author: BOWLING, Justice,

text:
    TRUSTEES OF WADE BAPTIST CHURCH, et al. v. MISSISSIPPI STATE HIGHWAY COMMISSION.
    No. 53075.
    Supreme Court of Mississippi.
    March 24, 1982.
    Cumbest, Cumbest & Hunter, David O. McCormick, Pascagoula, for appellants.
    Jones, Maples & Lomax, F. Gerald Maples, Lowry M. Lomax, Pascagoula, for ap-pellee.
    Before SUGG, P. J., and BROOM and BOWLING, JJ.
   BOWLING, Justice,

for the Court:

This is an eminent domain case that originated in a Special Court of Eminent Domain in Jackson County. The landowner disagreeing with the jury’s verdict appeals and propounds several alleged reversible errors. We need to consider only one assignment of error as it requires a reversal of the cause for a new trial. This assignment is:

THE COURT ERRED AND ABUSED ITS DISCRETION IN REFUSING TO LET MR. BOB STEPHENS TESTIFY AS AN EXPERT IN THE FIELD OF APPRAISING PROPERTY THUS PREJUDICING THE RIGHTS OF THE LANDOWNER BY TAKING PROPERTY WITHOUT JUST COMPENSATION.

The Wade Baptist Church is located on the northwest corner of the intersection of highways numbered 63 and 614. The taking consisted of property and access fronting on both highways. For the purposes of this opinion, it is not necessary for us to go into further detail as to the remaining testimony regarding the proper amount owed the church. The highway commission introduced one expert witness. The church introduced one of the three member Board of Trustees. The testimony of these two witnesses, as is usually the case, was not the same regarding values. The church attempted to introduce Mr. Bob Stephens as an independent witness; however, the trial judge sustained appellee’s objection to testimony from Mr. Stephens, the court stating that he did not have the necessary qualifications. We therefore are limited to a discussion of Mr. Stephens’ qualifications and whether or not it is reversible error that his testimony was not permitted to be heard by the jury.

Mr. Stephens first testified that he had been a licensed real estate appraiser since 1972 at the direction of the proper state agency; however, there is no such title in the state, but he had a broker’s license from the Mississippi board which authorized such appraisal work. He was a member of the Jackson County Homebuilder’s Association and Jackson County Board of Realtors. He served as president of Jackson County Homebuilder’s Association. He was at one time president of the Gulfport Board of Realtors and was on the Board of Directors of the state association. He is a member of the National Homebuilders Association and the National Board of Realtors. He has been in the real estate business approximately 16 years. He has done appraisal work “most of this time, but not on a full-time basis.” He was manager for Reid-McGee Mortgage Company [now Cameron-Brown, Inc.] for nine years and appraised property on which that company made loans. He had done appraisal work for Hancock Mortgage Company, Coast Federal Savings & Loan, Southern Savings and Loan, First Southern Savings Association of Gulfport, Depositors’ Savings of Jackson, Gulfport National Bank, Kimbrough Investment Company, Aetna Insurance Company, Merrill Lynch Company, Bailey Mortgage Company, First National Bank of the South, Wortman and Mann, Deposit Guaranty Mortgage Company, Veterans’ Administration, Federal Housing Association, Federal National Mortgage Association and Jackson County.

Stephens received a B. S. degree from the University of Southern Mississippi. He had performed both residential and commercial appraisals with the majority being residential. At the time of the trial he was making about fifty appraisals each month. He attended and completed an appraisal course with the SREA, a society of real estate appraisers. For two and one-half years pri- or to the time of the trial he had done full-time appraisal work and part-time for all the years he had been in the real estate business and working with the above set out mortgage loan companies. Stephens had periodically attended special seminars and courses of appraisals held by FHA and VA. He is a member of the National Association of Real Estate Boards. In connection with the courses he had attended, he kept appraisal textbooks and periodically received information from those associations.

In Mississippi State Highway Comm’n v. Strong, 240 Miss. 756, 129 So.2d 349, (1961), we stated:

It will not be presumed that a witness is competent to give an opinion, but it must be shown that he has some peculiar means of forming an intelligent, correct judgment as to the value of the property in question or the effect upon it by a particular improvement, beyond what is possessed by men generally. It is apparent that the opinion of a witness should not be admitted where it appears that his opportunity for knowledge concerning the land was slight or that his knowledge was remote in point of time. The witness must be acquainted with the property sought to be taken before such witness can give his opinion as to the “fair market value of property.” [citations omitted] Real estate dealers and brokers are, however, likely to have greater familiarity with land values, and they constitute perhaps the larger part of the class of value witnesses.

In Mississippi Highway Comm’n v. Terry, 288 So.2d 465 (Miss.1974), we stated “[valuation of real estate may be an art, but it is not an exact science.”

In Glens Falls Ins. Co. v. Linwood Elevator, 241 Miss. 400, 130 So.2d 262 (1961), we stated:

This Court has pointed out in the case of King v. King, 161 Miss. 51, 134 So. 827 that a witness need not be infallible or possess the highest degree of skill to testify as an expert. It is generally sufficient that the witness possess knowledge peculiar to the matter involved, not likely to be possessed by ordinary laymen. A doctor was permitted to testify as to the “probabilities of a recovery” in the case of Griswold v. New York & H. R. R. Co., 115 N.Y. 61, 21 N.E. 726. In the case of Mutual Life Ins. Company of New York v. Rather, et al., 221 Miss. 527, 73 So.2d 163, this Court held that a doctor might testify, not only to facts observed by him, but give his opinion, on proper interrogation. See Schamoni v. Semler, 147 Or. 353, 31 P.2d 776.

We further stated in Strong, supra,

[t]he witnesses introduced to prove the value of the property are sometimes called expert witnesses but this is a misnomer for no peculiar ability or specialized training is required to testify as to the value of property.

We note here that appellee cites no authority that would prohibit Mr. Stephens from qualifying as an expert under his qualifications as hereinbefore related.

In our opinion that trial court was in error in sustaining appellee’s objection to the testimony of Mr. Stephens. His qualifications were sufficient to permit his testimony in the relatively simple case before us. The import to be given his testimony is for the jury. We are therefore reversing and remanding the cause for a new trial.

REVERSED AND REMANDED.

PATTERSON, C. J., SMITH and SUGG, P. JJ., and WALKER, BROOM, ROY NOBLE LEE, HAWKINS and DAN M. LEE, JJ., concur.


source: Caselaw Access Project

author: ROY NOBLE LEE, Justice,

license: Public Domain

text:
    Darius BELL v. STATE of Mississippi.
    No. 53055.
    Supreme Court of Mississippi.
    March 24, 1982.

      Malouf & Malouf, Michael K. Henry, Jackson, for appellant.
    Bill Allain, Atty. Gen. by Carolyn B. Mills, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before SUGG, ROY NOBLE LEE and HAWKINS, JJ.
   ROY NOBLE LEE, Justice,

for the Court:

Darius Bell was indicted, tried and convicted in the Circuit Court of the First Judicial District of Hinds County, Mississippi, Honorable William F. Coleman, presiding, on a charge of armed robbery and was sentenced to serve a term of twenty-five (25) years with the Mississippi Department of Corrections. Bell has appealed and assigns three errors in the trial below.

I.

Was the verdict of the jury contrary to the weight of the evidence?

