text:
    Donald Eugene BUFORD v. JITNEY JUNGLE STORES OF AMERICA, INC.
    No. 52105.
    Supreme Court of Mississippi.
    Sept. 17, 1980.

      Mike L. Cordell, Miller, Dean & Cordell, Howard Dyer, III, Greenville, for appellant.
    Roy D. Campbell, Jr., Campbell & De-Long, Greenville, for appellee.
    Before BROOM, LEE and COFER, JJ.
   BROOM, Justice, for the Court:

Personal injury tort action is the nature of this action brought by the plaintiff/appellant, Donald Eugene Buford, against the defendant/appellee Jitney Jungle Stores of America, Inc. in the Circuit Court of Washington County. There a directed verdict was given against the plaintiff when he rested, and now he appeals. The chief issue is whether or not the plaintiff made out a sufficient case of negligence to go to the jury; he contends that he did. We affirm the judgment upon the directed verdict.

From the top (deck) of a large walk-in refrigerator in the Jitney Jungle store in Greenville, Mississippi, at approximately 4:00 a. m. June 7,1977, the plaintiff fell and suffered serious injuries. At the time, he was a professional electrician of many years experience. In his suit, he alleges that his injuries resulted from the negligence of Jitney Jungle in failing to use reasonable care to provide him with a reasonably safe place to work or in failing to give him any warning of the danger which he alleged existed on top of the refrigerator from which he fell.

The facts are largely undisputed. Jitney Jungle’s agent, Bill Bass, acting for Jitney Jungle requested the plaintiff to install a timer device on a compressor situated on top of the walk-in refrigerator which was located outside the Jitney Jungle store. The plaintiff followed Bass up there and, from a squatting position, he stood up. In so doing he apparently caught his heel on or under a pipe causing him to lose his balance and fall over the edge and down to the concrete some ten feet below. No lights or light fixtures were installed or located on top of the refrigeration unit where service work was done from time to time at night. Other facts will be stated as appropriate herein.

Our rule, which is so well established as not to need any authority is that we consider only the evidence offered on behalf of the plaintiff in deciding whether a directed verdict should be given against the plaintiff. If that evidence considered as true along with all reasonable inferences which could be drawn from it favorably to the plaintiff could support a verdict for him, no directed verdict should be allowed. The undisputed facts before us show that plaintiff was a licensed, independent electrical contractor having worked as such for a number of years. On the occasion in question he fell from the top of the refrigeration unit which apparently is about ten feet high and about ten feet wide; testimony concerning the length varies from about eighteen feet to considerably longer. The unit had been installed against the South end of the Jitney Jungle building about 1975, and on top of it a row of six compressors had been installed about two feet back from the outside edge of the unit’s deck. When the compressors were installed, the plaintiff worked on them, installing the wiring and running the electrical conduits to them. The conduit pipe coming out of the wall was installed by the plaintiff and it seems to be the pipe upon which he caught his foot resulting in his fall on the occasion in question. Since 1975, plaintiff has been back on top of the unit in daylight. According to him, however, the only previous time he had been there at night was in 1975 on which occasion there were temporary drop lights shining there for use by refrigeration workers.

In this case, both parties agree that the proper rule is as stated in Mississippi Chemical Corp. v. Rogers, 368 So.2d 220, 222 (Miss.1979):

The owner [or possessor] of a building owes a duty to an independent contractor to furnish a reasonably safe place to work or give warning of danger. (Emphasis added).

Jitney Jungle in its brief admits that either the employer must furnish workmen, including an independent contractor such as the plaintiff here, with a reasonably safe place to work or give warning of the danger. Continuing, Jitney Jungle takes the position that:

[T]here is no duty to warn with respect to a fact or situation or condition which is obvious and is as well known to the invitee as to the invitor. Knowledge is notice.

The facts here show that about 3:00 p. m. on the day preceding the injury, plaintiff had been up on the refrigeration unit in question. He had wired a small new compressor which had recently been situated by Jitney Jungle’s employee, Bass, about a foot and a half from the edge of the top of the unit in line with the several, old compressors previously installed there. After going up there in the afternoon, plaintiff and his son went home but returned to the store in the early part of the night during which time he would work in order not to interfere with the store’s operations. Plaintiff admits that when he was up there during the afternoon, he saw the electrical conduits on the floor which he had previously installed, and on this basis, Jitney Jungle argues:

There was no hidden or undisclosed condition concerning which Appellee failed to warn appellant. Appellee was not required to give Appellant warning of what he already knew and what was obvious, i. e., if he were careless, as unfortunately he was, he might fall and be injured.

The plaintiff argues that the position of Jitney Jungle is not well taken because, according to the plaintiff, he had only been there on top of the walk-in refrigeration unit at night one time which was in 1975, and on that occasion he says that the refrigeration men working there had drop cord lights on top of the unit. He further testified that the lights that had been provided by Jitney Jungle on this prior occasion gave “plenty of light to work by” on top of the refrigeration unit. He testified that:

Q. On this night that you got hurt when you were going up there with Mr. Bass, did you know whether or not any lights were up there at that time?
A. Not really. I took it for granted there would be, because his men had been working there earlier, and they had run refrigeration lines downstairs, so I’m sure they had to have lights there.
BY MR. CAMPBELL: Now, if the Court please, we want to object to the witness speculating as to what he believes or he’s sure.
BY THE COURT: The objection is sustained. The jury will disregard that last statement. That’s pure speculation, unless he knows.
Q. (Mr. Cordell, resuming:) Mr. Buford, when did you find out there was no light up there?
A. When we went up to check and see where the time clock had to go. At this time, there wasn’t any light up there to turn those drop cords on.
Q. You found out after you got up there?
A. Right.
Q. All right. What was going to have to be done to install this timer?
A. Well, with no light up there, I would have to go back down and get an extension cord and drop my drop cord, and a drill and some bolts, and a piece of flexible conduit and some wire.
Q. You were going to have to drill something?
A. Right. We were going to have to drill a hole to mount the time clock.
Q. Would you have to have a light to do that?
A. Right.
Q. Mr. Buford, would you describe the floor of this refrigeration unit on the night that you got hurt?
A. Well, of course, I couldn’t see it that good that night, but when I was up there the day before, when I wired that compressor in, there was pipes, electrical pipes and copper lines, all running across it up there. .

The plaintiff places much reliance upon Ingalls Shipbuilding Corporation v. McDougald, 228 So.2d 365, 367 (Miss.1969) where we held that Ingalls’ “failure to have the aft deck of the vessel lighted” was sufficient evidence to justify the jury in finding that Ingalls was guilty of negligence. It is true that the present case has similarities to Ingalls which recognizes “the alternative duty of (a) providing a reasonably safe place to work or (b) giving warning.” Nevertheless, Ingalls differs substantially from the present cas e-Ingalls involved a slippery condition (latent or not readily discernible by the naked eye) of the deck created by the existence of a coat of preservative which had been there since the ship was a part of a “mothball” fleet. In Ingalls, inspection of the surface of the deck by a flashlight failed to reveal the slippery condition; there Ingalls had provided a string of lights over the stern of the vessel but failed to have the lights turned on when the accident occurred. Ingalls, as distinguished from the present case, presented a latent or at least not a readily observable condition upon which negligence was based rather than a condition of which the plaintiff had knowledge.

In the present case, the plaintiff in 1975 had worked on top of the refrigeration unit’s deck when he wired the old compressors. The testimony of the plaintiff here is clear. On the afternoon before the unfortunate accident, he was upon the deck wiring a new small compressor-during this time he saw the electrical conduits (copper pipes) he had previously worked on. In addition to this, he had been back on the refrigeration deck at other times and had walked across the deck to the breaker box against the South wall of the store.

Careful analysis of the evidence before us shows that the accident in which the plaintiff was injured occurred when he stood up from a squatting position and moved his heel causing it to come in contact with the conduit pipe which he himself had installed across the deck. According to his testimony, he “supposed” he was aware of the conduit on the night when he was injured, but as he stood up, he forgot it was there and moved his right foot against it. Another important aspect of the plaintiff’s testimony is that, according to him, as he ascended the ladder that night and as his head reached the level of the deck from which he fell, he could see that there was no light upon the deck other than the flashlight carried by Bass. Obviously at that time in the exercise of reasonable care in his own behalf he could have gone back to his nearby truck and taken therefrom either a flashlight or a drop cord light. He testified that it was routine for him as a professional electrician to carry and have available inside his truck a drop cord light and a flashlight.

In the case before us, plaintiff was as knowledgeable as Jitney Jungle’s agent Bass with the conditions on top of the refrigeration deck: the absence of a light and the presence of the small compressor. This record does not present any situation of a hidden, latent, or undisclosed condition concerning which Jitney Jungle failed to warn or point out to the plaintiff. Under the case law as cited, there is no rule in this jurisdiction requiring the owner or possessor of the premises in question to warn an independent professional electrical contractor of that which was already known to him. Similar questions were involved in Mississippi Chemical Corp., supra, at 222, where Justice Sugg in writing for the Court stated:

We also recognize the rule that knowledge of danger by an independent contractor relieves the owner from the duty of warning the independent contractor or his employees. In Jackson Ready—Mix Concrete v. Sexton, 235 So.2d 267, 271 (1970), we said:
Closely related to this exception is the rule that the owner is not liable for death or injury of an independent contractor or one of his employees resulting from dangers which the contractor, as an expert, has known,

Here the condition or situation which resulted in the plaintiff’s unfortunate injuries were items of which he had knowledge. Under those circumstances, Jitney Jungle was not required to warn him of the existing situation which was as well known to the plaintiff as to Bass, Jitney Jungle’s agent. No breach of Jitney Jungle’s duty is established by the evidence when construed most favorably to the plaintiff, and accordingly the action of the lower court in directing a verdict was correct. No other argument made merits discussion.

AFFIRMED.

