court, Lincoln County; Mike Carr, Chancellor.

Before ROBERTSON, P. J., and SUGG and BROOM, JJ.

AFFIRMED.

Ralph L. Peeples, Hobbs, Hobbs & Pee-ples, Brookhaven, for appellee.


text:
    ALTAMIL CORP. et al. v. MISSISSIPPI STATE HIGHWAY COMMISSION.
    No. 52447.
    Supreme Court of Mississippi.
    March 18, 1981.
    J. Elmo Lang, Pascagoula, for appellants.
    Bill Allain, Atty. Gen. by Karl Wiesen-burg, Sp. Asst. Atty. Gen. and by Frank E. Shanahan, Jr., Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Jackson County; Robert A. Pritchard, Judge.

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

AFFIRMED.


text:
    Otis AINSWORTH, d/b/a Otis Ainsworth Oil Operator v. MISS. AIR & WATER POLLUTION CONTROL COMM'N.
    No. 52487.
    Supreme Court of Mississippi.
    March 18, 1981.
    M. M. Roberts, Roberts & Easterling, Hattiesburg, for appellant.
    Bill Allain, Atty. Gen., by J. I. Palmer, Jr., Sp. Asst. Atty. Gen., Jackson, for appel-lee.
   Appeal from Chancery Court, Jones County; J. Shannon Clark, Chancellor.

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

AFFIRMED.


text:
    Anthony Scott LEWIS v. Augustus P. SORIANO.
    No. 52323.
    Supreme Court of Mississippi.
    March 18, 1981.
    Edward A. Williamson, Philadelphia, for appellant.
    Walter W. Eppes, Jr., Eppes & Shannon, Meridian, for appellee.
   Appeal from Circuit Court, Neshoba County; James C. Mayo, Special Judge.

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

AFFIRMED ON CONDITION THAT APPELLEE AGREE TO ADDITUR AS PROVIDED IN THE OPINION OF THIS COURT; OTHERWISE REVERSED AND REMANDED FOR RETRIAL ON ISSUE OF DAMAGES ONLY.

PATTERSON, C. J., and ROBERTSON, P. J., and SUGG, WALKER and BROOM, JJ.

HAWKINS, J., takes no part.


text:
    Marshall SPEARS v. CENTRAL FINANCIAL SERVICES, INC. et al.
    No. 52564.
    Supreme Court of Mississippi.
    March 18, 1981.
    Leslie C. Gates, Meridian, for appellant.
    Thomas L. Webb, Bourdeaux & Jones, Robert M. Dreyfus, Jr., Goldman & Goldman, Meridian, for appellees.
   Appeal from Chancery Court, Lauderdale County; William Neville, Chancellor.

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

REVERSED AND REMANDED.

SMITH and ROBERTSON, P. JJ., and BROOM, LEE, BOWLING and HAWKINS, JJ.


author: JONES, Justice. TORBERT, Chief Justice

text:
    Ida L. Waters HINESLEY et al. v. E. DAVIDSON et al.
    79-201.
    Supreme Court of Alabama.
    Jan. 16, 1981.
    As Modified on Denial of Rehearing March 6, 1981.
    Bert S. Nettles, Mobile, for appellants.
    Champ Lyons, Jr., of Coale, Helmsing, Lyons & Sims, Mobile, and J. B. Blackburn, Bay Minette, for appellees.
   JONES, Justice.

This is the second appeal to this Court by Plaintiffs-Appellants. The first appeal was from an order of the trial court granting Defendant E. Davidson’s motion to dismiss. This Court, per Mr. Justice Bloodworth, reversed and remanded on July 9, 1976 (Hinesley v. Davidson, 335 So.2d 380 (Ala. 1976)). On October 31, 1979, after a hearing on the merits, the trial court entered a final judgment against the Plaintiffs. This appeal is taken from that action.

While Appellants adopt the fact summary from the prior appeal to this Court, Appel-lees are quick to point out that such reliance is misplaced because that appeal disposed of a ruling by the trial court on the pleadings which had not progressed beyond the stage of Defendant’s motion to dismiss. After remand, the Defendants filed answers raising factual issues which were supported by a comprehensive stipulation at the time of trial.

At the outset, we note that our inquiry concerns whether Appellees’ “additional evidence,” via the joint stipulation, was of a character and sufficiency to cause us to deviate from the principles enunciated in our initial opinion. Hinesley I. To this query, we answer in the negative. Again, we reverse and remand.

Stanley M. Waters, the father of Appellants and of the Defendant Stanley L. Waters, died on November 15,1936, while a resident of Baldwin County, Alabama, leaving certain real property in Baldwin County, Alabama. In his will, Stanley M. Waters left all his property to his wife (who is now Virginia Waters Daw, a Defendant herein and mother of the Appellants and of the Defendant Stanley L. Waters) for the term of her natural life and, on her death, to Appellants and Defendant Stanley L. Waters, share and share alike.