The State’s evidence reflects that on April 1, 1980, at approximately 9:15 a.m., a convenience store on Hanging Moss Road was robbed. Gary Perryman entered the store, pointed a loaded .38-caliber snub-nosed revolver at Corrine Houston, the clerk, and demanded money from the cash register. Mrs. Houston slowly began to remove the money and Perryman cocked the pistol and told her to “speed up.” She gave him approximately one hundred fifteen dollars ($115.00) in cash and ten dollars ($10.00) in food stamps. Perryman took the money, and ran out of the store, where Harold Sanders, who had been standing there watching the door, joined him. The men ran down the street approximately one-half block to a waiting red Toronado automobile owned by Darius Bell. According to Perryman and Sanders, Bell was in the driver’s seat, they entered the car and Bell drove away. All three went to Bell’s home and divided the money. Perryman kept the largest amount, since he actually went into the store and got the money. Sanders drove off in his own automobile and Bell and Perryman followed him to Perryman’s home in Crystal Springs, where Bell’s car was left. Two days later, Perry-man was arrested while driving Bell’s automobile in Jackson and Sanders was subsequently arrested.

Mrs. Jane Sanders, mother of Harold Sanders, testified that appellant Bell came to her home on April 14, 1980, and told her that Harold Sanders had been arrested. He also said, “Well, they won’t never get their hands on me because I’ll be long gone from here.” Appellant was arrested several months later.

Appellant’s defense was an alibi. He did not testify, but Mrs. Annie Bell and one Reverend Robert Bracy, minister of Bell Chapel Church, testified that between the hours of 7:30 and 11:00 a. m. on April 1, 1980, they both were in the Bell home and that appellant, son of Mrs. Annie Bell, was in the house during that period of time.

Appellant contends that the testimony of Perryman and Sanders, the two accomplices, was impeached by the alibi testimony of Mrs. Annie Bell and Rev. Robert Bracy, and that the evidence was insufficient to support a guilty verdict. In Wall v. State, 379 So.2d 529 (Miss.1980), the Court said:

Although persons may be convicted of crimes on the uncorroborated testimony of accomplices, such testimony is to be viewed with great caution and suspicion. In Thomas v. State, 340 So.2d 1 (Miss.1976), in discussing the principle, this Court said:
“The law is settled in this state that the uncorroborated testimony of an accomplice will support a guilty verdict, but the rule requires that such uncorroborated testimony should be viewed with great caution and suspicion and that it must be reasonable and not improbable or self-contradictory or substantially impeached. Black v. State, Miss., 336 So.2d 1302, handed down September 7, 1976; Hutchins v. State, 220 So.2d 276 (Miss.1969); Cole v. State, 217 Miss. 779, 65 So.2d 262 (1953).” 340 So.2d at 2. (379 So.2d at 531).

We held in Pegram v. State, 228 Miss. 860, 89 So.2d 846 (1956), where the testimony of an accomplice was thoroughly impeached by the appellant’s alibi, that the conviction should not be allowed to stand.

In the case sub judice, testimony of the accomplices is corroborated in the following respects:

(1) The automobile used in the robbery was owned by appellant.

(2) The robbery weapon was the property of appellant.

(3) Mrs. Jane Sanders gave testimony that appellant told her, “Well, they won’t never get their hands on me because I’ll be long gone from here.”

(4) Appellant was arrested several months after having made the above statement, which indicates that he was “long gone.”

(5) The testimony of Perryman and Sanders was reasonable, not improbable or self-contradictory and not impeached except by the alibi testimony of Mrs. Bell and Rev. Bracy.

We are of the opinion that the verdict of the jury is not contrary to the overwhelming weight of the evidence and that the jury verdict is supported by the evidence. Warn v. State, 349 So.2d 1055 (Miss.1977).

II.

Did the lower court err in failing to assure that the appellant received a fair trial?

Appellant argues that the lower court should have granted him an instruction to the effect that the testimony of accomplices should be viewed with great care and caution and that an alibi instruction should have been granted. Appellant did not request the lower court to grant him either of the mentioned instructions. The trial judge specifically asked counsel for appellant whether he had an alibi instruction and counsel replied that he did not. Appellant contends that because the court did not grant the instruction of its own volition, he was not assured a fair trial.

In Newell v. State, 308 So.2d 71 (Miss.1975), this Court held that the trial judge may give appropriate instructions in addition to those submitted by litigants in the case, if, in the exercise of his discretion, he considers the ends of justice require it. Further, Newell held that the lower court may not be put in error for failure to instruct the jury on any point of law unless specifically requested in writing to do so. (308 So.2d at 78). The rule stated in Newell has been approved many times and, in our opinion, is good law today.

We are of the opinion that there is no merit in this assignment of error.

III.

Did the lower court err in refusing to grant Instruction D-14?

Instruction D-14 follows:

The Court instructs the Jury that it is your duty not to consider the quantity of witnesses testifying in this case, but rather the quality of their testimony.

The court committed no error in refusing the above instruction, since it was comment upon the weight of the evidence. Dolan v. State, 195 Miss. 154, 13 So.2d 925 (1943); Mississippi Code Annotated Section 99-17-35 (1972).

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

AFFIRMED.

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


author: PATTERSON, Chief Justice,

text:
    In The Matter of The Last WILL and Testament OF James H. GRIFFIN, Deceased. James I. LOWRY, et al. v. Joseph T. DOSS, Jr., Executor, etc.
    No. 53042.
    Supreme Court of Mississippi.
    March 24, 1982.
    Mitchell, McNutt, Bush, Lagrone & Sams, Fred M. Bush, Jr., John S. Hill, Tupelo, for appellant.
    L. C. Fant, Jr., Holly Springs, for appel-lee.
    Before PATTERSON, C. J., and BROOM and DAN M. LEE, JJ.
   PATTERSON, Chief Justice,

for the Court:

James I. Lowry, Mrs. Mildred Lowry Crump, Mrs. Mattie Lou Neatherly, John E. Griffin, and R. C. Griffin, being nieces and nephews of the late James H. Griffin filed suit in the Chancery Court of Chickasaw County for the construction of the Last Will and Testament of James H. Griffin, and for distribution of his estate. The respondents are Joseph T. Doss, Jr., individually and as executor of the will, Mrs. Annie Lou Beasley, Mrs. Lorena Doss Griffin, Mrs. Mary Ruth Bagley, and Mrs. Virginia Doss Ryatt. The respondents are a nephew and nieces of the testator and they along with the petitioners are named as devisees and legatees by the terms of the will.

The language to be construed is found in Article III of the will which states:

I hereby give, devise and bequeath any and all real, personal or mixed property owned by me at the time of my death unto my nieces and nephews, Joe R. Doss, Jr., Annie Lou Beasley, Virginia Doss Ryatt, Lorena Doss Griffin, Mary Ruth Bagley, J. I. Lowry, Mattie Lou Neatherly, Mildred Crump, Cleve Griffin, Jr., and John Edgar Griffin, in equal shares, per stirpes and not per eapita. (Emphasis added.)

The issue to be resolved is whether those legatees and devisees designated in Article III, supra, take in equal shares or whether by per stirpes representation as children of the testator’s deceased brothers and sisters.

At the time of his death the testator had never married and had no children. When the will was executed the testator’s two brothers and two sisters had died leaving the testator with ten nieces and nephews. One of the brothers left no children.

The petitioners allege that under the terms of the will Mrs. Mildred L. Crump, James I. Lowry, and Mattie Lou Neatherly, the children of the testator’s deceased sister, Lottie G. Lowry, were devised an undivided one-third of the estate, being a one-ninth interest each. Petitioners John E. Griffin and R. C. Griffin, the children of the testator’s deceased brother, Cleve Griffin, were likewise devised an undivided one-third of the estate, being a one-sixth interest each. They further allege that the children of testator’s deceased sister, Mattie Griffin Doss, were devised an undivided one-third of the estate being a one-fifteenth interest each.