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

PATTERSON, C. J., takes no part.


source: Caselaw Access Project

license: Public Domain

text:
    AUDITOR OF PUBLIC ACCOUNTS, State Auditor of Mississippi, v. CONSUMER CREDIT PLAN, Consumer Discount Company d/b/a Commercial Credit Plan.
    No. 52142.
    Supreme Court of Mississippi.
    Sept. 17, 1980.
    Bill Allain, Atty. Gen., by R. Lloyd Arnold, Sp. Asst. Atty. Gen., James H. Haddock, Jackson, for appellant.
    Henderson S. Hall, Jr., Wise Carter Child & Caraway, Jackson, for appellee.
    Before ROBERTSON, WALKER and BROOM, JJ.
   ROBERTSON, Presiding Justice, for the Court:

The Auditor of Public Accounts of the State of Mississippi has appealed from the judgment of the Chancery Court of the First Judicial District of Hinds County ordering him, as State Auditor, to refund to Commercial Credit Plan (CCP) $66,603.48, the additional privilege tax assessed against CCP, which amount had been paid under protest to the State Tax Commission.

This case involves the construction of MCA section 27-21-5 (1972):

“The annual rate by which the amount of the tax hereby levied shall be computed shall be one-fourth of the one per centum of the total amount of indebtedness secured by tangible property located in the State of Mississippi.” (Emphasis added).

In deciding this case, the crucial word in § 27-21-5 to be construed is “indebtedness”. In Webster’s Third New International Dictionary (1971), “indebtedness” is defined as “the extent to which one is indebted; something (as a sum of money) that is owed.”

The extent to which the borrower is indebted in the CCP form of note is stated in this way:

“FOR VALUE RECEIVED, Borrowers, jointly and severally, promise to pay to the order of the above Lender, at its office shown above, the Amount Financed shown above, together with finance charges from Date of Loan shown above, at the Agreed Rate of Charge shown above, payable in equal, consecutive monthly payments in the amount shown above, beginning on the First Payment Date shown above and continuing on the same day of each succeeding month until amount financed and finance charges are paid in full. Every payment shall be applied first to finance charges, computed in full to date thereof, and the remainder to the amount financed.” (Emphasis added).

In the CCP note, evidencing an actual loan made on February 28, 1978, by the Ellis Avenue, Jackson, Mississippi, office, under the heading “Amount Financed” is “$3400.00.” Under the heading “Annual Percentage Rate” is “18.00%”.

In his affidavit attached to CCP’s petition for appeal and review filed in the Chancery Court, H. D. Mulholland, division manager for the Southern Mississippi Division of CCP, explained the entries on the ledger card of this actual loan (this ledger card being attached to his affidavit):

“b. The principal amount of the note is $3,400.00, called the ‘AMOUNT FINANCED’ on the face of the note and the ledger card. The interest (called ‘FINANCE CHARGE’) that will be paid over the life of the loan (36 months) is ‘estimated’ to be $1,042.76. However, as can be seen by the record of the eight payments made at the bottom of the ledger card, the interest charged varies precisely with how long the borrower has had the use of the principal outstanding balance. For example, the ledger card shows that the sixth payment was made on September 29, 1978, forty-four days after the fifth payment, which was made on August 15, 1978. The sixth payment of $122.91 was applied, $67.45 to interest and $55.46 to principal reduction. The $67.45 is 18% interest on the principal outstanding balance of $3,065.95 for forty-four days. After the sixth payment, the principal outstanding balance was reduced to $3,010.49.
“c. The seventh payment made on October 17, 1978, was made only 18 days after the sixth payment. Consequently, the interest charged is smaller than that charged in the sixth payment ($27.09 compared with $67.45) and the reduction of the principal outstanding balance is larger ($95.82 compared with $55.46).
“9. The method described above for computation of interest is used in all of the 26 CCP offices for loans secured by tangible personal property in Mississippi.”

The usual “interest-bearing note” contains this type provision:

It is expressly understood and agreed that each payment upon this note, as and when made, shall be applied first to all interest accrued to the date of such payment and then to the principal of this note.

That is exactly the method used by all 26 CCP offices in Mississippi in applying the monthly installments paid on “loans secured by tangible personal property in Mississippi.”

Appellant contends that the decision in this case is mandated by the decision rendered in ABC Finance Corporation v. Auditor of Public Accounts, 339 So.2d 555 (Miss. 1976). ABC is readily distinguished from this case. There are fundamental differences between the ABC form of note and the CCP form of note. The indebtedness (the obligation of the borrower to the lender) in the ABC form of note is expressed in this language:

“Borrower promises to pay to the order of Lender the ‘total of payments’ stated in (a) below.” (Emphasis added).

(a) of the ABC note provides:

“Total of Payments $1,920.00
FINANCE CHARGE $ 551.01
ANNUAL PERCENTAGE RATE 34.85%
Amount Financed $1,368.99”

The ABC note provides for a pre-comput-ed “FINANCE CHARGE”. This finance or interest charge is computed for the entire period of the loan and the borrower promises and obligates himself to pay the “Total of Payments” which includes the pre-com-puted finance charge. In contrast, the CCP note is a true interest-bearing note, wherein the borrower obligates himself to pay the “AMOUNT FINANCED” which is the principal of the note. The monthly installment on the CCP note is applied first to the interest accrued to the date of payment and then to principal. The only reason there is an “Estimated Finance Charge” on the CCP note is that the Federal Truth in Lending Act requires that the borrower be advised of what the interest or finance charge will be if the note is paid according to its terms over the entire period of the note.

The term “the total amount of indebtedness” used in § 27-21-5 means, according to the express language of the ABC note, the “Total of Payments” which includes the “Finance Charge”. In stark contrast, “total amount of indebtedness” means, according to the express language of the CCP note, the “Amount Financed” which does not include the “Estimated Finance Charge.”

We are of the opinion that the chancellor correctly construed the language of the statute, as it applied to the CCP note, and thus was correct in his judgment that the Auditor of Public Accounts should refund to CCP the $66,603.48 additional privilege tax paid by it under protest to the State Tax Commission.

AFFIRMED.

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

PATTERSON, C. J., took no part.


text:
    In the Matter of the EXTENSION OF the BOUNDARIES OF the CITY OF RIDGELAND, Ms., CITY OF JACKSON, Ms. and town of Madison, Ms. v. CITY OF RIDGELAND.
    No. 52241.
    Supreme Court of Mississippi.
    Sept. 24, 1980.

      William F. Goodman, Jr., Richard F. Scruggs, Watkins & Eager, Howard C. Ross, Jr., Jackson, for appellant.
    C. R. Montgomery, S. F. Stater, III, Montgomery, Smith-Vaniz & Stater, Canton, for appellee.
    Before ROBERTSON, P. J., and LEE and BOWLING, JJ.
   ROBERTSON, Presiding Justice, for the Court:

This is an annexation suit tried by the Chancery Court of Madison County. The City of Ridgeland, Mississippi, a municipal corporation, petitioned the court for approval, ratification, and confirmation of its ordinance enlarging and extending its municipal boundaries to include four areas, designated Tracts I, II, III and IV. Because the required statutory notices were not posted in Tracts I and II, the court removed these tracts from further consideration for annexation.

After a full hearing, the chancellor overruled all objections of the sole objector, City of Jackson, Mississippi, and after disallowing the annexation of Tract IV, decreed the annexation of Tract III with these exceptions:

(1) All lands lying north of the center line of Rice Road;

(2) All lands owned by Pearl River Valley Water Supply District, which lands were described by metes and bounds in the rebuttal testimony of Tom Barth; and

(3) All lands lying east of the aforesaid lands owned by the Pearl River Valley Water Supply District and south of the center line of Rice Road.

The chancellor found that such enlargement and extension was:

“[Reasonable and required by public convenience and necessity and that reasonable public and municipal services will be rendered to the area allowed to be annexed within a reasonable time; that the enlargement herein allowed is in the best interest of the City of Ridgeland and the residents and property owners of that territory allowed to be annexed hereby and to be included within the municipal boundaries of the City of Ridgeland, Mississippi, . . . ”

The criteria to be applied in annexation cases was recently restated by this Court in Extension of Boundaries of Horn Lake v. Renfro, 365 So.2d 623 (Miss.1978), in this way:

“(1) The municipality’s need for expansion; (2) Whether the area sought to be annexed is reasonably within the path of growth of the city; (3) The potential health hazards from sewage and waste disposal in the annexed area; (4) The municipality’s financial ability to make the improvements and furnish municipal service promised. Lowe v. City of Jackson, 336 So.2d 490 (Miss.1976); Bridges v. City of Biloxi, 253 Miss. 812, 178 So.2d 683 (1965); Dodd v. City of Jackson, 238 Miss. 372, 118 So.2d 319 (1960).
“Other factors that have been considered by the Court are: (5) The need for zoning and overall planning in the area; (6) The need for municipal services in the area sought to be annexed. Smith v. City of Meridian, 237 Miss. 486, 115 So.2d 323 (1959); (7) Whether there are natural barriers between the city and the proposed annexation area; and (8) The past performance and time element involved in the city’s provision of services to its present residents. City of Biloxi v. Cawley, 332 So.2d 749 (Miss.1976).” 365 So.2d at 624-25.

The burden of proving reasonableness as measured by these criteria was upon the petitioner, the City of Ridgeland. Dodd v. City of Jackson, 238 Miss. 372, 118 So.2d 319 (1960).

In his opinion, the chancellor summarized and tabulated the City of Jackson’s objections:

(1) These tracts are not within Ridge-land’s path of growth but are in Jackson’s path of growth.

(2) The portion of tract III which adjoins Ridgeland’s eastern boundary has shown no substantial growth or development in the past and the growth and development in tract III has been on the east side thereof.

(3) Ridgeland has sufficient undeveloped land within its present corporate limits to accommodate its future growth.

(4) Ridgeland has not provided reasonable services to certain areas annexed by it in 1975.

(5) Jackson would be adversely affected by permitting Ridgeland this annexation.