The estate of Stanley M. Waters, at the time of his death, was subject to two encumbrances from Stanley M. Waters and Virginia B. Waters to the West Florida Naval Stores Company. Additionally, a vendor’s lien, reserved in a certain deed from J. T. Bradley and Agatha Bradley his wife, to S. M. Waters, dated June 5, 1935, was transferred and assigned by J. T. Bradley to the West Florida Naval Stores Company, by written assignment, on June 19, 1937. These mortgages and lien, and the indebtedness secured thereby, were duly transferred and assigned by West Florida Naval Stores to the Appellee Davidson, and H. L. Taylor, by written assignment, dated February 6, 1941. No formal foreclosure proceedings were ever undertaken by Davidson and Taylor under the mortgages and lien, but in February, 1941, Davidson and Taylor took possession and control of the subject property, except for the 40-acre “home place.”

At the time Davidson and Taylor took possession and control of the property, approximately $3,500.00 was due and owing on the debts of the deceased father, secured by the mortgages and lien. Davidson and Taylor paid the taxes on the land after taking possession, and, subsequent to the death of H. L. Taylor, taxes were paid by Davidson and successors to Taylor.

After Stanley M. Waters’s death, and at the time of the purchases of the mortgages and vendor’s lien by Davidson and Taylor, the mortgages and lien were in default and all the lands referred to in the mortgages and lien had been sold for taxes in two separate sales. After these tax sales, and after their purchases of the mortgages and lien, Davidson and Taylor redeemed all the land, paid all the back taxes, and thereafter had all the lands assessed in their names, except the Waters home place, to which they make no claim.

With the exception of the home place, Davidson and Taylor were in uninterrupted, exclusive possession of the subject property from 1941 until the present. By way of stipulation, the parties agree that, “[a]s of March 10, 1961 [the date of majority of the youngest child], all of the Waters children and the widow became charged with notice of the claims of Taylor and Davidson.” This action commenced on March 28, 1974.

As heretofore stated, our focus is narrowed to whether, on this appeal, Appellees’ supplementation of those facts originally before this Court in Hinesley I is of a degree sufficient to compel a reversal by this Court of that earlier decision. While we now discern additional factual assertions by Appellees, not developed by the case as postured and presented in the first appeal, our response to the above inquiry remains in the negative.

I. Possession of a Mortgagee after Default in Payment of the Mortgage Debt.

Appellees correctly cite Killian v. Everett, 262 Ala. 434, 79 So.2d 17 (1955), for the proposition that “possession of a mortgagee after default in payment of the mortgage debt, without any recognition of his relation to the mortgagor, is adverse, and if such possession is continued for ten years, without recognition of any right in the mortgagor, will bar a recovery by the mortgagor.” See, also, Ward v. Chambless, 238 Ala. 165, 189 So. 890 (1939).

Appellees juxtapose Killian, supra, with their claim of adverse possession against Appellants as remaindermen. While the authority of Killian is clear, we beg to differ with Appellees’ interpretation and its application to the instant case. To adopt Killian, literally, as support for Ap-pellees’ claim of adverse possession against Appellants, as remaindermen, would, in our opinion, abrogate the general rule in this realm. This, we cannot do.

II. Appellees’ Claim of Adverse Possession.

While Appellees concede the general axiom that remaindermen are not subject to claims of adverse possession against their future interests, they assert Duncan v. Johnson, 338 So.2d 1243 (Ala. 1976), for the proposition that their claim against Appellants falls without that purview. We cannot agree.

In Duncan, supra, the Court noticed an exception to the general rule as follows:

“Our cases, we think, are to the effect that in the absence of some special equity in an interest in property in addition to that of one’s interest as a life tenant, or a tenant pur autre vie, and knowledge or some reasonable notice thereof on the part of the remainderman, there is no duty on the remainderman to institute a proceeding to remove a cloud upon title of the remainderman, and the rights of the remainderman as such are not destroyed by the mere expiration alone of a period of time, whether ten years, twenty years or longer.” (Emphasis added.)

Duncan v. Johnson, supra, at 1254.

Appellees point to the joint stipulation, not previously before this Court, whereby it is conceded that their possession and claim of ownership of the subject property was known to the adult members of the Waters family. Appellees equate this stipulation with meeting the burden of proof sufficient for the trial court to infer compliance with the exception spoken to in Duncan.

While we admit to difficulty in ascertaining a precise, and possibly unambiguous, definition of “special equity,” we, again, in face of what we deem a strong social policy undergirding the basic rule, reject Appel-lees’ claim of title against these remainder-men via adverse possession. Here, though not called upon to set the outer limits of the objective effect of the “special equity” exception, we hold that the broad, generalized, conclusory language of the stipulation that the remaindermen had knowledge of Davidson’s and Taylor’s possession and claim of ownership of subject property falls short of the requisite proof to revoke the operation of the general rule.

Were we to adopt the position enticingly dangled before us by Appellees, one need thereafter only show possession coupled with a claim of ownership and notice thereof, and the protection afforded remainder-men per the general rule would be reduced to ashes. Suffice it to say that our careful study of the evidence of record, aided by the excellent briefs of counsel for Appel-lees, fails to disclose that the additional factual assertions contain any objective facts or circumstances from which the trial court could reasonably infer that Appellees had any “special equity” in an interest in the subject property so as to impose upon the remaindermen any duty to earlier assert their claim to it.