The duty of a court in construing a will is to ascertain and give effect to the testator’s intentions. In arriving at such intention the court must, if possible, consider the entire document rather than a particular sentence, clause, phrase or word. Malone v. Malone, 379 So.2d 926 (Miss.1980); Cross v. O’Cavanagh, 198 Miss. 137, 21 So.2d 473 (1945).

The question concerning the meaning of Article III arises because the language devising the testator’s estate to his ten nieces and nephews by name and in equal shares is followed by the phrase “per stirpes and not per capita,” seemingly a contradiction. The issue appears to be one of first impression for this court as it was for the trial court which construed Article III of the will to mean that each of the designated legatees and devisees should share in the estate equally, or differently put, the trial court determined the testator did not intend the phrase “per stirpes and not per capita” to overcome his previous language designating his devisees by name and specifying they were to take in equal shares.

The appellants, petitioners below, contend for reversal that the will is clear and unambiguous, and expresses the testator’s intent that his nieces and nephews take by representation, and not per capita. Alternatively, if there be an ambiguity, they contend that following accepted rules of construction laid down by this court, Article III of the will admits only one construction, and that is for a per stirpital distribution. They argue that a different holding would require the will to be read as if the phrase “per stirpes and not per capita” had never been written and further that the phrase must be given its commonly accepted meaning and to ignore it would be contrary to the rule that language will not be stricken from a will unless it is necessary to give effect to the intention of the testator, citing Ferguson v. Morgan, 220 Miss. 266, 70 So.2d 866 (1954), Cooper v. Simmons, 237 Miss. 630, 114 So.2d 614, 116 So.2d 215 (1959).

Since the troublesome phrase cannot and should not be stricken, it becomes the Court’s duty to follow such cases as Cross v. O’Cavanagh, 198 Miss. 137, 21 So.2d 473 (1945), wherein it is said, “[t]he paramount duty of the court is to ascertain the intent of the testator, gathered from the language used, in the light of the circumstances surrounding the execution of the will, and give effect to such intent unless contrary to law or public policy.” The construction is to be guided by the principle that technical terms used in a will should be given their commonly accepted meaning. First National Bank of Laurel v. Commercial National Bank and Trust Company, 247 Miss. 677, 157 So.2d 502 (1963). The appellants acknowledge the general rule of construction that the naming of heirs who take under a will creates a presumption of per capita intent, Byrd v. Wallis, 182 Miss. 499, 181 So. 727 (1938). However, it is contended this presumption must yield to a per stirpes construction where such intent appears from the will as a whole.

The appellants argue the phrase “in equal shares” followed immediately and modified by “per stirpes and not per capita” signifies the testator’s intention that equal shares be assigned to each group (the heirs of the testator’s deceased brothers and sisters) for a per stirpital distribution. It is then contended that where words such as “equally” and “share and share alike” are used in conjunction with a division within a class, they import an equal per capita distribution within the division or group thereby giving meaning to the phrase “per stirpes” which created the division, as well as the phrase “in equal shares.”

The difficulty with this argument, in our view, is that it does not overcome the equally strong presumption that the testator named his nieces and nephews as devisees without mentioning his deceased brothers and sisters by name or otherwise indicating equal division within the groups created by per stirpital representation. Whether the testator fully understood the meaning of the latín phrase “per stirpes” is not for us to speculate, but we do think that had he intended his nieces and nephews to take under the will other than in equal shares, there surely were less difficult means for him to express such intent.

The two latin words, “per stirpes”, are defined in Black’s Law Dictionary, Fourth Edition, as meaning, “By roots or stocks; by representation. This term, derived from the civil law, is much used in the law of descents and distribution, and denotes that method of dividing an intestate estate where a class or group of distributees take the share which their deceased would have been entitled to, taking thus by their right of representing such ancestor, and not as so many individuals.”

As mentioned the phrase is used in the law of descent and distribution and denotes the method of dividing an intestate estate where a class of distributees take the share to which their deceased ancestor would have been entitled. In W. Morse, Wills and Administration in Mississippi, § 11:6 (1968), the rule is explained as follows:

As a general rule a devise or bequest to “heirs,” “heirs at law,” “legal heirs,” “heirs and assigns,” “representatives,” “next of kin” or “descendants” the law pressumes [sic ] the intention of the testator to be that the beneficiaries take per stirpes and not per capita, although such presumption is easily overcome by words indicating they should take per capita.
Per capita and per stirpes have definite meaning in law and are presumed to be used in their technical sense unless a contrary intention appears in the context of the will. “Per capita” means “by the head” or “share and share alike” according to the number of individuals. “Per stirpes” means “by the roots” or “stock” or by representation. It denotes the method of distribution where a class or group of individuals or distributees take the share which their “stock” (deceased ancestor) would have been able to take in a per capita distribution. “Equal division” as a general rule means a per capita and not a per stirpes gift under the will.

The appellees contend the phrase “per stirpes” has no application to primary legatees, those named in the will, but applies only to substituted legatees or devisees. They cite In Re Ives’ Estate, 161 Misc. 60, 291 N.Y.S. 981 (Sur.Ct.1936), as supporting their contention. The will in it used language similar to that in the present case. It reads:

FOURTH. I give, devise and bequeath to my said wife, Jessie Ives, the use, benefit and enjoyment of all the rest, residue and remainder of my property of every manner, kind and description, to have and to hold the same and the rents, incomes and profits therefrom for and during her natural lifetime. Upon the decease of my said wife and the termination of her said life use of such property, I then give, devise and bequeath the corpus or principal thereof to my nephews and nieces, share and share alike per stirpes not per capita. (Emphasis added.)

The testator was survived by four nephews and five nieces. One nephew was the son of a brother of the decedent; one niece, the daughter of a sister; and the other nieces and nephews were the children of another brother.

The issue, therefore, was fairly identical to that in this case — should the division be made in equal shares among the nieces and nephews, or should reference be made to their parentage for distribution. The Court held:

The direction in the will that, upon the death of testator’s wife, the fund be distributed to his nephews and nieces “share and share alike,” denotes a division among those who answer the description of the class mentioned in equal shares. After the words quoted appears the following phrase, “per stirpes and not per capita.” What significance is to be given such expression? What is its meaning, if any, when coupled with a direction plainly calling for an equal division among the nephews and nieces? The gift is to a class. Testator does not refer to the legatees as children or the next of kin of his brothers and sisters. He makes no reference to those who are to receive the fund at the termination of the life estate in any manner that conveys the thought that they are to take according to stock or root. His nephews and nieces are the primary legatees; they take as purchasers and not by representation. If the expression “per stirpes not per capita,” found at the end of the fourth clause in the will, has any force, it cannot be given effect as relating back to the immediate ancestors of the nephews and nieces in order to determine the manner of distribution. Per stirpes does not go back past the class that are the legatees.” 291 N.Y.S. at 983. (Citations omitted. Emphasis added.)

In the case of Johnson v. Swann, 211 Md. 207, 126 A.2d 603 (1956), concerning the phrase “share and share alike, per stirpes and not per capita” the Maryland court held the words “per stirpes” were not applicable to designated legatees, or legatees designated as a class, but were ordinarily appropriate when used with respect to substitutional gifts to substituted legatees in the event of the death of a primary legatee. This same theory was expressed in St. Louis Union Trust Company v. Greenough, 282 S.W.2d 474 (Mo.1955), wherein the Missouri court in construing the will of the late Adolphus Bush held among other things the following:

Therefore, the expression “per stirpes and not per capita” describes or designates a mode or method by which gifts to substituted legatees are to be distributed. Under a per stirpes distribution, the substituted legatees collectively take the share which their respective deceased ancestor would have taken if he had been living. Consequently, it is clear that the words “per stirpes and not per capita” are not strictly applicable to, and are technically inappropriate when used in connection with, named legatees who are primary takers. Id. at 478.