Chancellor E. G. Cortright answered Jackson’s objections in this way:

“There has been a material change in the facts since the 1975 annexation case: (1) There has been substantial residential development within the City of Ridgeland and much of that development has been in the southern and eastern portion of the City. This development is continuing and appears to be moving toward Ridgeland’s southmost eastern boundary and the area in tract III sought to be annexed. (2) The area between Ridgeland’s eastern boundary and the Old Canton Road, which the court previously found to be basically pasture and woodlands, is beginning to develop. All of the experts seemed to agree that substantial further development is imminent. (3) The area east of the Old Canton Road has sustained substantial residential growth since January of 1975 and is continuing to experience such development. The picture which the court had before it in 1975 is not the one which now appears. The total development of both south Ridge-land and all of tract III, except the east-most edge thereof, is now assured. ■
“. . . Section 32 is clearly positioned for near term development. This area joins present Ridgeland and it seems prudent that it be under Ridgeland’s control if orderly development therein is to be promoted. It is important that growth along the east side of Ridgeland’s present boundary be coordinated with that portion of Section 32 which now is unincorporated. The present absence of roads into the interior of Section 32 is understandable and is of no substantial significance. Future roads into the area will inevitably coincide with the future development. Logically, the area would be better served if the location of such interior roads were in the future coordinated with the location and types of developments to be positioned in the area. There are good main roads around this area sufficient to accommodate interior developments. The present development of a substantial water system by Ridge-land around the periphery of this tract puts the City in an advantageous position to assist in developing the area as its needs arise. To view that portion of Section 32 that is now outside of Ridgeland as undeveloped is not to recognize a true picture-as the fringes of the area are developing at a rapid rate. A salutary purpose of annexation is to bring in an area before it is totally developed in order to assure its controlled growth and development. As was stated in Dodd vs. City of Jackson, 238 Miss. 372, 118 So.2d 319 (1960):
[Wjhere it can be reasonably anticipated that a certain area will become a part of a city in a reasonable time, it is better to take it in and develop the same properly and wisely, with particular reference to a uniform system for securing water, the development of streets, and the collection and disposal of sewage and waste, rather than to let the area develop in a harum-scarum manner as each builder or developer may determine.
“Although recognizing that tract III is a rapidly growing area and is also within its own path of growth, the City of Jackson has not sought to annex the area. On the contrary, Ridgeland’s interest in tract III has been active and longstanding and has manifested itself in the extension of its municipal services to the area. It has not only provided water and some sewage facilities, but it has lent its resources other ways-such as fire fighting, courtesy police investigation, emergency services and consultation on residential development. Tract III is already using Ridgeland’s municipal services as to water and sewage. The City is now responding to fire and rescue calls in the area. If the area were annexed, substantial reduction in fire insurance rates would result to those annexed. The fire department of Ridgeland now consists of a substantial number of volunteers, but they appear well equipped and trained and are adequately meeting the needs of Ridgeland. There is no reason to believe that an expansion of the fire department would not follow any annexation. A new fire station and police department in tract III is already contemplated and would be centrally positioned to serve the needs of the existing town and tract III. The already existing water lines of Ridgeland into the populated portions of tract III lends assurance to the City’s ability to perform adequately in this area. in
“Ridgeland as it exists is unquestionably a small town but it is one that has sustained rapid growth in recent years. Furthermore, it has kept up with its growth in a progressive way as evidenced by the many facts testified to about its governmental organization and services. It has a municipal judge; it has had a recent professional appraisal of its realty; it has well organized and equipped fire and police departments; a building inspector and a comprehensive zoning ordinance. The departments of the City appear to be working well and fully cognizant of their responsibilities.
“It should be both recognized and emphasized that not a single person residing in the areas proposed to be annexed or owning property or operating businesses therein objected to the proposed annexation. In a positive way this is a reflection of the attitude of the people in the proposed areas toward the services presently furnished to them by Ridgeland and those they anticipate if annexed. Furthermore, the unanimous vote of the aider-men of Ridgeland in the adoption of the annexation ordinance must not go unnoticed. To at least some extent, this merits consideration. In this regard our Supreme Court said in In Re Extension of the Boundaries of the City of Indianola, 226 Miss. 760, 85 So.2d 212 (1956):
[Ajlthough the Chancellor was not bound by the adjudication of the Mayor and- Board of Aldermen that the proposed extension was reasonable, and had the right to determine for himself whether the extension was reasonable and was required by the public convenience and necessity, we think he was entitled to give some weight to the opinion of the city authorities whose responsibility it was to determine whether or not they were justified in asking the approval of the Chancery Court of the ordinance here involved which they had adopted subject to the court’s approval.
See also Picayune vs. Quick and Grice, 238 Miss. 429 (1960).
“The point is raised by Jackson that a certain area of Ridgeland west of Highway 51 and east of the present corporate limits which was annexed in 1975 has not yet been provided adequate municipal services. It is true that this relatively small area is still sorely in need of sewage disposal and adequate streets, but it also appears that Ridgeland has not been unaware of the plight' of this area and the City’s long range plans for improvements are near fruition. Ridgeland has brought its sewer main up to the area and is only awaiting approval of a grant before building sewer lines in the area. Ridge-land stands ready to pave the streets as soon as the sewer lines are laid. It is to Ridgeland’s credit that it annexed this blighted area and assumed a responsibility which probably represented a liability to the City.
“Jackson also raises the point that there are no recreational areas presently planned by Ridgeland in tract III. However it must not be overlooked that the eastern portion of tract III abuts the Ross Barnett Reservoir which is a substantial recreational area in its own right. Furthermore, the City plans a recreational park on the west side of tract III in conjunction with its proposed fire and police facilities. Although not touched upon by the evidence, common knowledge tells us that subdivision developments of the character and size presently seen and being developed in tract III often incorporate neighborhood recreational facilities of varying degrees.
“Jackson, with understandable logic, presents the argument that tract III is in its path of growth and not that of Ridge-land. The court is not so naive as not to recognize that many of the inhabitants of tract III (and probably Ridgeland as presently constituted) work in the Jackson metropolitan area and use many of the municipal facilities which Jackson has to offer. This is true of many who live even a more substantial distance from Jackson than Ridgeland. It must not be forgotten, however, that citizens of many towns and cities who take only occasional use of Jackson’s cultural advantages leave substantial sums with Jackson merchants and which ultimately inure to the benefit of the City of Jackson. I take no issue with the argument that tract III is within Jackson’s path of growth. The truth is that all areas immediately surrounding Jackson are in its path. While the path of growth factor is not the only one to be considered in determining the reasonableness of annexation, I do feel that tract III is in a less definitive way also in Ridgeland’s path of growth. There is no doubt that Ridgeland itself is growing toward tract III as evidenced by development in the southern portion of that City. The extension of Ridgeland’s utility services into tract III has greatly contributed to development in that area. To neither Ridgeland’s credit nor Jackson’s credit the proximity of the Reservoir has probably contributed to the area’s growth.
“The fears of Jackson in being ultimately restricted from future annexation through encirclement by small municipalities is understandable. This would result in it being stymied from further development of its tax base. However, Ridge-land itself stands to have its growth thwarted by both natural and political barriers. To the south it is limited by Jackson. To the north it is limited by the Natchez Trace and the Town of Madison; and to the west by Interstate 55. Growth to its east will be ultimately restricted by the Reservoir. Jackson’s plight in this regard is not as serious as it may suspect. Even if Ridgeland was denied this annexation and Jackson was later to acquire tract III and Section 29 which adjoins it, Jackson’s growth to the north in this particular area would still be blocked by the Town of Madison. On the other hand, Jackson’s growth to the north in the areas west of Ridgeland is unimpaired.
“Ridgeland appears to be in good financial condition and able to furnish the area hereinafter permitted to be annexed with municipal services. Although the City has a considerable bonded indebtedness, it also has substantial cash on hand. Included within that indebtedness are sums now allocated for substantial street improvements within the City. With the added revenue from annexation, the City should have no difficulty in providing proper services to the annexed area.”

We are of the opinion, after a careful study of the voluminous record (13 bound volumes containing 2030 pages, plus numerous exhibits too big to be bound into the record), that the proof adduced amply supports the findings and conclusions of the chancellor that the City of Ridgeland should be allowed to extend its municipal boundaries as outlined in the court’s decree.

The Final Decree Approving, Ratifying and Confirming the Enlargement and Extension of the Municipal Boundaries of the City of Ridgeland, Madison County, Mississippi, is, therefore, affirmed.

AFFIRMED.

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

PATTERSON, C. J., took no part.


author: SUGG, Justice, for the Court:

text:
    Eric COLEMAN v. STATE of Mississippi.
    No. 52012.
    Supreme Court of Mississippi.
    Sept. 24, 1980.
    Jerry L. Mills, Johnson & Mills, Clinton, for appellant.
    Bill Allain, Atty. Gen. by Catherine Walker Underwood, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before SMITH, P. J., and SUGG and COFER, JJ.
   SUGG, Justice, for the Court:

Eric Coleman was convicted in the Circuit Court of the First Judicial District of Hinds County for the unlawful sale of cocaine, and was sentenced to serve a term of twelve (12) years with seven (7) years suspended, plus a $2,000 fine.

On appeal, Coleman assigns as error: (1) the refusal of the trial court to permit him to question his codefendant, Connie Thompson, in the presence of the jury; (2) the indictment failed to allege the commission of a crime; and (3) the state failed to meet the burden of proving each and every element of the crime.

L. C. Russell, a member of the Jackson Police Department, testified that Coleman sold him four packets of cocaine for the sum of $200 on April 7, 1978, and that both Coleman and Connie Thompson participated in the sale. Russell said he discussed the price and quality of the cocaine with Coleman while Connie Thompson assisted in passing the cocaine and money back and forth between him and Coleman. The state proved that the substance sold to Russell contained cocaine. Officers Malone and Fitzgerald observed the scene of the sale from their surveillance position across from the Palm Garden Lounge. They were able to determine that the car in which the sale took place was registered to Coleman.

Coleman testified that he took his lover, Connie Thompson, to the Palm Garden Lounge on April 7, 1978 at her request where they were met by a man called Derrick and Officer Russell. Coleman denied that he either possessed or sold cocaine on that occasion. He said Derrick tried to hand him some money while Connie Thompson was out of the car but withdrew it when Coleman asked what the money was for, and that Derrick handed the money to Connie Thompson when she returned to the car.

Coleman testified that he went to see Connie Thompson about 4:00 o’clock p. m. on April 7 while she was at work. He stated that Connie had just obtained a cash loan of $300 which she asked him to keep for her until she got off from work. Coleman said he went to his apartment, left his wallet in the apartment, and went to the laundry room about 7:00 o’clock p. m. While he was in the laundry room he claims that an unknown person entered his apartment and stole his wallet which contained the $300. He reported the theft to Connie but said she was upset and did not believe him; nevertheless, she called him about 10:30 o’clock p. m. to take her to the Palm Garden Lounge.