Consequently, we are disinclined to divert our path from that laid down by Mr. Justice Bloodworth in his initial interpretation of this cause in Hinesley I. Therefore, the trial court’s order denying the remainder-men’s right of redemption is reversed; and this cause is remanded for further proceeding to adjudicate the respective parties’ redemptive rights.

REVERSED AND REMANDED.

All the Justices concur, except TOR-BERT, C. J., who dissents.

TORBERT, Chief Justice

(dissenting).

I respectfully dissent.

Generally, in a suit for possession of land brought by a remainderman, neither the defense of laches nor the running of the statute of limitations, during pendency of the life estate, is available to the defendant. Hammond v. Shipp, 292 Ala. 113, 289 So.2d 802 (1974). An exception to the rule, however, was thoroughly discussed in Duncan v. Johnson, 338 So.2d 1243 (Ala.1976). For the following reasons, I believe the instant case falls squarely within the exception.

I.

In Alabama, a mortgage operates in law as a conveyance, transferring to the mortgagee the estate of the mortgagor. Hawkins v. Snelling, 255 Ala. 659, 53 So.2d 552 (1951). By virtue of the conveyance, the mortgagee has legal title to the property, but, in equity, the mortgagor retains an interest — the equity of redemption. Id. The mortgagor’s equity of redemption is an equitable interest in land, Cunningham v. Andress, 267 Ala. 407, 103 So.2d 722 (1958), and the interest is the right of the mortgagor to legal title of the mortgaged property, once the mortgage debt is discharged. See Code 1975, § 35-10-26. As an equitable interest in property, the equity of redemption can be conveyed, but the transferee of the mortgagor takes only the equity of redemption, while legal title remains in the mortgagee. Trauner v. Lowery, 369 So.2d 531 (Ala.1979).

On default of the mortgagor, the estate of the mortgagee becomes absolute, subject only to the mortgagor’s equity of redemption. Charles B. Teasley, Inc. v. Dreyfus, 252 Ala. 41, 39 So.2d 377 (1949). However, the mortgagor’s equity of redemption may be terminated by valid foreclosure, either by proceeding in a court of equity or by power of sale. Hawkins v. Snelling, 255 Ala. 659, 53 So.2d 552 (1951). See Code 1975, §§ 35-10-1 to -10. A valid foreclosure creates the statutory right of redemption (Code 1975, §§ 6-5-230 to -246), but until a valid foreclosure, the equity of redemption is not extinguished. Summerford v. Hammond, 187 Ala. 244, 65 So. 831 (1914).

Applying the foregoing principles to the instant case, it becomes apparent that plaintiffs’ suit is one to enforce their equity of redemption. Since the mortgage was never discharged and plaintiffs claim through S. M. Waters, the mortgagor, plaintiffs hold only the equity of redemption. Defendants, as assigns of the mortgagee, never foreclosed the mortgage, but instead they took possession of the mortgaged property. Because no valid foreclosure extinguished the equity of redemption, plaintiffs may redeem the mortgaged property, providing their application is timely.

II.

The statute of limitations for recovery of possession of land (Code 1975, § 6-2-33), may limit the time for exercise of the equity of redemption where the mortgagee is in possession, see, Cunningham v. Andress, 267 Ala. 407, 103 So.2d 722 (1958), or, to the same effect, the mortgagee may adversely possess the equity by reason of Code 1975, § 6-5-200. See, Charles B. Teasley, Inc. v. Dreyfus, 252 Ala. 41, 39 So.2d 377 (1949); Ward v. Chambless, 238 Ala. 165, 189 So. 890 (1939). Apparently the fiction developed that the mortgagor’s equity of redemption, an equitable interest in the mortgaged land, is terminated by the mortgagee’s adverse possession of the mortgaged land. The equity may also be defeated by prescriptive use for twenty years, Gunning- ham v. Andress, 267 Ala. 407, 103 So.2d 722 (1958); Oxford v. Estes, 229 Ala. 606, 158 So. 534 (1934), although it is difficult to imagine an instance when the ten-year limitation would not be applicable. Finally, laches, an equitable defense, may bar the equity, and although laches is sometimes analogized to the statute of limitations, no strict time limit is followed. W. T. Smith Lumber Co. v. Barnes, 259 Ala. 164, 66 So.2d 77 (1953).

The question then arises whether plaintiffs’ equity of redemption is barred by the passage of thirty to forty years from the time of S. M. Waters’s default on the mortgage and mortgagee’s possession of the mortgaged land, until the filing of this suit by plaintiffs. Although plaintiffs are re-maindermen who have never had the right to possess the disputed land, I believe that equity requires they have acted sooner to redeem the land. I would hold that the plaintiffs’ equity of redemption is barred by laches.

III.

Because a remainderman has no immediate right to possess the estate, there can be no possession of the estate adverse to the remainderman during pendency of the life interest. Hinesley v. Davidson, 335 So.2d 380 (Ala.1976). Likewise, until the remain-derman’s interest becomes possessory, he has no cause of action for the possession of land, and the statute of limitations cannot run against him. Id. For these reasons neither the running of the statute of limitations nor adverse possession, during penden-cy of the life estate, is a defense against a remainderman attempting to exercise his equity of redemption. Id.