We think these cases particularly persuasive to a holding by this court that the phrase “per stirpes and not per capita” has no application to devisees in a will designated by name and to the share they are to take under the will, but rather the phrase has application only to substituted legatees with the shares they take specified by the laws of descent and distribution.

The appellants argue, however, that the case law of our state on construction of wills requires a retrospective application of the phrase “per stirpes and not per capita” and not a prospective application as substituted legatees would require. They cite Rodgers v. Rodgers, 218 Miss. 655, 67 So.2d 698 (1953); Cross v. O’Cavanagh, 198 Miss. 137, 21 So.2d 473 (1945); Thomas v. Thomas, 97 Miss. 697, 53 So. 630 (1910) as well as W. Morse, on Wills and Administration in Mississippi, § 11:6 (1968), in support of a retrospective application of per stirpital construction. We do not think these cases on their facts lend themselves to such unequivocal conclusion. We glean from them the general rule that a devise or bequest to “heirs”, “the heirs”, etc., without further identification, raises a presumption that the testator intended such beneficiaries take per stirpes and not per capita, and further, that such presumption is easily overcome by words indicating they should take per capi-ta. We, therefore, are of the opinion the appellants’ rebuttal argument is not conclusive on the point.

Moreover, we are of the opinion we cannot presently adopt a per stirpes retrospective application so as to express an intent on the part of the testator that the named devisees take the share their deceased ancestor would have taken had he or she lived because this would contradict the testator’s expressed intention that his nephews and nieces take in equal shares.

From the will before us we again observe that the testator made no reference whatsoever to his deceased brothers and sisters, the ancestors of his nieces or nephews. We conclude the phrase “per stirpes and not per capita” in the will before us expresses the testator’s intention that in the event one of the designated devisees died prior to the effective date of the will, the deceased devi-see’s share would pass to the devisee’s heirs per stirpes and be distributed by the laws of descent and distribution. By this construction the testator’s intention that his named nephews and nieces take in equal shares is not transgressed, leaving it meaningful; additionally the following phrase “per stirpes and not per capita” has meaning in that it makes provision for a contingency that could not be ascertained at the time the will was written as well as preventing the possibility of a lapsed legacy with intestate descent. We, therefore, affirm the trial court.

AFFIRMED.

SMITH and SUGG, P. JJ., and WALKER, BROOM, ROY NOBLE LEE, BOWLING and DAN M. LEE, JJ., concur.

HAWKINS, J., takes no part.


text:
    Virgie L. GETTIS, Jr., Administrator C.T.A. of Estate of Virgie L. Gettis, Deceased v. Rosetta McALLISTER, Executrix of the Estate of Nancy Devins Gettis, Deceased.
    No. 53372.
    Supreme Court of Mississippi.
    March 24, 1982.
    Michael D. Jones, Aberdeen, for appellant.
    Elizabeth Ann Odom, Aberdeen, for ap-pellee.
    Before PATTERSON, C. J., and ROY NOBLE LEE, and HAWKINS, JJ.
   PATTERSON, Chief Justice,

for the Court:

Virgie L. Gettis, Jr., Administrator C.T.A. of the estate of Virgie L. Gettis, deceased, filed suit in the Chancery Court of Monroe County against the executrix of the estate of Nancy Devins Gettis. The petitioner sought to have cancelled the renunciation of the will of Virgie L. Gettis by Nancy De-vins Gettis, his widow, now deceased.

The issue presented is whether the widow’s renunciation accorded with Miss.Code Ann. § 91-5-25 (Supp.1981), which provides in part:

§ 91-5-25. Right to renounce will in certain cases.
When a husband makes his last will and testament and does not make satisfactory provision therein for his wife, she may, at any time within ninety (90) days after the probate of the will, file in the office where probated a renunciation to the following effect .... (Emphasis added)

The facts were stipulated as follows:

1. Virgie L. Gettis died testate on July 18, 1974.

2. The named executrix, Nancy Devins Gettis, widow of Virgie L. Gettis, petitioned for letters testamentary on April 10, 1975. With the petition she filed the original will, affidavits of the subscribing witnesses, and oath of the executrix.

3. On the same date, April 10, 1975, Nancy Devins Gettis filed her renunciation of the provisions made for her by the will of her deceased husband. The renunciation was in the form prescribed by statute.

4. The petition to admit the will to probate and grant letters testamentary was not followed by any order admitting the will to probate or granting letters testamentary.

5. The will was not recorded in the will book during the executorship nor was publication ever made giving notice to creditors of the estate.

6. Nancy Devins Gettis died June 26, 1979.

The petitioner in the trial court contended the widow’s renunciation was ineffective and invalid because Miss.Code Ann. § 91-5-25 (Supp.1981), permits a surviving spouse to renounce a will only after it has been admitted to probate. From this premise it was contended that the will of Virgie L. Gettis had only been filed and not probated and therefore the renunciation did not come within the 90 day period following probate but was before probate and hence was invalid. The trial court was of the opinion the widow’s renunciation was in proper form and filed within the permissible limits of Section 91-5-25. We affirm.

In W. Morse, Wills and Administration in Mississippi, § 10:2 (1968), the purpose of probation of a will is stated, “The admission or rejection of a will to probate is a judicial determination of the character and validity of the instrument as a will.” Of course, until the will is admitted to probate, the testamentary writing has no effect as a will. The appellant asserts, however, that in this case the will had no force and effect during the widow’s life time because it was never duly probated. This position overlooks the case of Edwards v. Edwards, 193 Miss. 889, 11 So.2d 450 (1943), wherein it was held:

Renouncement does not affect the validity of the will; it affects only the amount of property which the parties receive — • the renouncer as heir of decedent and the others as beneficiaries under the will. The will stands. But a successful contest establishes that there is no will. Therefore, renouncement cannot be substituted for a contest of a will. Id. at 894, 11 So.2d at 451-52.

See also Jefcoat v. Powell, 235 Miss. 291, 108 So.2d 868 (1959), restating this principle announced in Edwards.

In the present case we conclude the renouncement of the will had no effect upon the will’s validity but went only to the quantum of the widow’s inheritance as pronounced in Section 91-5-25.

We are of the opinion, as was the trial court, that Section 91-5-25 is remedial and should be given an interpretation with the broadest possible protection to the surviving spouse. We are persuaded to this viewpoint by In Re Stitzer’s Estate, 103 Col. 529, 87 P.2d 745 (1939), 120 A.L.R. 1266, as it seems to be analogous. In Stitzer, the husband, while a will contest was pending and before • the will had been admitted to probate filed a renunciation. The Colorado Court held:

The obvious purpose of the statute is to assure timely notice to the court, to those in charge of the administration of the estate, and to all persons interested therein, that the surviving spouse is dissatisfied with the will and elects to take and receive one-half of the estate under the statute. We are unable logically to perceive the difference in efficacy as notice between an election filed in the probate proceedings before the admission of the will and one filed afterwards within the limitation period. Nor are legal rights prejudiced by the filing of the election before the admission of the will.

In construing the phrase “within 90 days after the probate of the will” we think the legislature intended to establish a limited time within which a surviving spouse’s right of renunciation shall cease so that the renunciation would precede the final distribution of the estate as well as inform all interested parties of the surviving spouse’s election. In this case the widow’s renunciation, albeit before formal probate, had the effect of advising the court and all parties of her election the same as they would have been advised if timely made after probate. In our opinion, this conforms with the legislature’s intention and in no wise prejudices any of the parties to this suit.

We, therefore, affirm the decree of the trial court.

AFFIRMED.