At his trial, Coleman called Connie Thompson as a witness. After testifying that she and Coleman were lovers on April 7, 1978, she was asked if anything unusual happened on that day. At that point, the jury was excused and she was advised of her right to remain silent under the Fifth Amendment to the United States Constitution. She invoked this right during further questioning out of the presence of the jury. Connie Thompson’s attorney was called to the courtroom for the purpose of conferring with her and the court explained to the attorney what had transpired in the following words:

BY THE COURT: It is my understanding that Mr. Gearheard wishes to elicit from this witness the testimony that she obtained a loan from the Veterans Administration Savings & Loan Association of approximately $300.00 on April the 7th, 1978, and that she turned it over to the Defendant, Eric Coleman. That’s the way I understand the testimony. And further that he lost the money and that a quarrel developed between the two, the implication being that she was the one that called the confidential informant or the police.

Connie Thompson’s attorney stated:

BY MR. GILMER: Your Honor, I am informed and believe that she is charged by way of indictment with the same crime on the same day and I would have to instruct her not to answer any questions pertaining to any facts immediately prior to that day with the exception of her name and so forth. I feel like that the inference — to make the record, I don’t intend to prejudice her on that for her day in court.

Coleman’s attorney then stated:

BY MR. GEARHEARD: I firmly believe, Your Honor, that the Jury is given the right to let her claim the Fifth Amendment. This is a case, Your Honor, that’s just very basic. Either Eric Coleman sold the cocaine or Connie Thompson sold the cocaine. If indeed and in fact, which she’s already testified to, that she did receive $300.00 on the day in question and that Eric Coleman misplaced, stole or whatever that $300.00 and she was mad at him and a quarrel ensued and because of this, a call was made to an undercover agent, who called Officer Russell and Russell got the money from Officer Truelove and therefore, to recoup some of the money that was lost, she set up the sale—

The court then refused to permit Coleman to recall Connie Thompson and have her either answer questions or claim her right to remain silent in the presence of the jury. As a result, the jury heard no further testimony from Connie Thompson and did not know she claimed her Fifth Amendment rights.

When this case was tried, this Court had previously considered the right of a defendant to call a witness when it was .known that the witness would claim the Fifth Amendment right to refuse to answer questions. Stewart v. State, 355 So.2d 94 (Miss. 1978). In Stewart, we held it was reversible error to refuse to permit the defendant to call as a witness another person involved in the altercation which was the subject of the criminal prosecution. The fact that the witness would refuse to answer most of the questions asked on the grounds that they might incriminate him was held not to bar a defendant’s right to call and question witnesses in his behalf.

The evidence in this case is conflicting and it shows that either Coleman or Connie Thompson, or both, sold cocaine on April 7,1978. It is the function of the jury to resolve conflicting evidence but in order to perform its function in this case, it was necessary for the jury to hear the testimony of the parties involved in the sale. It was important to the defense to have the jury hear the codefendant either answer questions or else claim her Fifth Amendment rights about her knowledge of the sale of the cocaine. Under Stewart v. State, supra, it was reversible error for the circuit court to refuse the request of Coleman to question Connie Thompson in the presence of the jury and have her either answer relevant questions or claim her Fifth Amendment rights.

Under the second assignment of error, Coleman contends the indictment failed to charge a crime. The indictment charged Coleman with the sale of cocaine in the following language: “Eric Coleman . did wilfully, unlawfully and feloniously sell cocaine to L. Russell . . . ”

Coleman relies on Brewer v. State, 351 So.2d 535 (Miss.1977) where we held an indictment charging the defendant with the delivery of a controlled substance was defective because of an omission of substance. The indictment named preludin as the controlled substance but preludin was not included in Schedule II of Controlled Substances. Section 41-29-115 Mississippi Code Annotated (Supp.1976). The evidence in Brewer showed that preludin contains phenmetrazine which is a Schedule II controlled substance, but we held proof of that fact did not cure the defective indictment and the failure of the indictment to charge that preludin contained phenmetrazine was an omission of substance which could not be cured by proof.

We view Brewer as distinguishable from the present case for two reasons. First, cocaine, unlike preludin, has a well defined meaning. Preludin is a, trade name but cocaine is a derivative of coca leaves. In Webster’s Third New International Dictionary (1971) cocaine is defined as: “A bitter crystalline alkaloid . . . obtained from coca leaves. . . . ”

Second, cocaine is a derivative of coca leaves under section 41-29-115 Mississippi Code Annotated (Supp.1977) which states in part:

The controlled substances listed in this section are included in Schedule II.
SCHEDULE II
(a) Any of the following substances, except those narcotic drugs listed in other schedules, whether produced directly or indirectly by extraction from substances of vegetable origin, or independently by means of chemical synthesis, or by combination of extraction and chemical synthesis:
(4) Coca leaves and any salt, compound, derivative, or preparation of coca leaves, and any salt, compound, derivative, isomer, or preparation thereof which is chemically equivalent or identical with any of these substances, but not including decocainized coca leaves or extractions which do not contain cocaine or ecgonine.

In Bishop v. State, 568 S.W.2d 136 (Tex. 1978) the Texas Court of Criminal Appeals addressed the same question. In that case Bishop argued that his indictment for delivery of cocaine failed to allege an offense because cocaine did not appear in the list of controlled substances. The applicable portion of the Texas Controlled Substances Act is identical to section 41-29-115(a)(4) Mississippi Code Annotated (Supp.1977) except our statute contains the word isomer following the word derivative in (4). In construing the Texas statute, the court stated:

Where this definition specifically includes any compound or derivative of coca leaves but excludes decocainized coca leaves or extractions which do not contain cocaine there is a necessary implication in the definition that cocaine is a derivative of or preparation from, coca leaves. This inference is strengthened by the prior provision of Article 725b, V.A.P.C. (1925) which was the predecessor of the Texas Controlled Substances Act where coca leaves were defined as including “cocaine and any compound, manufacture, salt, derivative, mixture, or preparation of coca leaves, except derivatives of coca leaves which do not contain cocaine . . .”
(568 S.W.2d at 137)

Mississippi’s earlier drug statute, like the one in Texas, alsb stated that “ ‘coca leaves’ includes cocaine . . .” Miss.Gen.Laws Ch. 289 § 2(11) (1936).

We adopt the interpretation of the statute made by the Texas Court and hold that an indictment charging the sale of cocaine is sufficient to charge the sale of a Schedule II controlled substance.

It is not necessary for us to consider the third assignment of error dealing with the quantum of proof because we are reversing and remanding this case for a new trial.

REVERSED AND REMANDED.

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


author: BROOM, Justice, for the Court:

text:
    CITY OF PASCAGOULA, Mississippi v. FIRST CHEMICAL CORPORATION.
    No. 52141.
    Supreme Court of Mississippi.
    Sept. 24, 1980.

      Melvin Mitchell, Pascagoula, for appellant.
    John G. Corlew, Frank J. Hammond, III, Corlew, Krebs & Hammond, Pascagoula, for appellee.
    Before WALKER, BROOM and LEE, JJ.
   BROOM, Justice, for the Court:

Tax exemption benefits at a refinery under Mississippi Code Annotated § 27-31-19 (1972) were unsuccessfully sought by First Chemical Corporation (First Chemical herein) in response to the assessment of the City of Pascagoula (the city herein). After the city rejected First Chemical’s claim of exemption under the statute, First Chemical appealed to the Circuit Court of Jackson County, which court, sitting without a jury, tried the case de novo. The circuit court ruled that the inventory of First Chemical was exempt from ad valorem taxation pursuant to the provisions of § 27-31-19, supra, and the city appeals. We affirm.

Is the materials inventory of First Chemical exempt from ad valorem taxation within the purview of § 27-31-19, supra, which states:

There shall be exempt from all ad valo-rem taxes now levied or hereafter levied by the State of Mississippi, or any county, municipality, levee district, school, or any other taxing district within the state, all oil, gas, and petroleum products, whether produced within or without the state, which oil, gas or petroleum products are owned by a person, firm, or corporation operating a refinery for the refining of oil, gas or petroleum products in the state, and either (1) are in transit to or situated at such a refinery for refinihg thereat; (2) are in the process of being refined at such a refinery; or (3) have been refined at such refinery and are still owned by or in the hands of the refiner. Such exemption shall also extend to such oil, gas and petroleum products owned by any corporation controlled by, under common control with, or controlling such a refiner; provided, however, that the exemption afforded by this section shall not extend to those finished petroleum products incident to regular, normal, and customary marketing operations held in marketing bulk plants or retail service stations.

The controversy arises out of the tax levy adopted by the City of Pascagoula for the year 1978 attributable to taxes for the Pas-cagoula Municipal Separate School District. After the assessment rolls were received by the City Council, First Chemical petitioned the city to reduce any part of its assessment based upon First Chemical’s inventory on the basis that First Chemical’s inventory consisted of exempt petroleum products under § 27-31-19, supra. After a hearing, the city denied First Chemical’s petition. Admitted into evidence as Plaintiff’s Exhibit No. 2 was a certified copy of the personal property rendition form filed for the year 1978. The rendition form showed First Chemical’s business as being “Chemical Manufacturing” and showed that the inventory of First Chemical had a total value of $1,030,033 and consisted of the following products:

Benzene PNT

Toluene O-Tol

Nitric Acid O-MNT

MNB M-MNT

Aniline Meta cuts

MNT

According to the parties’ stipulation, the city used an assessment ratio of 30% for assessment purposes in 1978.

Testifying as an expert for First Chemical was its plant manager John Howell whose opinion was that the products listed on First Chemical’s inventory were petroleum products with the possible exception of nitric acid. In his explanation of the inventory list he stated that benzene is a purchased raw material-a petroleum product. Nitric acid, according to him, is purchased as a raw material derived from petroleum products. He further testified that MNB is mono-nitrobenzene, produced from mixing benzene and nitric acid and then refined into a purer intermediate and sold in small amounts by the company. The nitroben-zene is reacted with hydrogen which results in the product called aniline, which is the major product of the company and comprises approximately 90% of its products. He described the process by which First Chemical produces aniline, and as a part of its operation he said that First Chemical refines or purifies nitrobenzene. He testified that the second primary product of First Chemical is ortho-toluidine constituting approximately 6% of the company’s production and according to him is a petroleum product. First Chemical, as stated by Howell, uses up to four refining processes in its operation, and approximately 70% of its plant is devoted to refining activities.