Laches is a defense against a plaintiff who has failed to do something equity requires to be done, id., and as we said in the previous appeal of this case, “[W]hile the remainderman may maintain an action to remove a cloud on his reversion during the pendency of the life estate, he is under no duty to do so .... ” Id. at 382, quoting from Hammond v. Shipp, 292 Ala. 113, 289 So.2d 802 (1974). But equity at times imposes a higher duty than the law, and notwithstanding our recitation of the general rule in the previous appeal, see id., there are circumstances which require that a remain-derman bring suit to clear his interest in order that he may escape the charge of laches. W. T. Smith Lumber Co. v. Barnes, 259 Ala. 164, 66 So.2d 77 (1953). See, Duncan v. Johnson, 338 So.2d 1243 (Ala.1976).

As was discussed in 21 C.J. Equity § 213 (1920), the applicability of the doctrine of laches depends on the nature of the right asserted and the relief sought.

In reference to the nature of the right asserted and the relief sought, there is a well recognized and fundamental distinction between two classes of cases into one or the other of which all the cases fall. The first class includes those cases where protection is sought against a violation of a present vested property right or what has been termed an “executed interest.” The second class includes those cases in which plaintiffs right is not vested in possession but lies in action, and it is necessary to obtain the peculiar relief afforded by courts of equity in order to invest plaintiff with the right claimed. This kind of right or interest has been termed “executory.” In the case of exec-utory interests, the doctrine of laches applies fully, and in order to obtain relief plaintiff must come into court without unreasonable delay. Where, however, plaintiff comes into equity, not for the creation or establishment of an executory right, but for the mere protection of an executed or vested legal right, the doctrine of laches has little, if any, application. The rule here applied is that, unless the statutory period of limitations has run or sufficient time has elapsed to create a presumption of grant, no mere delay is a bar to equitable relief in support of the legal right, and that plaintiff is precluded from relief only by such conduct as creates an abandonment of the legal right itself, or an estoppel to assert it against defendant.

Id. at 215. (Footnotes omitted, emphasis supplied.) See also 30A C.J.S. Equity § 113 at 29-30 (1965). Since the plaintiffs seek purely equitable relief, /. e., enforcement of the equity of redemption, they seek enforcement of an “executory” interest, and the doctrine of laches is fully applicable to the case.

Alabama cases support the view that a remainderman may be guilty of laches for failure to timely petition for equitable relief from an impediment to his interest. In each case sustaining laches against a re-mainderman for failure to timely assert title to his remainder interest, the remainder-man was “seeking the enforcement of an equitable right upon the establishment of which [his] title and interest depend[ed].” W. T. Smith Lumber Co. v. Barnes, 259 Ala. 164, 169, 66 So.2d 77, 81 (1953) (suit by remainderman to set aside allegedly void foreclosure sale and to exercise equity of redemption). See, Duncan v. Johnson, 338 So.2d 1243 (Ala.1976). Cf. Ward v. Chambless, 238 Ala. 165, 189 So. 890 (1939) (suit by remainderman to set aside foreclosure and to exercise equity of redemption); Huey v. Brock, 207 Ala. 175, 92 So. 904 (1922) (suit by holder of foreclosure deed to quiet title or to extinguish remainderman's equity of redemption); Woodstock Iron Co. v. Fullenwider, 87 Ala. 584, 6 So. 197 (1888) (suit by remainderman to set aside allegedly void administrator’s sale). The rule is that the remainderman’s knowledge of his equitable cause, plus his laches in failing to timely assert it, will bar his subsequent suit to clear or redeem title.

Here, the remaindermen not only had knowledge of the outstanding mortgage, but also had knowledge of the mortgagee’s possession for fifteen to twenty years after the youngest remainderman reached the age of majority. Application of the doctrine of laches requires that defendant be prejudiced by plaintiff’s delay, Meeks v. Meeks, 245 Ala. 559, 18 So.2d 260 (1944), see, W. T. Smith Lumber Co. v. Barnes, 259 Ala. 164, 66 So.2d 77 (1953), and under the facts, there can be no question that the mortgagee in this case was prejudiced by the remaindermen’s delay in prosecuting the suit. Certainly plaintiffs are guilty of laches, and their suit to redeem should be barred.

I do not think my views would abrogate in any way the opinion of this court on the previous appeal of this case. That appeal was from the granting of a Rule 12(b)(6) motion to dismiss. On that appeal, we considered only the pleadings, but whether or not there has been laches turns on the particular facts of each case. See, W. T. Smith Lumber Co. v. Barnes, 259 Ala. 164, 66 So.2d 77 (1953).

In short, plaintiffs had a purely equitable cause to regain legal title to their remainder interest. Knowing that the legal title— the mortgage — was outstanding, plaintiffs delayed for fifteen to twenty years before instituting suit on their equitable cause. All the while the mortgagees were in open and hostile possession of the valuable and appreciating property, having color of title through the mortgage and paying the property taxes. Under these facts and the authorities cited, I believe plaintiffs are guilty of laches.