SMITH and SUGG, P. JJ., and WALKER, BROOM, ROY NOBLE LEE, BOWLING, HAWKINS and DAN M. LEE, JJ., concur.


text:
    Ronald C. HOWELL v. STATE of Mississippi.
    No. 53056.
    Supreme Court of Mississippi.
    March 24, 1982.
    Johnston & Steinberger, Albert S. Johnston, III, Pascagoula, for appellant.
    Bill Allain, Atty. Gen. by Amy Whitten, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before SUGG, P. J., and BROOM and BOWLING, JJ.
   BOWLING, Justice,

for the Court:

Appellant was indicted, tried and convicted in the Circuit Court of Stone County of the crime of armed robbery. The lower court sentenced him to eight years in the custody of the Mississippi Department of Corrections.

There are several assignments of error, but we need only to consider one, as it requires the reversal of this case for a new trial.

The assignment concerns the closing argument to the jury by the district attorney. What occurred may best be described by quoting what is shown by the record:

BY MR. NECAISE:
Another one of those situations where you’re trying to confuse the Jury. Trying to put the burden on you that you are about to make an awful mistake. Let me say this to you, ladies and gentlemen, your decision, if you find him guilty, will not be the final .... There’s a Court above this that will look at this and see if you all made the right decision.
BY MR. STEINBERGER:
I’m going to object to that, Your Hon- or. That is not a correct statement of the law. The Jury decides the facts and the appellate court is strictly, as Mr. Necaise well knows and that’s a misleading statement.
BY THE COURT:
I’ll sustain the objection.
BY MR. NECAISE:
Judge, he talked about, you know, about this ....
BY THE COURT: (Interposing)
... up to the Supreme Court, I’ll allow you to ...
BY MR. STEINBERGER: (Interposing) And we would like to have the Jury instructed to disregard that.
BY THE COURT:
They will.
BY MR. NECAISE:
. .. the Supreme Court . ..
BY MR. STEINBERGER: (Interposing) And ask for a mistrial, if Your Honor please.
BY THE COURT:
Overruled.
BY MR. NECAISE:
The Supreme Court of the State of Mississippi has a right to look at this ease and see if the laws have been followed in this case.
BY MR. STEINBERGER:
That’s not a correct statement of the law either, may it please the Court. BY THE COURT:
I’ll sustain it. I’ll let you say that he has a right to appeal.
BY MR. NECAISE:
He has the right to appeal and have another panel of Judges, solely, to look at this issue. If they find that it wasn’t done properly, they will send it back or they can turn him loose, up there, if they find that ...
BY MR. STEINBERGER: (Interposing) May it please the Court, the same objection on this entire subject matter, if the Court, if Mr. Necaise in questioning
BY THE COURT: (Interposing) Overruled.
BY MR. NECAISE:
You are not the final judges of this and if he appeals it, he has the right to be out on bond ...
BY THE COURT: (Interposing)
I’ll sustain it, I’ll sustain the objection to that . ..
BY MR. JOHNSTON: (Interposing)
Yes, sir, we’ve got to object because they are the triers of facts.
BY THE COURT:
The Jury don’t consider that.
BY MR. STEINBERGER:
We move for another mistrial and .. .
BY THE COURT: (Interposing)
Overruled.
BY MR. NECAISE:
So they, you are not going to be the final judges. You are going to make a decision here in a short time as to what you feel the verdict should be in this case, based upon the evidence that has come to you.
They say well, they try to say well, Mary Murphy, oh, she didn’t lie, she was just mistaken, she was just mistaken. You are going to have to make that decision as to whether you think Mary Murphy was right.
You people are going to say whether the law for armed robbery in Stone County is going to be upheld by your verdict. You will write the law as to what the penalty is for armed robbery in Stone County, whether a person has a right to come into a man’s business, and two little ladies there, and put a gun on them and say give me your drugs. You will write the law.
You know, we don’t have much crime in Stone County and do you know why, I’ve had an opportunity to be with you for sixteen years, six years as Assistant District Attorney and almost ten years as Your District Attorney . . .
BY MR. STEINBERGER: (Interposing)
I’m going to object to that, Your Hon- or. It’s . . .
BY THE COURT: (Interposing)
I’ll overrule you on that but I want to make this statement to the Jury concerning the appeal, uh, you disregard the argument concerning the appeal. But, you don’t take that into consideration in reaching your verdict in this case. You decide the case here strictly on the facts and the evidence that has come before you here and relate that only to your verdict and not extraneous matters that may have been raised by either side. You are not to consider the right of appeal, uh, the right to appeal in your verdict.
But, I’ll overrule you on the other. All right.

We can readily see that when the district attorney interjected the matter of appeal there was an objection and the lower court sustained the objection, but it did not instruct the jury to disregard the district attorney’s statement; although the court was requested so to do. A mistrial was requested and denied.

The district attorney again got on the subject of the Supreme Court checking the case after it had been decided by the jury. Then for the third time, a similar statement was repeated to the jury, advising them that if they did not act “properly” then the Supreme Court would correct their actions. Again, appellant’s attorney requested a mistrial and it was denied. After the fourth time the district attorney told the jury “you are not going to be the final judge,” and after the idea had been pounded into their heads, the trial judge instructed the jury not to take into consideration a possible appeal of its verdict. In our opinion this came too late. The damage had been done over and over again by the district attorney. The Alabama Supreme Court in Beard v. State, 19 Ala.App. 102, 95 So. 333 (1923), set out the principle prohibiting the prosecution from making the above described error by stating:

The only effect of this argument would be to lead the jury into the mistaken belief that their findings on the facts could be reviewed by a higher tribunal and thereby lessen the sense of responsibility resting on them, and while the judgment perhaps would not for this alone be reversed, it certainly should weigh in consideration of the motion for new trial.
The defendant should have been granted a new trial on his motion, and for this error the judgment is reversed, and the cause is remanded.

The Georgia Supreme Court in Hammond v. State, 156 Ga. 880, 120 S.E. 539 (1923), stated as follows:

“If the state has not made out a case, and they convict this man, and the evidence does not authorize it, nobody will set it aside quicker than the judge, and if refused may be appealed to the Supreme Court. If he should be turned loose, it was at an end.”
We are of the opinion that argument of this kind should not have been employed. It tended to lessen the sense of the peculiar and sole responsibility resting on the jury. The question for their solution was the sufficiency of the evidence, under the rules of law relating to circumstantial evidence, to convince their minds beyond a reasonable doubt of the guilt of the accused. The suggestion that, if they should convict him, and the evidence did not authorize it, the judge would set it aside should not have been made. Whether the use of this language required the grant of a mistrial we do not decide. We contend ourselves with disapproving it, as a new trial is granted upon other grounds, and the language will not be used on the next trial.

The Indiana Supreme Court in Kelley v. State, 210 Ind. 380, 3 N.E.2d 65 (1936) stated:

“That in the event the defendant is convicted he may then appeal his case to the Supreme Court of Indiana and under a law recently enacted he would be permitted to be out on bond during that appeal and that in the event he was convicted that he would bring Judge Pigg down here and others, and ask this court to suspend his sentence and the court had a right to suspend such a sentence.”
We must assume that the purpose of the statement was to minimize in the minds of the jurors the seriousness of a verdict of guilty. The defendant’s just interests demanded that the jurors recognize their full and final responsibility; and any statement by counsel for the state which tended to weaken this sense of responsibility was improper and, presumably, harmful.