On cross-examination, Mr. Howell stated that First Chemical does not purchase or use any crude oil at its facility but uses natural gas, propane, and/or butane. His opinion was that First Chemical produces and refines petroleum products and therefore is a refinery.

Also testifying as an expert for First Chemical was Dr. James Mayes who holds a Ph.D. in Chemical Engineering from Johns Hopkins University. He defined a petroleum product as something refined or processed from petroleum. His opinion was that the items listed on First Chemical’s inventory on the third page, benzene, toluene, mono-nitrobenzene, aniline, meta-ni-trotoluene, para-nitrotoluene and ortho-to-luidine are petroleum products. According to Mayes, nitric acid is an inorganic material which is derived from petroleum. He stated that he was familiar with First Chemical’s operation and that its major product is aniline oil, a derivative of benzene, an aromatic compound in a technical sense. This witness stated that aniline oil is a petroleum product, and he described First Chemical’s process as a refinery. First Chemical rested its case after presenting Dr. Mayes.

Contrary to the testimony put on for First Chemical, the city presented Norman Breland, who has a master’s degree in Chemical Engineering. He testified as an expert and was asked whether this facility, as described, is “a refinery for the refining of oil, gas or petroleum products.” His opinion was that First Chemical’s facility was not an oil refinery but instead a chemical process plant. A refinery has to have crude oil as a feed stock according to Bre-land.

With the testimony before him, the lower court found:

[Wjhich inventory assessment was made on account of petroleum products owned by First Chemical Corporation and situated at its facility within the Pascagoula Municipal Separate School District which facility is a refinery for the refining of said petroleum products, and wherein said petroleum products are either situated, or in the process of being refined, or have been refined, all within the provisions of Section 27-31 — 19, Mississippi Code of 1972, and therefore exempt from ad valorem taxation within the Pascagou-la Municipal Separate School District under the provisions of said statute. .

The city takes the position on this appeal that the facility of First Chemical is a chemical manufacturing plant which takes pure benzene and toluene and produces pure aniline as its major product. Argument is that even though purifying, i. e., refining, is carried out in the process, the mere act of performing such purification does not bring the plant and the inventory within the scope of the exemption provided by the subject statute. The city raises the question: What does First Chemical do within its facility and, based thereupon, is it entitled to the exemption it seeks under § 27-31-19, supra ? Both the litigants agree that tax exemption statutes are strictly construed and, when any doubt exists as to whether the exemption applies under a statute, such a doubt must be resolved in favor of the taxing authority and against the exemption. Both the litigants also agree that the purpose of the court in a case of this sort is to construe the statute so as to effect or apply the real intention of the legislature. The city suggests that we should examine the historical background including the proceedings of the extraordinary session of the legislature and the governor’s address which ultimately resulted in the present tax exemption statute. Noted by the city is the fact that the governor in his address proposing certain constitutional amendments and legislation to bring about the tax exemption, used the words “oil refinery.” The city also suggests that we should look to other historical background including the verbiage of other statutes dealing with oil refineries and the like.

Our review of pertinent cases indicates that we may in cases of this sort resort to “legislative history” only in litigation where the statute is ambiguous or unclear.

Summarized, § 27-31-19, supra, grants to a person, firm, or corporation an exemption from all ad valorem taxes levied by a school district for oil, gas and petroleum products, whether produced within or without the state, who: owns such products and operates a refinery for the refining of oil, gas or petroleum products in the state-products which either (a) are in transit to or situated at such a refinery for refining thereat; (b) are in the process of being refined at such refinery; or (c) have been refined at such refinery and are still owned by or in the hands of the refiner.

As the lower court found, careful scrutiny of the wording and language within the statute reveals no ambiguity. On the other land the language clearly reveals legislative intent: to exempt all oil, gas and petroleum products (inventory) owned by any person, firm or corporation operating a refinery for the refining of oil, gas or petroleum products.

First Chemical argues that had the legislators in enacting § 27-31-19, supra, intended to exempt inventory of a crude oil or petroleum facility only, they would have expressed such intent and accordingly limited the statue. Instead of doing this, the legislators saw fit to use language in the statute covering oil, gas or petroleum products.

There can be no doubt in our minds, having carefully studied the statute, that under the testimony introduced First Chemical’s inventory, including the raw materials, in process work, and finished products, consists of petroleum products. The totality of the testimony introduced which was heard and accepted by the lower court establishes that First Chemical employs several refining processes in its production of aniline oil, and in fact uses almost all of the known methods of refining in the various parts of its plant. Clearly the witness Howell testified that First Chemical’s plant both produces and refines petroleum products and therefore is a refinery.

To the same effect was the testimony of Dr. Mayes. Contrariwise, Mr. Breland, accepted as an expert (in behalf of the city) in the field of chemical engineering, after stating that he was not personally familiar with First Chemical’s facilities, gave his opinion that a refinery must have crude oil as a feed stock.

The lower court, as was its burden, after hearing the evidence made a determination that First Chemical operates a refinery for the refining of oil, gas or petroleum products. Additionally, the lower court found that First Chemical’s inventory taxed by Pascagoula consisted of petroleum products which were: in transit to or situated at First Chemical’s facility for refining; in the process of being refined at the refinery; or had been refined there and were still owned by or in its hands. Accordingly, he granted First Chemical the exemption from ad valo-rem taxation, and we cannot upon the record find reversible error.

AFFIRMED.

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

PATTERSON, C. J., takes no part.


author: LEE, Justice, for the Court:

text:
    Shirley A. SEGAR v. GARAN, INC. and Insurance Company of North America.
    No. 52156.
    Supreme Court of Mississippi.
    Sept. 24, 1980.
    Jan R. Butler, Butler & Butler, Eupora, for appellant.
    Velia Ann Mayer, Watkins & Eager, Jackson, for appellees.
    Before ROBERTSON, P. J., LEE and BOWLING, JJ.
   LEE, Justice, for the Court:

The administrative law judge entered an order awarding compensation benefits to Shirley A. Segar being temporary total disability from April 9, 1976, to August 16, 1976, and five percent (5%) permanent partial benefits for the lost use of her right hand, which order was affirmed by the full Commission. On appeal to the Circuit Court of Webster County by Garan, Inc. [Garan] and Insurance Company of North America, the circuit judge reversed the order of the Commission and denied compensation. Mrs. Segar has appealed.

The evidence for the claimant consists of her testimony, the deposition of Dr. Glen Warren, a neurosurgeon who performed surgery on claimant’s right hand, and letters from Dr. Charles Ozborn, a physician, who first saw and diagnosed her injury.

Appellant testified that she worked for Garan approximately three (3) years as an inseam machine operator and that she stuck her thumb into the seamer, felt a sharp pain, and that day notified her supervisor of the accident. Her hand, wrists and arm began to weaken in the period of time following the episode and she was operated on May 18, 1976. She has not worked since the operation, although she was released for work on August 15, 1976.

The real question in this case is whether or not there is substantial evidence to show a causal connection between claimant’s injury and her employment. Dr. Glen Warren, in his deposition, established the fact that claimant incurred a disability and that her permanent partial disability is five percent (5%) of the hand. However, questions were not asked Dr. Warren as to whether or not he could relate that injury to claimant’s work.

Dr. Ozborn, who made the original diagnosis, wrote a letter to claimant’s attorney on November 12, 1977, which letter was introduced in evidence. Pertinent parts of the letter follow:

“This patient was first seen in this clinic on April 2, 1976, complaining of swelling and numbness in her right hand. A diagnosis of Carpal Tunnel Syndrome was made and she was treated with Tanderil and Deltasone which are anti-inflammatory agents used in the treatment of this disorder. . . . Thé initial diagnosis of Carpal Tunnel Syndrome was continued, this being an inflammatory disorder in which the tendons in the wrist area which are bound down by ligaments in a band like fashion surrounding the wrists [become inflamed] due to excessive use especially that might be seen with factory type work where one movement, motion, or job is done continuously causing the reaction to begin. There is no notation in our office records as to the patient relating this to her work; however, it was noted that she was a seamstress and that she has not been able to do her work as well and was aware that her index finger was numb and not functioning well. .
In my opinion, I think that it is entirely possible that this patient’s initial problem did begin as a result of her work. . .
(Emphasis added)

Also introduced in evidence were notes on the prescription forms of Dr. Ozborn. On April 2, 1976, he wrote the following:

“Mrs. Segar has a compression of the median nerve of her right hand-this causes numbness and weakness of that hand. This will probably be corrected with medicine but could possibly require surgery if a rapid response is not achieved. At any rate, full recovery is expected. She should be able to work by Monday.” (Emphasis added)

Appellant did require surgery. The ap-pellee argues that courts deal with medical probabilities rather than medical possibilities and that the medical evidence, together with lay testimony, are not sufficient to establish causal connection between appellant’s injury and her employment.

In Dixie Contractors, Inc. v. Ashmore, 349 So.2d 532 (Miss.1977), in discussing the principle, the Court said:

“Objection of the appellants that the language ‘could have’ speaks only to possibility rather than probability merits discussion because our rule is that medical testimony, to sufficiently support causation, must be more than mere conjecture. Pertinent to this aspect of the present case is the following excerpt from 3 A. Larson, The Law of Workmen’s Compensation, § 80.32 (1976):
The distinction between probability and possibility should not follow too slavishly the witnesses’ choice of words, as sometimes happens in respect to medical testimony. A doctor’s use of such words as ‘might,’ ‘could,’ ‘likely,’ ‘possible,’ and ‘may have,’ particularly when coupled with other credible evidence of a non-medical character, such as a sequence of symptoms or events corroborating the opinion, is in most states sufficient to sustain an award. It is a common experience of compensation and personal injury lawyers to find that the more distinguished a medical witness is, the more tentative and qualified are his statements on the witness stand. .
******
The compensation process is not a game of ‘say the magic word,’ in which the rights of injured workers should stand or fall on whether a witness happens to choose a form of words prescribed by court or legislature. What counts is the real substance of what the witness intended to convey. .
******
. Such expert testimony of the doctor, plus the corroborating evidence, constitutes substantial evidence to support the Commission’s finding. This is not the first case in which this Court upheld an award of compensation where it was contended that trauma aggravated a preexisting ulcer. Such a case was New Orleans Furniture Mfg. Co. v. Martin, 190 So.2d 863 (Miss.1966), and there the claimant’s doctor testified it was ‘possible that the back injury aggravated the ulcer and certainly precipitated it.’ ” 349 So.2d at 533, 534.