      . Additionally, the stipulation states: “The possession and claim of ownership of the property made the basis of this action by Davidson and Taylor [were] known to the adult members of the Waters family when Davidson and Taylor were placed in possession of the property and the other plaintiffs have each known of the possession and claim of ownership of Davidson and Taylor since reaching their respective majorities and, certainly, since the year of 1961.”

      . Appellees argue in brief that, by virtue of the stipulation, “[T]he appellees were assignees of the mortgagees and, after the death of the testator, it became obvious to all appellants that the appellees claimed an interest in the property other than the homeplace which was openly hostile to their status as remaindermen. The record is also undisputed that (1) the time frame on this period of knowledge is at least ten years prior to the bringing of this action and, (2) the appellees paid taxes on the property assessed in their names under color of legal title throughout this period.”

      . As a general rule, the statute of limitations does not run against remaindermen during the existence of the life estate for the reason that no cause or compelling right of action is in them; nor can there by any possession adverse to the remaindermen, there being no immediate right of possession in the remaindermen. Pickett v. Doe, 74 Ala. 122 (1883); Bolen v. Hoven, 143 Ala. 652, 39 So. 379 (1905); Dallas Compress Co. v. Smith, 190 Ala. 423, 67 So. 289 (1914); Bishop v. Johnson, 242 Ala. 551, 7 So.2d 281 (1942). See, also, 51 Am.Jur.2d Life Tenants and Remaindermen § 15 (1970).


author: FAULKNER, Justice.

text:
    STATE of Alabama, on the relation of Billy GRAY; Billy Gray, Individually v. Joseph D. KING.
    No. 79-627.
    Supreme Court of Alabama.
    Jan. 29, 1981.
    Rehearing Denied Feb. 26, 1981.

      John S. Foster and Raymond P. Fitzpatrick, Jr., Birmingham, for appellants.
    James J. Thompson, Jr., of Hare, Wynn, Newell & Newton, Birmingham, for appel-lee.
    Charles H. Wyatt, Jr., Birmingham, for amicus curiae.
   FAULKNER, Justice.

This is an appeal from an order dismissing petitioner’s complaint on the grounds, (1) the complaint failed to state a claim; (2) the complaint failed to show that the action was prosecuted by the real party in interest. We affirm.

When a vacancy occurred in the job of Captain, Birmingham Fire Department, it was filled according to rules and provisions governing the county-wide civil service system. In competing for the job, John R. Lewis finished first, and Joseph D. King finished second. The identity of the person finishing third is not shown in the record. These three names were certified to the Fire Chief, and he chose King to be the new Captain of the Fire Department.

A quo warranto proceeding in the name of the State of Alabama on the relation of the Birmingham Firefighters Association, Local # 117, on the relation of Billy Gray, the president of the Association was filed challenging King’s right to hold the “office” of Captain. Billy Gray and the Association were also named as parties plaintiff in their individual capacities. In response to the complaint, King filed a motion to dismiss pursuant to ARCP 12(bX6). After a hearing, the trial judge entered an order dismissing the complaint for failure to state a claim upon which relief could be granted, and for failure to show that the real party in interest prosecuted the claim.

The principal issue presented in this appeal is whether a captaincy in the Birmingham Fire Department is a public office, and thereby subject to a quo warranto action against an alleged usurper, intruder, or unlawful holder of an office under § 6-6-591, Code 1975.

A public office is the right, authority, and duty, created by law, by which for a given period, either fixed by law or enduring at the pleasure of the creating power, an individual is invested with some portion of the sovereign functions of the government, to be exercised by him for the benefit of the public. Lacy v. State, 13 Ala.App. 212, 68 So. 706 (1915). Constitutionally, the term “public office” implies an authority to exercise some portion of the sovereign power, either by enacting, executing or administering the laws. Cf. State v. Christmas, 126 Miss. 358, 88 So. 881 (Miss. 1921), State ex rel. Mantell v. Baumhauer, 31 Ala.App. 27, 12 So.2d 332 (1942).

Under these definitions, it is obvious that a captaincy in a fire department is not a public office, and the trial judge correctly dismissed the complaint pursuant to Rule 12(b)(6).

Having reached the conclusion that quo warranto will not lie because a fire captaincy is not a public office, we pretermit any discussion of standing.

AFFIRMED.

TORBERT, C. J., and EMBRY, BEATTY and ADAMS, JJ., concur.


author: MADDOX, Justice.

text:
    Ruby J. PRESTWOOD v. Lucille PRESTWOOD et al.
    No. 79-74.
    Supreme Court of Alabama.
    Feb. 20, 1981.

      George E. Trawick, Ariton, for appellant.
    Sterling G. Culpepper, Jr. and David R. Boyd of Smith, Bowman, Thagard, Crook & Culpepper, Montgomery, for appellees.
   MADDOX, Justice.

This is an appeal from the judgment of the Probate Court of Coffee County finding Ruby J. Prestwood to be of unsound mind and appointing Olivia Prestwood Crawley and Jeanice Prestwood Fuller as co-guardians of her estate.