In regard to arguments in criminal cases, this Court in Clemons v. State, 320 So.2d 368 (Miss.1975), set out the following principles:

The purpose of the closing argument before a jury is to enlighten the jury. It is the duty of the district attorney to fairly sum up and point out the points presented by the state on which the prosecution contends a verdict of guilty is proper. Welch v. State, 114 Miss. 708, 75 So. 548 (1917). On the other hand, it is the constitutional right of the accused to be heard by himself or counsel. It has been said that:
“The right of argument contemplates liberal freedom of speech and range of discussion confined only to bounds of logic and reason; and if counsel’s argument is within the limits of proper debate it is immaterial whether it is sound or unsound, or whether he employs wit, invective, and illustration therein. Moreover, figurative speech is legitimate if there is evidence on which it may be founded. Exaggerated statements and hasty observations are often made in the heat of debate, which, although not legitimate, are generally disregarded by the court, because in its opinion they are harmless. There are, however, certain well-established limits beyond which counsel is forbidden to go; he must confine himself to the facts introduced in evidence and to the fair and reasonable deductions and conclusions to be drawn therefrom, and to the application of the law, as given by the court, to the facts.
Subject to these limitations, the prosecuting attorney may with perfect propriety appeal to the jury with all the power, force, and persuasiveness which his learning, skill, and experience enable him to command, and of this character of argument accused may not complain even though he feels that his conviction may be traceable more directly to the argument of the prosecuting attorney than to the facts proved. Similarly, defense counsel is entitled freely to argue all questions properly within the issues of the case.” 23 A C.J.S. Criminal Law § 1090, at 128-29 (1961).

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

“Undoubtedly, there is a limit to the latitude to be allowed to counsel in addressing a jury, and it is the duty of the court to interfere to prevent an abuse of the privilege of counsel, to the perversion of justice, by misstating facts or commenting on facts not in evidence. A large discretion in this matter must be exercised by the circuit judge. It is a very delicate duty; for he must be cautious not unduly to abridge the liberty of counsel, and, in restraining him within proper limits, must not deny him the full liberty of discharging his important duties, in enforcing his views of the law and the evidence. ‘His illustrations may be as various as are the resources of his genius; his argumentation as full and profound as his learning can make it; and he may, if he will, give play to his wit, or wing to his imagination.’
Where the privilege of counsel had been abused to such an extent as to induce the belief or probable injustice as its result, and the court below had not properly interposed, we would not hesitate to apply the corrective; but in this case we see no ground for interference.” 56 Miss, at 309-10.
So long as counsel in his address to the jury keeps fairly within the evidence and the issues involved, wide latitude of discussion is allowed; but, when he departs entirely from the evidence in his argument, or makes statements intended solely to excite the passions or prejudices of the jury, or makes inflammatory and damaging statements of fact not found in the evidence, the trial judge should intervene to prevent an unfair argument. Moreover, this Court will not withhold a reversal where such statements are so inflammatory [in the judgment of his Court] as to influence the verdict of the jury, and thus prevent a fair trial.

In Tudor v. State, 299 So.2d 682 (Miss.1974), in reversing and remanding the cause, we stated as follows:

Appellant’s counsel failed to object to some of the above matters, objected to others with the objection being sustained, and in some instances the court instructed the jury to disregard the testimony. In other instances, the objection was overruled and the evidence admitted. Some of the errors were more serious than others and although some of them may not alone constitute reversible error, we have no hesitancy in finding that a combination of all of the above deprived the appellant of his due process right to a fair and impartial trial. Incompetent evidence, inflammatory in character, when presented to a jury carries with it a presumption that it was harmful. McDonald v. State, 285 So.2d 177 (Miss.1973). We will reverse a conviction unless it can be said with confidence that the inflammatory material had no harmful effect upon the jury. Coleman v. State, 198 Miss. 519, 23 So.2d 404 (1945). In McDonald, supra, Justice Broom speaking for the Court said:
It is error in the course of a trial where one is charged with a criminal offense for the state to inject extraneous and prejudicial matters and lay them before the jury. A combination of such instances may become fatal error and ground for reversal even though the court sustains objections to such questions ... One of the ingredients of a fair and impartial trial is that an accused person should be tried upon the merits of the case. Expressing it another way, the question of guilt or innocence of the crime charged should be received by the jury unhampered by any suggestion or insinuation of any former crime of misconduct that would prejudice jurors... We commend vigorous prosecutions so long as they are conducted within the rules of evidence. Our adversary system of jurisprudence does not contemplate that attorneys for either side will be completely passive or indifferent during court trials. Yet, fundamental fairness requires that any defendant should not be subjected to testimony and tactics which are highly inflammatory and prejudicial as shown by the record before us. See Allison v. State, 274 So.2d 678 (Miss.1973); Kelly v. State, 278 So.2d 400 (Miss.1973); and Wood v. State, 257 So.2d 193 (Miss.1972). (285 So.2d at 180).
We are of the opinion that the appellant was subjected to such irrelevant, inflammatory and prejudicial evidence that he was effectively denied his right to a fair and impartial trial. Therefore, the case must be reversed and remanded for a new trial for another jury to determine his guilt or innocence.

One of the statements made by the District Attorney in his closing argument was “you are not the final judges of this and if he appeals, he has the right to be out on bond.” This is an inaccurate statement of the law and could have been very misleading to the jury. A person convicted of certain felonies, including robbery, is not entitled to bail since the applicable statute was passed in 1880, unless the court in its discretion decided that for some reason justice would be best served by bail being granted. The person convicted of robbery has no automatic right to bail. Section 99-35-115, Mississippi Code 1972 Annotated.

We, therefore, are required to hold that the district attorney, although he was prosecuting vigorously, a duty which is to be commended, went beyond the bounds of giving the appellant a completely fair and impartial trial by injecting into the closing argument the instructions to the jury, both directly and indirectly by implication, that if they should make a mistake, it would be corrected. The jury was not informed that the jurors only were the ones who determined the facts, not the appellate court. Just the opposite was left in the minds of the jurors. The quoted parts of the argument could only leave in the jurors’ minds that if they decided a close, contradicted fact and found the defendant guilty thereby, the appellate court could change that finding. The actions of the trial court were not sufficient to cure the error.

REVERSED AND REMANDED.

PATTERSON, C. J., SMITH and SUGG, P. JJ., and WALKER, BROOM, ROY NOBLE LEE, HAWKINS and DAN M. LEE, JJ., concur.


text:
    Leigh Barrett LATIMER, Executrix of Est. of D. C. Latimer, Individually, and as Principal Devisee Under Last Will and Testament of D. C. Latimer v. SANDALWOOD HOMEOWNERS ASSN.
    No. 53311.
    Supreme Court of Mississippi.
    March 24, 1982.
    Powell & Fancher, Joe R. Fancher, Jr., Canton, for appellant.
    Shell, Buford, Bufkin, Callicutt & Perry, Douglas R. Duke, Jackson, for appellee.
   Appeal from Chancery Court, Madison County; G. Milton Case, Chancellor.

Before PATTERSON, C. J., and ROY NOBLE LEE and DAN M. LEE, JJ.

AFFIRMED.


text:
    Norman JONES v. STATE of Mississippi.
    No. 53362.
    Supreme Court of Mississippi.
    March 24, 1982.
    William T. Bailey, Lucedale, for appellant.
    Bill Allain, Atty. Gen. by Frankie Walton White, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Greene County; Robert T. Mills, Judge.

Before SMITH, P. J., and WALKER and DAN LEE, JJ.

REVERSED AND REMANDED.

PATTERSON, C. J., SUGG, P. J., BROOM, ROY NOBLE LEE, BOWLING and HAWKINS, JJ., concur.


text:
    Ralph WASHINGTON v. STATE of Mississippi.
    No. 52993.
    Supreme Court of Mississippi.
    March 24, 1982.
    M. Charles May, C. Eiland Harris, Jackson, for appellant.
    Bill Allain, Atty. Gen. by Amy Whitten, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Hinds County; Breland Hilburn, Judge.