Dr. Warren testified that the condition in appellant’s right hand could not be caused by one incident, such as she described. However, it is undisputed that she became aware of the condition in her hand while working for the employer and while on the job, and that she required surgery to correct that condition. We think that, considering all the testimony, medical and lay, there was substantial evidence to support the findings and order of the Commission. Therefore, the judgment of the lower court is reversed and the order of the Workmen’s Compensation Commission is reinstated.

REVERSED AND ORDER OF WORKMEN’S COMPENSATION COMMISSION REINSTATED.

SMITH and ROBERTSON, P. JJ., and WALKER, BLOOM, BOWLING and COF-ER, JJ., concur.

PATTERSON, C. J., and SUGG, J., take no part.


text:
    Thomas H. RAY v. The BABCOCK & WILCOX COMPANY, INC.
    No. 52128.
    Supreme Court of Mississippi.
    Sept. 24, 1980.
    Paul Kelly Loyacono, Loyacono & Field, Vicksburg, for appellant.
    P. N. Harkins, III, Watkins & Eager, Jackson, Teller & Teller, Vicksburg; for ap-pellee.
    Before SMITH, P. J., and BROOM and LEE, JJ.
   LEE, Justice, for the Court:

Thomas H. Ray filed suit in the Circuit Court of Warren County against Mississippi Power & Light Company [MP&L] and The Babcock & Wilcox Co., Inc. [B&W] for personal injuries sustained while Ray was working in a generating plant of MP&L. Prior to trial, on motion of Ray, the court granted a nonsuit as to MP&L and the trial proceeded against B&W, resulting in a jury verdict and judgment for Ray in the sum of four hundred twelve thousand five hundred dollars ($412,500). The lower court sustained a motion of B&W for a judgment notwithstanding the verdict, and Ray has appealed here.

The issues involved are whether or not the defense of dual employment was properly pled by appellee and whether or not the lower court erred in granting the judgment notwithstanding the verdict.

Although the appellee raised the question of dual employment by a “plea,” when it properly should have been raised by an affirmative defense, we are of the opinion that it was presented effectively to the lower court, particularly since no objection was made to testimony relating to dual employment of appellant by Bechtel Corporation [Bechtel] and B&W. Leggett v. Legett, 202 Miss. 435, 32 So.2d 189 (1947); Shapleigh Hardware Co. v. Brumfield, 159 Miss. 175, 130 So. 98 (1930).

The evidence is undisputed on the principal question of whether or not the lower court erred in sustaining the motion for judgment notwithstanding the verdict. Appellant was an employee of Bechtel, the general contractor on MP&L’s Gerald An-drus Steam Generating Plant in Greenville, Mississippi. Appellee was a subcontractor under the general contract held by Bechtel. Although appellee had no electricians working for it, on occasions, electricians were required in the performance of appellee’s work. Bechtel had a number of electricians employed by it and when appellee needed an electrician, contact was made with Bechtel who then sent the electrician to appel-lee. Bechtel paid the electrician’s wage and appellee was backcharged by Bechtel for all hours that the electrician worked on appel-lee’s job.

Appellant had been working with, and for, appellee over a period of several weeks, and, on October 24,1974, he was working on a boiler front attempting to get the boilers fired up so that they could be started the next day. He was on a ladder approximately five (5) feet off the floor, which was oily and slippery, the ladder slipped and collapsed, throwing him off the ladder and resulting in serious injuries. At the time of the accident, appellant was under the direct supervision and control of William C. Cunningham, an engineer of appellee. Cunningham told appellant what to do and how and where to perform his work. Appellant accepted and executed the orders and directions of appellee.

Crucial to the determination of the principal question is whether or not, under the undisputed proof, appellant worked in a dual capacity, that is, as employee and agent of Bechtel and also as employee and agent of appellee. Both Bechtel and appel-lee carried workmen’s compensation insurance covering their employees. A compensation claim was interposed against Bechtel by appellant and that claim was compromised for the sum of thirty-five thousand dollars ($35,000). Mississippi Code Annotated Section 71-3-9 (1972) provides that the liability of an employer under the terms and provisions for benefits pursuant to the Mississippi Workmen’s Compensation Act shall be exclusive and in place of all other liability of the employer to the employee arising out of injuries received by the employee within the course and scope of his employment. L. B. Priester & Son, Inc. v. Dependents of Bynum, 244 Miss. 185, 141 So.2d 246 (1962); Walters v. Blackledge, 220 Miss. 485, 71 So.2d 433 (1954).

This Court has held that when an employee is engaged in the service of two (2) employers in relation to the same act (dual employment), both employers are exempt from common law liability, although only one of them has actually provided workmen’s compensation insurance. Robertson v. Stroup, 254 Miss. 118, 180 So.2d 617 (1965).

In Biggart v. Texas Eastern Transmission Corp., 235 So.2d 443 (Miss.1970), the Court said:

“Although Jatt 0. Biggart, deceased, was employed and paid by River, the engineer for Brown & Root, Inc., and the foreman for Texas Eastern were entitled to, and did exercise control over the employees of River.
The traditional test of the employer-employee relationship is the right of the employer to control the details of the work. Jatt 0. Biggart was an employee of River and subject to the control of Texas Eastern and Brown & Root, Inc., appellees, at the time of his death. Brown v. E. L. Bruce Co., Inc., et al., 253 Miss. 1, 175 So.2d 151 (1965); Louis L. Gily & Sons v. Dependents of Shankle, 246 Miss. 384, 149 So.2d 480 (1963); Wade v. Traxler Gravel Co., 232 Miss. 592, 100 So.2d 103 (1958); Mozingo v. Mississippi Employment Security Commission, 224 Miss. 375, 80 So.2d 75 (1955).
An employee may be employed by more than one employer while doing the same work. The fact that only one of the employers paid Biggart (here River Construction Corporation paid deceased) does not alter the fact that Biggart was in the service of Texas Eastern and Brown & Root, Inc., an employer-employee relationship between appellees and deceased Biggart based on the element of control present at the time. Boyd v. Crosby Lumber & Manufacturing Co., 250 Miss. 433, 166 So.2d 106 (1964); Meridian Taxicab Co., Inc. v. Ward, 184 Miss. 499, 186 So. 636 (1939); Texas Co. v. Mills, 171 Miss. 231, 156 So. 866 (1934); Cf. C. H. Leavell and Company and Peter Kiewit Sons’ Company v. J. V. Doster, d/b/a Central Gulf Construction Co., 233 So.2d 775 (Miss.1970).
Since Jatt O. Biggart, deceased, was an employee of Texas Eastern and Brown & Root, Inc., the exclusive remedy for his heirs and dependents is under the Mississippi Workmen’s Compensation Act.” 235 So.2d at 444-445.

See also Harkins v. Paschall, 348 So.2d 1019 (Miss.1977).

The same principle applies on motion for judgment notwithstanding the verdict and on request for a peremptory instruction by a defendant. The Court considers all evidence favorable to the plaintiff, together with all reasonable inferences, does not consider evidence in conflict therewith, and, if the evidence will not support a verdict for the plaintiff, the motion should be granted. Golden v. Duggins, 374 So.2d 243 (Miss. 1979); Claiborne v. Greer, 354 So.2d 1109 (Miss.1978); Paymaster Oil Mill Co. v. Mitchell, 319 So.2d 652 (Miss.1975).

We are of the opinion that, under the undisputed facts and evidence, appellant was acting in a dual capacity as employee of Bechtel and appellee at the time of his unfortunate accident, that his sole remedy was for workmen’s compensation benefits, and that he was barred from filing a common law action against appellee. Therefore, the lower court did not err in sustaining the motion for judgment notwithstanding the verdict, and the judgment is affirmed.

AFFIRMED.

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

PATTERSON, C. J., took no part.


text:
    Robert T. WILLIAMSON v. STATE of Mississippi.
    No. 52098.
    Supreme Court of Mississippi.
    Sept. 24, 1980.

      W. S. Moore, Jackson, for appellant.
    Bill Allain, Atty. Gen. by Carolyn B. Mills, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before SUGG, BROOM and LEE, JJ.
   LEE, Justice, for the Court:

Robert T. Williamson was convicted in the Circuit Court of Scott County for the sale of marijuana in a quantity greater than one (1) kilogram, and was sentenced to fifteen (15) years in the Mississippi State Penitentiary, said sentence to run consecutively with a previous sentence received by him in Rankin County, where he was sentenced to twenty-seven (27) years imprisonment with twenty-one (21) years suspended. Williamson has appealed and assigns two (2) errors in the trial below.

I.

The appellant first contends that the lower court erred in refusing to accept his plea of guilty.

Appellant attempted to plead guilty to the offense charged in the indictment. A hearing was held to determine whether or not the proposed plea was voluntary. The following transpired in the interrogation by the trial judge:

“Q. All right, now, do you still want to stand by your plea of guilty?
A. Yes, sir. Can I say something?
Q. Yes, sir.
A. I’m not guilty really. Those people, I never come to them and said I want to sell you some marijuana. They called me and I turned them down and they kept doing it. Finally I sold it to them. You would have sold it, too.
Q. I doubt it. I never have. I will not accept this Defendant’s plea on the basis of his statement he is not guilty. He has raised to me an indication of a defense. I have a new jury coming in here Monday. I am setting this case for trial at 8:00 o’clock Monday. There will be no plea bargaining from this day forward. If the jury turns him loose, that is their responsibility. If the jury finds him guilty, then it is my responsibility for me to pass sentence. Remove him from the Courtroom, Sheriff.”

Subsequently, prior to trial, counsel for appellant moved the court to accept the appellant’s plea of guilty, and, in support thereof, argued that the remarks made by appellant at the sentencing hearing were taken out of context, were made only for the purpose of mitigating sentence, and were not intended to deny his guilt of the crime charged. In overruling the motion, the trial judge indicated that, at said hearing, appellant gave answers causing him to believe appellant was offering defenses against the charge, and that he declined to accept the guilty plea for that reason.

In Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971), the United States Supreme Court held that a criminal defendant has no absolute right to have his guilty plea accepted by a trial court, and that the trial judge may decline to accept such a plea in the exercise of sound judicial discretion.

The Fifth Circuit Court of Appeals has decided that a trial judge should not reject guilty pleas without good reason, where they are freely and voluntarily entered, and that good reason for rejecting the pleas could exist when there was a possibility of a later collateral attack on the judgments entered pursuant to such guilty pleas. United States v. Martinez, 486 F.2d 15 (5th Cir. 1973). However, in North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), the United States Supreme Court held it is not error for a trial court to accept a plea of guilty in spite of a defendant’s unwillingness, or inability, to admit guilt where compelling reasons exist for entering the plea when there exists substantial evidence of the defendant’s guilt.

In the case sub judice, appellant denied his guilt, claimed the defense of entrapment, and his attorney attempted to develop that defense through cross-examination of the State’s witnesses. We are of the opinion that the trial court did not abuse its discretion in declining to accept the guilty plea and that the first assignment is not well taken.

II.

Did the lower court err in imposing a greater sentence upon appellant than was offered in exchange for a guilty plea?

The trial judge stated, during pretrial hearing on the voluntariness of the proposed guilty plea, that the recommendations of the prosecution would be accepted and that appellant would be sentenced to serve a term of eight (8) years in the Mississippi State Penitentiary to run consecutively with a previous sentence given in Rankin County. Appellant now contends that imposition of the fifteen — year sentence was punishment against him for exercising his right to a trial by jury.

We held in Fermo v. State, 370 So.2d 930 (Miss.1979), that, in sentencing a defendant, the trial court must consider only legitimate factors and cannot base the sentence of the accused, in whole or in part, on the exercise of his constitutional right to a jury trial.

In Frank v. Blackburn, 605 F.2d 910 (5th Cir. 1979), the Court held that a defendant may not be more severely sentenced after conviction by a judge who earlier proposed a more lenient sentence in return for a plea of guilty to the same charge, unless there were reasons based upon the conduct of the defendant which were unknown to the trial judge when the lighter sentence was proposed.

In the present case, the record reflects that the trial judge, at the time the lighter sentence was discussed, was unaware that the defendant had committed an unindicted offense, viz, the sale of a controlled substance, Dilaudid. We are of the opinion that, when the trial judge took under consideration that fact, he did not abuse his discretion in imposing a greater sentence after the conviction of appellant.

There being no reversible error in the trial below, the judgment of the lower court is affirmed.

AFFIRMED.

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

PATTERSON, C. J., took no part.


author: SHORES, Justice. JONES, Justice

text:
    INDUSTRIAL TILE, INC., a corp. v. John STEWART and United States Fidelity and Guaranty Company, a corp. COURTAULDS NORTH AMERICA, INC. v. INDUSTRIAL TILE, INC., a corp.
    78-462, 78-401.
    Supreme Court of Alabama.
    Aug. 22, 1980.
    Rehearing Denied Sept. 26, 1980.

      Robert H. Smith of Collins, Galloway & Smith, Mobile, for Industrial Tile, Inc.
    Paul W. Brock and William C. Roedder, Jr. of Hand, Arendall, Bedsole, Greaves & Johnston, Mobile, for Courtaulds North America, Inc.
    James H. Lackey, Mobile, for John Stewart and United States Fidelity and Guaranty Co.
   SHORES, Justice.

Plaintiff, John Stewart, was employed at the time of his accident as an iron worker for J & J Construction and Maintenance Contractors (J & J). J & J had been engaged by Courtaulds North America, Inc. (Courtaulds) to renovate an area of its Le-Moyne, Alabama, plant. Stewart was injured when he attempted to aid an employee of another independent contractor, Industrial Tile, Inc. (Industrial Tile); the other employee was electrocuted when a cherry picker (a mobile hydraulic crane) operated by Industrial Tile employees came in contact with a 7200-volt wire which had been installed in 1971 as a temporary measure by Courtaulds, which owns and maintains its own electrical system, including overhead transmission lines. The transmission wire had been partially disconnected when no longer needed, but the current was never cut off. The wire draped an entrance to an unpaved storage yard within the Courtaulds compound, where employees of all independent contractors performed work.

Stewart filed this action against Cour-taulds, Industrial Tile, and others. He alleged that he was injured as a result of the negligence of Courtaulds in installing and maintaining high voltage lines in a negligent manner on its premises and having uninsulated wires in a place where it might reasonably be expected that persons or machinery would come into contact with them. He also alleged that Industrial Tile negligently operated a crane so as to cause it to come into contact with the power lines installed and maintained by Courtaulds.

The case against Courtaulds and Industrial Tile went to the jury, which returned a verdict in favor of plaintiff, Stewart, for $375,000. Courtaulds and Industrial Tile filed motions for judgment notwithstanding the verdict or, in the alternative, new trials. These were denied, and Industrial Tile filed notice of appeal.

Courtaulds did not appeal from the judgment entered in favor of plaintiff, Stewart, but did appeal from the judgment entered in favor of Industrial Tile and against it on its cross-claims. By way of cross-claim, Courtaulds claims indemnity for any judgment recovered against it by Stewart. We address each of the appeals separately.

I.

Industrial Tile, Inc., a corp. v. John Stewart and United States Fidelity and Guaranty Company, a corp.

The sole issue raised on appeal by Industrial Tile is whether the trial court erred to reversal in admitting into evidence the fact that Industrial Tile had been fined for violating OSHA regulations.

Plaintiff charged that Industrial Tile had negligently operated a mobile hydraulic crane in such a manner as to allow the crane to come in contact with power lines maintained by Courtaulds. Counsel for Courtaulds, on cross-examination of an officer of Industrial Tile, elicited from that witness that he was familiar with the Occupational Safety and Health Act (OSHA) and its requirements that where power lines contained 50,000 volts or less, there must be a clearance of ten feet between the boom of a crane and the wire. The witness then identified a copy of the rules and regulations, which were admitted into evidence without objection. Among the regulations set out was Section 1926-550 which contains the minimum clearance requirements. This witness testified that such regulations applied to Industrial Tile. He was then asked whether Industrial Tile had been fined by OSHA for violation of a regulation. Counsel for Industrial Tile objected and moved to strike the question, contending then and now that such evidence was prejudicial and, thus, inadmissible.

The trial court heard .argument from counsel for both sides and overruled the objection and, when the jury returned, advised that the regulations were admitted into evidence “not as the absolute rule for you to follow but this is a guideline of rules and regulations, one of the guidelines of the rules and regulations to be followed in the trade or business Industrial Tile is involved in.”

Counsel for Courtaulds then asked the witness if Industrial Tile had been cited by OSHA on the day of the accident for violation of the ten-foot rule. Counsel for Industrial Tile renewed its objection on the ground that it was “inadmissible, incompetent, irrelevant and immaterial as to any of these matters that OSHA undertook in administrative proceedings, would be prejudicial and again [renewed its] request for a mistrial.” The court overruled the objection and denied the motion for a mistrial, instructing the jury that “this is not the ultimate decision for you to decide, but you consider this in connection with all of the facts that you hear in this case.” The witness then answered that Industrial Tile had been fined by OSHA. The witness testified that Industrial Tile had an opportunity to contest the citation but did not do so for the reason that “there wasn’t much sense to it because I felt like it would be a waste of time. It was an automatic fine anyway, we did rig it to go lower.”

In Knight v. Burns, Kirkley and Williams Construction Inc., 331 So.2d 651 (Ala.1976), this Court held that a plaintiff did not have a private civil remedy because of a violation of the Occupational Safety and Health Act of 1970 or the regulations promulgated thereunder. The Court specifically said:

However, this does not mean that appropriate and relevant standards and safety requirements established by OSHA or accompanying regulations are completely and totally irrelevant. In the case of City of Dothan v. Hardy, 237 Ala. 603, 188 So. 264 (1939) this court upheld the admission into evidence of ‘Safety Rules for the Installation and Maintenance of Electrical Supply and Communications Lines’ from the ‘Handbook of The Bureau of Standards, No. 10,’ for the jury to consider in determining whether a defendant was negligent or not. These safety rules were promulgated by an agency of the United States Government. Under proper circumstances Occupational Safety and Health Act provisions and regulations may be admissible for a jury to consider in determining the standard of care that a defendant should have followed, if properly introduced in accordance with the requirements of the City of Dothan v. Hardy, supra.

Knight v. Burns, Kirkley and Williams Construction, Inc., supra, p. 654.

We hold that it was not error to admit the regulations under the rule stated in City of Dothan, supra. If the regulations are admissible as going to show a standard of care, then it seems only reasonable that evidence of violation of the standards would also be admissible as evidence that the defendant failed to meet the standards that it should have followed. Clearly, the fact that Industrial Tile had been cited by OSHA for violating the standards, and the fact that Industrial Tile had paid the fine, are relevant to the question of whether it violated the standard of care applicable to its conduct. There was evidence from a number of witnesses that the crane violated the ten-foot standard. It seems to us that evidence that Industrial Tile paid the fine without objection was properly admitted in evidence as a declaration against interest. Motley v. Page, 250 Ala. 265, 34 So.2d 201 (1948); Ritter v. Griswold, 2 Ala.App. 618, 56 So. 860 (1911). We find no error to reverse, particularly in light of the admonition given the jury by the trial judge that it was not to consider the rules and regulations as an absolute, but merely as guidelines, and that they were to be considered along with all the other facts adduced in the case.

The judgment is affirmed.

II.

Courtaulds North America, Inc. v. Industrial Tile, Inc., a corp.

In response to plaintiff Stewart’s suit against Courtaulds and Industrial Tile, and others, Courtaulds filed an answer and also filed cross-claims against Industrial Tile seeking indemnity on several theories. Industrial Tile moved to dismiss the cross-claims, but this motion was not ruled upon until after the trial was had and all the parties had rested. At the end of the case, the trial court entered its order granting Industrial’s motion to dismiss.

The case was submitted to the jury which returned a verdict for $375,000 in favor of plaintiff Stewart and against all defendants. After the court denied its motions to set aside its order dismissing the cross-claims, Courtaulds appealed.