Lucille Prestwood, the widow of a deceased son of Ruby J. Prestwood, and Olivia Prestwood Crawley, and Jeanice Prestwood Fuller, daughters of Lucille Prestwood and granddaughters of Ruby J. Prestwood, filed the petition to have Ruby J. Prestwood declared incompetent. In that petition, they averred that Ruby J. Prestwood had conveyed to her son, and only surviving child, Morris J. Prestwood, all of her realty and personalty. The probate judge, before the petition was heard, appointed a guardian ad litem to represent Ruby J. Prestwood and the cause came to trial on June 21, 1979, before six jurors summoned by the sheriff, as provided by law. Ruby J. Prest-wood was not taken into custody by the sheriff at any time as specified in the statute, although the sheriff, in his return of service, stated that “it being consistent with the health or safety of the said Ruby Prest-wood, she is taken into custody and brought before the court.”

The trial was not concluded on June 21, 1979, and was continued by the probate judge on his own motion to July 13, 1979. Because of the illness of one of the jurors, the trial was again continued by the probate judge to August 30, 1979. On August 30,1979, the guardian ad litem moved for a mistrial on the ground that there was an “inordinate delay” between the hearings; the probate judge denied the motion for mistrial.

At the close of the evidence, the six-person jury returned a verdict finding Ruby J. Prestwood to be of unsound mind. Immediately, the probate judge appointed Mrs. Crawley and Mrs. Fuller as co-guardians.

The guardian ad litem sought to appeal the judgment to the circuit court for a trial de novo. This appeal was dismissed by order of the probate judge. The guardian ad litem, on behalf of Ruby J. Prestwood, then filed this appeal with this Court.

Appellant Ruby J. Prestwood, raises the following issues:

(1) Whether the proceedings were void because the sheriff failed to take the person alleged to be of unsound mind into custody;

(2) Whether due process and equal protection were denied because of the delay occurring during the trial;

(3) Whether it was error to refuse to charge the jury that the capacity of the respondent was legally presumed;

(4) Whether it was error to refuse to charge the jury that the burden of proof was on the petitioners;

(5) Whether it was a denial of due process and equal protection to deny Ruby Prestwood the right to appeal to the circuit court;

(6) Whether a statutory scheme which permits the aged and senile to be deprived of their rights without a fair trial violates the requirements of equal protection and due process under provisions of the United States Constitution;

(7) Whether a summary denial of a motion for new trial which alleged grounds requiring an evidentiary hearing denies due process and equal protection.

I

The appellant argues that the proceedings were void because all the necessary procedural steps which confer jurisdiction upon the probate court were not followed. Specifically, the appellant alleges that the provisions of Code 1975, § 26-2-43, were not followed because the sheriff did not take Ruby J. Prestwood into custody. Appellant relies heavily upon Fowler v. Fowler, 219 Ala. 453, 122 So. 440 (1929), which states:

In this proceeding, it is a court of statutory and limited jurisdiction, and, in order to sustain the decree adjudging the complainant a person of unsound mind, it must affirmatively appear on the face of the record that all of the necessary jurisdictional steps were taken to complete the court’s jurisdiction, and the record cannot be aided by intendment, even on collateral attack. Wiley v. State, 117 Ala. 158, 23 So. 690; Commissioners' Court v. Thompson, 18 Ala. 694; Field’s Heirs v. Goldsby, 28 Ala. 218, 65 Am.Dec. 341; Brooks v. Johns, 119 Ala. 412, 24 So. 345; Chamblee v. Cole, 128 Ala. 649, 30 So. 630; Goodwin v. Sims, 86 Ala. 102, 5 So. 587, 11 Am.St.Rep. 21; Miller et al. v. Thompson et al., 209 Ala. 469, 96 So. 481; Ex parte Griffith, 209 Ala. 158, 95 So. 551.
The only matter appearing on the face of the proceedings, made a part of the bill by exhibits — other than the appointment of a guardian ad litem and the acceptance and answer of the guardian ad litem — going to show that the probate court acquired jurisdiction of the person in the lunacy proceedings, is the following recital in the face of the court’s decree: “Whereas a writ was issued by said court directed to the sheriff of said county to take the said James A. Fowler, and if consistent with his health or safety, have him present in court at the place of trial, and the sheriff of said county has executed said writ and made the following return thereon: T have executed the within writ and hereby certify that the said James A Fowler is at his residence and that in my judgment it would be inconsistent with his health or safety to have him present on the trial of the within cause. This the 11th day of April, 1925, George McPherson, Sheriff.’ ”
This recital is contradicted by the writ and the return thereon, showing that the writ was executed only by summoning the jurors for the trial. The sheriff’s return indorsed on the writ is, “I have executed the within by summoning the following named persons," followed by the names of the jurors summoned for the trial issue of insanity.
Aside from the fact that the recital in the decree does not affirmatively show that the sheriff executed the writ by taking the alleged lunatic into his custody, the contradiction of the recital in the decree by the record, de hors the decree, destroys the efficacy of this recital to sustain the jurisdiction of the person, and, on the principle stated, it appears that the proceedings are void. Ex parte Griffith, 209 Ala. 158, 95 So. 551.
The notice attached as Exhibit 4 to the bill, issued on the 4th day of April, 1925, directed to the alleged lunatic, purporting to give notice of the filing of the petition and the hour and date of hearing and purporting to have served on the day of the hearing, whether before or after the hour set for the trial it does not appear, was not authorized by the statute, and the probate court was without authority to substitute this for the notice provided by the statute, the service of the writ issued to the sheriff to take the body of the alleged lunatic into his custody, and the service of this notice, though it be assumed that no deceit was practiced in reference thereto, was inefficacious to complete the court’s jurisdiction to proceed. 6 R.C.L. 448, § 444; Griggs v. Hanson, 86 Kan. 632, 121 P. 1094, 52 L.R.A. (N.S.) 1161, Ann.Cas. 1913C, 242.
The wise policy of the statute requiring that the sheriff take the person of the alleged lunatic into his custody is to bring the alleged lunatic notice by restraining him of his liberty, so that if he has any mind at all he will realize that he must defend in order to remove this restraint, and, if not, persons interested in his freedom and his property rights may come to his aid. Anything short of this cannot be approved as due process of law. 6 R.C.L. 446, § 442; Simon v. Craft, 182 U.S. 427, 21 S.Ct. 836, 45 L.Ed. 1165.