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

AFFIRMED.

PATTERSON, C. J., and BROOM, ROY NOBLE LEE, and BOWLING, JJ., concur.

SMITH, P. J., and DAN M. LEE, J., specially concurring.


text:
    Edward ROSS v. STATE of Mississippi.
    No. 53089.
    Supreme Court of Mississippi.
    March 24, 1982.
    Leo E. Provine, Grenada, for appellant.
    Bill Allain, Atty. Gen. by Charles W. Maris, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Grenada County; Clarence E. Morgan, Jr., Judge.

Before WALKER, BROOM and HAWKINS, JJ.

AFFIRMED.

PATTERSON, C. J., SMITH and SUGG, P. JJ., and ROY NOBLE LEE, BOWLING and DAN M. LEE, JJ., concur.


text:
    Rayford ANDERSON, Sr. v. STATE of Mississippi.
    No. 53062.
    Supreme Court of Mississippi.
    March 24, 1982.
    Thomas H. Pearson, Clarksdale, for appellant.
    Bill Allain, Atty. Gen. by Billy L. Gore, Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Coahoma County; Elzy J. Smith, Judge.

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

AFFIRMED.

PATTERSON, C. J., SMITH, P. J, and WALKER, ROY NOBLE LEE, HAWKINS and DAN M. LEE, JJ., concur.


text:
    Ray E. FERNANDEZ v. STATE of Mississippi.
    No. 53085.
    Supreme Court of Mississippi.
    March 24, 1982.
    Blackwell & Galloway, Ben F. Galloway, III, Gulfport, for appellant.
    Bill Allain, Atty. Gen. by Mark A. Chinn, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Harrison County; J. Ruble Griffin, Judge.

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

REVERSED AND REMANDED.

PATTERSON, C. J., SMITH, P. J., WALKER, ROY NOBLE LEE, HAWKINS and DAN M. LEE, JJ., concur.


text:
    Denny RUIZ v. STATE of Mississippi.
    No. 53107.
    Supreme Court of Mississippi.
    March 24, 1982.
    J. W. Miller, Biloxi, for appellant.
    Bill Allain, Atty. Gen. by Robert D. Find-ley, Sp. Asst. Atty. Gen., Jackson, for appel-lee.
   Appeal from Circuit Court, Harrison County; J. Ruble Griffin, Judge.

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

AFFIRMED.

PATTERSON, C. J., SMITH, P. J., WALKER, ROY NOBLE LEE, HAWKINS and DAN M. LEE, JJ., concur.


author: HAWKINS, Justice,

text:
    Ollie ARRINGTON v. STATE of Mississippi.
    No. 53325.
    Supreme Court of Mississippi.
    March 31, 1982.

      Carl D. Ford, Charles G. Blackwell, Laurel, for appellant.
    Bill Allain, Atty. Gen. by Robert D. Find-ley, Sp. Asst. Atty. Gen., Jackson, for appel-lee.
    Before SUGG, P. J., and ROY NOBLE LEE and HAWKINS, JJ.
   HAWKINS, Justice,

for the Court:

Ollie Arrington appeals from a conviction and sentence of 50 years by the Circuit Court of Jones County for the rape of a fourteen year old child. We affirm.

The only question we address on appeal is whether or not the circuit judge erred in admitting into evidence a transcript of Ar-rington’s testimony at a previous trial.

Arrington’s first trial resulted in a mistrial. At the subsequent trial, Arlington again testified in his own behalf, and the State offered in rebuttal a transcript of his testimony at the first trial. Arrington now argues that a proper predicate or foundation was necessary prior to the introduction of this transcript.

Arrington was a party, not simply a witness, and therefore the transcript of his testimony at the previous trial was competent, either as part of the State’s case in chief or rebuttal, as an admission of the defendant. White v. Weitz, 169 Miss. 102, 152 So. 484 (1934); Roney v. State, 167 Miss. 827, 150 So. 774 (1933); Steele v. State, 76 Miss. 387, 24 So. 910 (1898); See generally, 23 C.J.S. Criminal Law § 892(b) (1961).

The admission of this transcript in rebuttal, after Arrington had taken the stand in his own defense in the second trial, was within the discretion of the trial judge. Even if cumulative or repetitive, it was harmless error. If contradictions or discrepancies existed between his testimony in the first and second trials, he should have requested surrebuttal to explain them.

Upon the argument that the sentence imposed was excessive because greater than Arrington’s reasonable life expectancy, we note the trial judge found Arring-ton to be 17 years of age, and took into consideration his height and health, following which he sentenced Arrington to serve a term of fifty (50) years. The 1980 Statistical Abstract of the United States, published by the United States government, shows the life expectancy of the average black male in 1978, 17 years of age, to be 50.2 years.

The sentence was therefore not beyond the reasonable life expectancy of the defendant.

AFFIRMED.

PATTERSON, C. J., SMITH and SUGG, P.JJ., and WALKER, BROOM, ROY NOBLE LEE, BOWLING and DAN M. LEE, JJ., concur.


text:
    James Earl BURNS v. STATE of Mississippi.
    No. 53138.
    Supreme Court of Mississippi.
    March 31, 1982.
    M. Charles May, C. Eiland Harris, Jackson, for appellant.
    Bill Allain, Atty. Gen. by Robert D. Find-ley, Sp. Asst. Atty. Gen., Jackson, for appel-lee.
   Appeal from Circuit Court, Hinds County; Reuben V. Anderson, Special Judge.

Before PATTERSON, C. J., and ROY NOBLE LEE and DAN M. LEE, JJ.

AFFIRMED.

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


text:
    CITY OF JACKSON, Miss. v. DEPENDENTS OF Wilbur Charles HAYS, Dec’d.
    No. 53390.
    Supreme Court of Mississippi.
    March 31, 1982.
    David L. Love, Jackson, for appellant.
    Cupit & Maxey, Glenda W. Tomlinson, Jackson, for appellee.
   Appeal from Circuit Court, Hinds County; William F. Coleman, Judge.

Before PATTERSON, C. J., ROY NOBLE LEE and HAWKINS, JJ.

AFFIRMED.


text:
    Robert SHANNON v. STATE of Mississippi.
    No. 53276.
    Supreme Court of Mississippi.
    March 31, 1982.
    Chill, Chill & Dove, Luke Dove, Jackson, for appellant.
    Bill Allain, Atty. Gen. by Billy L. Gore, Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Hinds County; Reuben Anderson, Special Judge.

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

AFFIRMED.


text:
    G. W. ATWOOD, et ux. v. MISSISSIPPI POWER & LIGHT CO.
    No. 53313.
    Supreme Court of Mississippi.
    March 31, 1982.
    Ray S. Mikell, Kosciusko, for appellants.
    Wise, Carter, Child & Caraway, Charles T. Ozier, Jackson, Thornton, Guyton, Dorrill & Pettit, George L. Dorrill, Kosciusko, for appellee.
   Appeal from Special Eminent Domain Court, Attala County; Clarence E. Morgan, Jr., Judge.

Before SMITH, P. J., and WALKER and DAN M. LEE, JJ.

AFFIRMED.


text:
    In the Matter of R. E. G., A Minor.
    No. 53490.
    Supreme Court of Mississippi.
    March 31, 1982.
    Robert M. Koestler, Vicksburg, for appellant.
    Jerry W. Campbell, Vicksburg, for appel-lee.
   Appeal from Youth Court, Warren County; James E. Nichols, Judge.

Before PATTERSON, C. J., and ROY NOBLE LEE and DAN M. LEE, JJ.