On appeal, Courtaulds asserts that the trial court was wrong in granting Industrial’s motion to dismiss the cross-claims.

It asserts that the trial court erred in granting the motion because Courtaulds refiled the cross-claims after the motion to dismiss was filed and no new motion to dismiss was again filed. We are unpersuaded by this argument. Courtaulds admits that the refiled cross-claims were substantially identical to the ones to which the motion to dismiss was originally addressed. We see no need for the refiling of a motion to dismiss not theretofore ruled upon where the pleadings to which it was originally addressed were not substantially altered by the refiling.

Furthermore, although we are urged to test the trial court’s correctness in granting Industrial’s motion to dismiss the cross-claims as a 12(b)(6) ARCP motion, it should not be viewed as a usual motion to dismiss case. This motion to dismiss was not ruled upon until all of the evidence was in. Therefore, we must test , the trial court’s action in view of what was before it at the time and, thus viewed, it lends itself to treating the action of the trial court as if it had directed a verdict in favor of Industrial Tile on Courtaulds’ cross-claims. This is true because all of the evidence adduced by all parties to the litigation was in at the time the motion was granted.

Tested in that fashion, then, we look to each of the theories of liability and the evidence in the record as it relates to each theory of liability asserted in the cross-claims.

Tested in that fashion, we agree with Courtaulds in its contention that the trial court erred in granting Industrial Tile’s motion to dismiss Courtaulds’ cross-claims based upon the written indemnity contract.

The claims founded on the indemnity contract alleged in part that Industrial Tile was performing certain work for Cour-taulds on Courtaulds’ premises; that this work was being performed pursuant to a written contract; that the contract was in full force and effect at all pertinent times; that the contract contained a provision requiring Industrial Tile to indemnify and hold harmless Courtaulds from any damages on account of bodily injury occurring in connection with the work to be done by Industrial Tile.

The specific provision for indemnity appears in the contract as follows:

ARTICLE II-Indemnification-The Contractor [Industrial Tile] shall be solely responsible to indemnify and hold harmless the Owner [Courtaulds], its agents, servants and employees, from and against any and all claims, losses, suits, damages, judgments, expenses, costs and charges of every kind and nature, whether direct or indirect, on account of or by reason of, bodily injuries (including death) to any person or persons, including, but not limited to its agents, servants and employees or other of the Owner, Contractor or any subcontractor and injury to or destruction of property (including the loss of use thereof) of the Owner, or others arising out of or occurring in connection with the performance of the work to be done pursuant to the contract and whether or not caused by or contributed to, or alleged to have been caused by or contributed to, by the active, passive, affirmative, sole or concurrent negligence or breach of any statutory duty, whether non-delegable or otherwise on the part of the owner or its agents, servants or employees, or liability therefor imputed as a matter of law to the owner and/or its agents, servants or employees or from the failure of or any condition in materials or parts or faulty workmanship furnished by the Owner, Contractor or any Sub-Contractor and/or their respective agents, servants or employees pursuant to the Contract.

The question presented is whether or not this provision of the contract is enforceable. The Court has, for many years, held that as between private parties, indemnity contracts are enforceable if the contract clearly indicates an intention to indemnify against the consequences of the indemnitee’s negligence, and such provision was clearly understood by the indemnitor, and there is not shown to be evidence of a disproportionate bargaining position in favor of the indemni-tee. J. E. Eley v. Brunner-Lay Southern Corp., Inc., 289 Ala. 120, 266 So.2d 276 (1972); Georgia, Florida, Alabama Transportation Co., Inc. v. Deaton, Inc., 293 Ala. 371, 304 So.2d 168 (1974); Armi v. Huckabee, 266 Ala. 91, 94 So.2d 380 (1957); Batson-Cook Co. v. Industrial Steel Erectors, 257 F.2d 410 (5th Cir. 1958); U. S. Fidelity & Guaranty Co. v. Mason & Dulion Co., Inc., 274 Ala. 202, 145 So.2d 711 (1962); Cairnes v. Hillman Drug Co., 214 Ala. 545, 108 So. 362 (1926); Spangler v. Hobson, 212 Ala. 105, 101 So. 828 (1924); Louisville & N. R. Co. v. Cullman Warehouse, Inc., 226 Ala. 493, 147 So. 421 (1933).

In J. E. Eley v. Brunner-Lay Southern Corp., Inc., supra, the Court summarized the rule followed in this state as follows:

We think that our cases hold that the intention to indemnify the negligence of the indemnitee must clearly appear from the wording of the instrument, but when that intention is clear, the indemnity provisions will be read and construed so as to give them the meaning the parties have expressed. We think that in the instant case the intention to indemnify was clearly expressed, it was not ambiguous and the indemnity provisions are effective as between the parties.

In Campbell Piping Contractors, Inc. v. Hess Pipeline Co., 342 So.2d 766 (Ala.1977), the Court said:

We have repeatedly held that such provisions must be construed in favor of the indemnitor in instances where the indemnity is not contracted for from an insurance company engaged in the business of writing, for consideration, such coverage, and that such provisions must succinctly and clearly indicate that the indemnitor is required to indemnify the indemnitee against loss occasioned by his own negligence. U.S.F. & G. v. Mason & Dulion Co., 274 Ala. 202, 145 So.2d 711 (1962).

The Court’s insistence that such provisions be unambiguous and unequivocal arises from its concern that, generally speaking, one should not be able to contract against the] consequences of his own wrong. However, as stated in 41 Am.Jur.2d, Indemnity, § 9 (1968), the general rule seems to be:

Broadly speaking, a promise of indemnity for the performance of an act not illegal, immoral, or against public policy is valid. Thus, indemnity against loss on account of a business transaction is proper. And, although there is some earlier authority to the contrary, it is now the prevailing rule that a contract may validly provide for the indemnification of one against, or relieve him from liability for, his own future acts of negligence provided the indemnity against such negligence is made unequivocally clear in the contract.

Section 15:

A contract of indemnity purporting or claimed to relieve one from the consequences of his failure to exercise ordinary care must be strictly construed. Accordingly, it is frequently stated as the general rule that a contract of indemnity will not be construed to indemnify the indem-nitee against losses resulting from his own negligent acts unless such intention is expressed in clear and unequivocal terms, or unless no other meaning can be ascribed to it.

Alabama has generally followed these general rules when construing contracts between private parties, as distinguished from corporations performing a public service. American District Telegraph Company of Alabama v. Roberts & Son, Inc., 219 Ala. 595, 122 So. 837 (1929).

Industrial Tile argues that Alabama, in 1978, in Alabama Great Southern Railroad Co. v. Sumter Plywood. Corp., 359 So.2d 1140 (Ala.1978), rejected the general rule and now follows the rule that, as between private parties, any contract which permits the indemnification of the indemni-tee against his own wrongs is void as against public policy. We agree that there is language in the opinion which supports Industrial Tile’s contentions. However, after carefully reviewing all of the authority in this state, we are compelled to conclude that, if the parties knowingly, evenhandedly, and for valid consideration, intelligently enter into an agreement whereby one party agrees to indemnify the other, including indemnity against the indemnitee’s own wrongs, if expressed in clear and unequivocal language, then such agreements will be upheld. To the extent that Alabama Great Southern Railroad Co. v. Sumter Plywood Corp., supra, holds otherwise, it is hereby modified.

Based upon the record before us, we cannot say as a matter of law that the agreement involved in this case fails to meet that test. Therefore, we reverse the trial court, and remand the claim asserted by Courtaulds in its cross-claims against Industrial Tile, based upon the written indemnity provision, for reconsideration in light of this opinion.

CASE NO. 78-462 AFFIRMED.

CASE NO. 78-401 REVERSED AND REMANDED.

TORBERT, C. J., and MADDOX, AL-MON and BEATTY, JJ., concur.

FAULKNER, JONES and EMBRY, JJ., concur in part and dissent in part.

JONES, Justice

(concurring in Part I and dissenting in Part II):

I concur in Part I of the opinion, affirming the judgment below on the evidentiary question. I dissent as to Part II, reversing the judgment on the indemnity contract issue.

While I agree with the majority’s statement of our case law’s evolvement of the general rule, I would add that its application has not produced a model of consistency. Indeed, it is a fair summary to observe that the “strict construction” of these indemnity contracts evinces their strong disfavor by the courts. So much so, in fact, that Alabama Great Southern Railroad Co. v. Sumter Plywood Corp., 359 So.2d 1130 (Ala.1978), sought to carve out only a narrow field of operation for such contracts.

I agree with the holding of Alabama Great Southern, but the dictum that distinguishes between private and public covenants, in my opinion, is unsupported by any defensible rationale. There is however, a perfectly good reason for another and different distinction-the distinction between those classes of cases requiring indemnity for vicariously imposed liability and those which covenant against one’s own negligence. I would hold the latter void as against public policy, consistent with our holding in Alabama Great Southern Railroad Co. v. Sumter Plywood Corp.; and I would validate the former, because, in re-spondeat superior cases, the policy considerations applicable to the latter classification are not present.

Our time-tested, fault-based tort law is being weakened unnecessarily by permitting, for example, a general contractor to impose upon a subcontractor the latter’s obligation to indemnify the former for losses incurred through the former’s own acts of negligence. I have never understood, nor accepted as sound law, such an exception to the general law of torts which fixes responsibility upon the wrongdoer. The promotion of safety-one of the objects of tort law-is hardly the end result of such contracts in nonvicarious fault situations.

On the other hand, the law should look with favor upon contracts of indemnity where the liability insured against is imposed vicariously through the'master/servant or principal/agent relationship. In these situations, tort law concepts are being implemented to the fullest. That is, where the principal’s liability is imposed pursuant to the respondeat superior concept, tort law affords him a remedy for reimbursement against his wrongdoer servant or agent. To contractually obligate the servant, agent or employee, whose prospective negligent conduct may impose vicarious liability upon his principal, to indemnify his principal for any losses thereby incurred is consistent with the public policy of this State.

Here, the indemnity contract between the subject parties does not fall within the latter classification and, in my opinion, should be held void as against public policy. Therefore, I respectfully dissent as to Part II of the opinion.

FAULKNER and EMBRY, JJ., concur.