219 Ala. 455, 122 So. 440.

It is not controverted that the sheriff in this case did not take Ruby J. Prestwood into custody; he merely served her with the writ. Thus, it would seem that the provisions of § 26-2-43 have not been met because § 26-2-43 states that the probate judge must issue a writ directing the sheriff to “take” the person alleged to be of unsound mind and to have the person present at trial if that is consistent with the health or safety of the person. The Fowler case, relied on by the appellant, if read literally, would seem to require that an alleged incompetent must be restrained of his liberty before the jurisdiction of the probate court is quickened. If Fowler were read literally and stood for the proposition that the only way an incompetent could be given notice of a competency hearing would be by an actual restraint of his person, Fowler would be wrong, but Fowler does not stand for that proposition, in our judgment. As we read Fowler, it only stands for the proposition that an alleged lunatic must have notice, and one method of bringing notice home to him is by restraining him of his liberty. On this question of notice, Fowler is eminently correct law because fundamental fairness would require adequate notice of a competency hearing. We do not read Fowler, therefore, as holding that an incompetent must be restrained of his liberty before the jurisdiction of the probate court is quickened. Furthermore, in Fowler, it does not appear that the alleged lunatic was present at trial. The facts in Fowler, therefore, differ from the facts here. In the present case, Ruby J. Prestwood, although never taken into custody by the sheriff, was present at the hearing. In fact, she testified in her own behalf at the hearing.

The facts of this case are more similar to the facts in Benton v. Benton, 211 Ala. 43, 99 So. 300 (1924), where Justice Sayre, writing for the Court, discussed probate court jurisdiction when the alleged incompetent has not received the statutory notice but is actually present at the hearing. He opined:

It is insisted in the first place that the record fails to show that proper steps were taken to bring appellant into court. The statutory provision is that—
“He [the judge of probate before whom has been filed a petition for an inquisition of lunacy] must also issue a writ directed to the sheriff, to take the person alleged to be of unsound mind, and, if consistent with his health or safety, have him present at the place of trial.”
The jurisdiction of the probate court in the premises attaches upon the filing of a proper petition and the service of summons and notice upon the alleged non compos mentis. Craft v. Simon, 118 Ala. 625, 24 So. 380. But every purpose and office of the summons and notice prescribed by the statute is served when it brings the alleged non compos into court, and when, as here, it appears from the recitals of the judgment entry that the subject of the inquisition has appeared in person at the time and place of trial, though it does not otherwise appear that there was summons and notice, the decree of the court must be respected as having been rendered in the exercise of jurisdiction lawfully acquired. Molton v. Henderson, 62 Ala. 426, cited by appellant, holds nothing to the contrary. In that case the alleged non compos was confined in an asylum in South Carolina and it was sought to serve the purpose of summons and notice by appointing a guardian ad litem without more. But this court held that jurisdiction had not been acquired. Here the recital makes a different case. The recital is presumed to be true. It must be treated seriously. So treated, it means nothing less than that appellant was in court and had opportunity to present any defense against the inquisition that he was capable of making.

We conclude that the failure of the sheriff to take Ruby J. Prestwood into custody did not oust the court of jurisdiction in this case.

II

Appellant further argues that her hearing was not conducted with reasonable dispatch and continuity, and cites the requirement of Code 1975, § 26-2-42(a) that a petition to declare one incompetent must be set for hearing not more than 30 days from its presentment. She also cites this Court’s decision in Walker v. Elrod, 284 Ala. 32, 221 So.2d 391 (1969), as support of her contention that the legislature intended that inquisition proceedings should be expedited, and that the legislature has allowed the probate court “great elasticity” to carry out this policy.

Appellant, although recognizing the universal rule that the granting of a continuance rests with the sound discretion of the trial judge, nevertheless contends that public policy demands that a trial once entered upon should continue from day to day until concluded, unless exigencies of the cause or the public interest imperatively require a reasonable adjournment.

The facts surrounding the adjournment of the hearing of which the appellant complains are not disputed. The first hearing was set for June 7, 1979, but was not held until June 21, 1979, when the petitioners presented testimony tending to prove the incapacity of Ruby J. Prestwood. On that same day, counsel for Ruby J. Prestwood presented the testimony of six witnesses to prove her competency. The testimony was not concluded on that day, and the probate judge reset the trial for July 13, 1979. On July 12,1979, the probate judge, on his own motion, continued the case indefinitely because of the illness of a juror. On August 23, 1979, he rescheduled the cause for August 30, 1979, and it was concluded on that day over the objection of Mrs. Ruby J. Prestwood, who moved for a mistrial because of the inordinate delay. Appellant argues that several important witnesses, including her dentist and a psychologist, had testified regarding her mental condition at the June 21, 1979 proceeding and that the jurors could not be expected to have remembered the important details of this testimony when the hearing was reconvened on August 30, 1979.

The crucial question presented by these facts is whether the adjournment of the hearing constituted a denial of procedural due process. We do not think that it did.

We agree with appellant that inquisition proceedings should be conducted with reasonable dispatch. We cannot agree with her, however, that the probate court was bound to grant her request for a mistrial. The general rule regarding such matter is stated in 88 C.J.S. Trial, § 45 (1955) at p. 115:

Where a juror or a material witness becomes ill, or a member of a juror’s family dies, just before or during a trial, the court has discretion to adjourn until a suitable time, and then to proceed with the trial, instead of discharging the jury and declaring a mistrial or ordering a dismissal.

In Alonzo v. State ex rel. Booth, 283 Ala. 607, 219 So.2d 858 (1969), the Court said:

In Alabama, our courts have always held it is discretionary with the trial court whether it should halt or suspend the trial to enable a party to secure or produce witnesses in court. See, cases at 6A, Ala.Dig., Criminal Law, Key 649, (1), (2), and (4). And, in the exercise of that discretion the trial court is not to be reversed save for gross abuse of discretion.

We find no gross abuse of discretion in this case.

Ill

Next, appellant argues that it was a denial of due process and equal protection to deny her the right to appeal to the circuit court for a trial de novo. Code 1975, § 12-22-20, states:

An appeal lies to the circuit court or supreme court from any final decree of the probate court, or from any final judgment, order or decree of the probate judge, and, in all cases where it may of right be done, the appellate court shall render such decree, order or judgment as the probate court ought to have rendered. (Code 1867, § 2247; Code 1876, § 3957; Code 1886, § 3640; Code 1896, § 457; Code 1907, § 2855; Code 1923, § 6114; Code 1940, T. 7, § 775.)

Section 12-22-20, quoted above, allows an appeal to this Court or to the circuit court. It does not allow a trial de novo, with jury, in the circuit court, as appellant contends. The attempted appeal for a trial de novo was properly dismissed.

After her attempt to appeal de novo was denied, Ruby J. Prestwood then sought, and has gotten, her statutory right of review in this Court. Appeal directly to this Court is proper and must not deprive appellant of her due process or equal protection rights.

Appellant argues alternatively that, even recognizing that a trial by jury is not required in a lunacy proceeding, that once a jury is provided it must meet fundamental constitutional requirements. She claims that the procedure for selecting the jury does not give her a right to strike. She is correct that Code 1975, § 26-2-44, contains no specific procedures for striking jurors; nevertheless, the statute does authorize the setting aside of jurors for cause, thereby recognizing the right of the parties to challenge a member of the proposed jury for cause. In this proceeding, it appears from the record that the attorney for the appellant questioned the jurors as to qualifications, but did not challenge any of the jurors. We find no error here.

Appellant also argues that giving the sheriff the authority to select “six disinterested persons of the neighborhood” violates the cross-section requirement applicable to the selection of jurors.

This is another due process argument, and in order to answer this argument, we look to the entire record to determine what transpired. The record is clear that appellant was afforded notice and a hearing and was represented by eminently qualified counsel, had an opportunity to confront and cross-examine witnesses, and an opportunity to be heard and present evidence. She also had a right to determine whether the jurors were, in fact, “disinterested.” Because she was afforded all these fundamental procedural safeguards, we cannot agree that her procedural due process rights were violated.

IV

Issues three and four raised by the appellant, which relate to the alleged error committed by the trial judge in refusing to give certain charges, have not been properly preserved for consideration on appeal. Under Rule 51, ARCP, “[n]o party may assign as error the ... failing to give a written instruction ... unless he objects thereto before the jury retires to consider its verdict.” It does not appear from the record that the appellant made any objection to the charges to the jury. We realize that this proceeding was in the probate court, but according to Rule 1, ARCP, the Alabama Rules of Civil Procedure apply in probate courts “exercising statutory equitable jurisdiction.” The probate court was exercising such jurisdiction pursuant to Code 1975, § 26-2-40 et seq. Therefore, the error complained of in appellant’s issues three and four has not been properly preserved for purposes of this appeal.

V

Finally, appellant argues that the summary denial of her motion for a new trial violated due process and equal protection considerations. As stated in Smith v. Smith, 254 Ala. 404, 48 So.2d 546 (1950):

Where there is evidence which if believed justifies the verdict, a motion for new trial is properly overruled.

Therefore, based upon the foregoing, the judgment of the probate court is due to be affirmed.

AFFIRMED.

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