AFFIRMED.


author: MADDOX, Justice.

text:
    MOBILE COMMUNITY ACTION, a non-profit corporation, and Nelva Simon, president of Mobile Community Action v. Charles HANKE, Mobile County, a body corporate and politic, and Non-Partisan Voters League, a non-profit corporation.
    80-630.
    Supreme Court of Alabama.
    March 19, 1982.
    Michael A. Figures, Mobile, for appellants.
    Willis M. Holloway, Jr., Mobile, for appel-lees.
   MADDOX, Justice.

This case involves the extent to which a circuit court may review, on a petition for writ of mandamus, the action of the board of directors of a private corporation. The trial court found that, under the bylaws and articles of incorporation of the corporation, the board of directors was under a legal duty to seat certain individuals on the board. We affirm.

Mobile Community Action (hereinafter referred to.as MCA) was organized under the laws of Alabama as a non-profit corporation and operates as an anti-poverty organization, funded by the federal government. The controlling authority of MCA is vested in a board of directors which is composed of representatives appointed in accordance with the articles of incorporation and the bylaws of the corporation.

MCA’s bylaws in pertinent parts provide that:

“The members of the Corporation shall also constitute the Board of Directors of the Corporation and should be comprised of three (3) groups: (1) Public officials; (2) Representatives of the poor; and (3) Representatives of the private sector. The membership of the Board of Directors shall not exceed Fifty-one (51) members and the total membership of this agency shall always be divisible by three (3). Public officials, or their representatives, serve at the pleasure of the designating officials and for as long as the public official is currently holding office. Memberships of the representatives of the poor and of private organizations will be for terms of one (1) year and until their successors are appointed or elected. Representatives of the poor and of private organizations are eligible for re-election or re-appointment to the Board, and may serve up to five (5) years, but no more than a total of ten (10) years. After serving five (5) years, a representative of the poor or of a private organization may not serve on the Board in any capacity for at least one (1) full year. Any resident citizen of Mobile County of good character and reputation shall be eligible for membership on the Board.
* * * * * ‘ *
“Exactly one-third (Va) of the total membership of the Board shall be comprised of elected public officials selected by the designating officials of this CAA, the Mobile County Commissioners. . . .
******
“Removal: The Board of Directors, by an affirmative vote of the majority of the Directors present at any regularly constituted meeting, may suspend or expel membership or terminate the membership of any Director, excluding public officials, who without sufficient excuse, fails to attend three (3) consecutive meetings of the Board. Such action by the Board of Directors may be taken at any meeting of the Board upon the initiative of a member and/or members of the Board. To remove a Director for any reason other than the above, the Board must show just and substantial cause.
“In the case of a public official, the Board will petition the designating officials to remove public officials or their representatives who [for] whatever cause, including absenteeism.”

On February 10, 1981, the Mobile County Commissioners wrote a letter to the chairman of MCA’s Board of Directors selecting five individuals for appointment to the Board of Directors, and on March 4, 1981, the County Commissioners wrote another letter and selected five more individuals for appointments to the Board. The Chairman of MCA’s Board of Directors refused to make the appointments stating:

“Nowhere does the Mobile Community Action Bylaws provide ‘that the Mobile County Commission shall annually appoint one third (Va) of the members to the Board of Directors from the public sector.’
“However, exactly one third of the total membership of the present Board is comprised of elected officials selected by the Mobile County Commission. All were seated at the Annual Meeting held on 17 December 1980, except Douglas Wicks, who was seated at a later meeting. The present Board of Directors will serve until December 1981, barring death or some other unforeseen reason.”

The county commissioners sought to require appointment of their selectees by filing a petition for mandamus in the Circuit Court of Mobile County. After hearing the facts of the case, the trial court issued the following order:

“ORDER
“This cause coming on to be heard on the 26th and 27th days of May, 1981, and the Court having heard testimony ore tenus and having received in evidence various exhibits, and counsel having argued orally, and the Court having eon-sidered the evidence and argument of counsel, the Court orders as follows:
“(a) That the Mobile County Commission is the designating official of Mobile Community Action members of the Board of Directors in the classification of Public Officials.
“(b) That the said designating official may appoint members of the Board of Directors of Mobile Community Action to fill the positions in the Public Sector, who serve at the pleasure of the designating official.
“(c) That the position held by an appointee of the designating official shall immediately terminate upon the loss of his elected or appointed public position.
“(d) That appointments to the Board of Directors of Mobile Community Action are appointments of individuals.
“(e) That only the appointee to the Board of Directors of Mobile Community Action may select his alternate or representative.
“(f) That Wiley Bolden, appointed from the Private Sector as representative of the Non-Partisan Voters League having already been seated on the Board of Directors of Mobile Community Action, no order is made with reference to the petition as it regards Non-Partisan Voters League.
“(g) That Frank Seltzer, Vera Marks, Edward Reese, Isaac Bowie, Robert C. Kennon, Jr., Wilbert Wetzel, John Gart-man, James B. Walters, Charles Hanke, James L. Bosarge and Douglas Wicks are the duly selected individuals to fill the positions from the Public Sector to the Board of Directors of Mobile Community Action.
“(h) That the appointment by the designating official automatically replaces others serving in those positions and their membership shall terminate at the time of the appointment of the new member.
“(i) That the Defendants forthwith seat the herein named appointees to membership on the Board of Directors of Mobile Community Action, having failed to show cause why they should not be seated pursuant to the order of this Court dated March 27, 1981, or be in the direct contempt of the orders of this Court.”

From this order, MCA filed this appeal setting forth as its argument that:

“It was improper for the circuit court on a petition for mandamus to overturn a decision of the board of directors of a private (quasi public) corporation where that decision is consistent with the bylaws, articles of incorporation and other corporate records and that decision was not violative of any statute, regulation or public policy and was not arbitrarily unjust nor capricious. It was also improper for the circuit court to try the case de novo on a mandamus petition.”
What is the law?

Mandamus is a writ which may be directed to a person, officer, corporation, or inferior court commanding the performance of a particular duty which results from the official station of the one to whom it is directed. 55 C.J.S. Mandamus § 1 (1948); Russell v. Lee, 282 Ala. 504, 213 So.2d 236 (1968). A corporation may be compelled by mandamus to perform a specific duty imposed on it by law, because the corporation is the recipient of a franchise from the state, and is subject to its visitatorial power. Furthermore, a writ of mandamus may be invoked to compel the performance of ministerial acts by corporate officers where the relator has a clear, legal right to the performance of such acts and the defendant has a corresponding duty to perform. Mandamus is appropriate to seat a person entitled to a corporate office where his title thereto has been adjudicated or is clear. 55 C.J.S. Mandamus §§ 211, 222 (1948).

Petitioner asserted before the trial court and the trial court found that MCA’s Board was not carrying out the legal duty placed upon it by the articles of incorporation and bylaws under which it was operating. The Board refused to follow the bylaws which expressly provided that representatives of the public sector were to serve at the pleasure of the Mobile County Commissioners, the designating officials under the bylaws; therefore, the Board’s refusal to seat the commissioners’ designees constituted an arbitrary and unjust usurpation of power. Mandamus was an appropriate remedy under these circumstances, because the facts clearly support the court’s finding that the board of directors of the corporation refused to abide by its own bylaws. The order of the trial court is due to be affirmed.

AFFIRMED.

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


text:
    FIRST COLBERT NATIONAL BANK v. SECURITY FEDERAL SAVINGS & LOAN ASSOCIATION and U. S. Fire Insurance Company.
    80-736.
    Supreme Court of Alabama.
    March 19, 1982.
    Stanley E. Munsey of Rosser & Munsey, Tuscumbia, for appellant.
    Donald H. Patterson of Patterson & Weathers, Florence, for appellee Security Federal Sav. & Loan Ass’n.
    Steve A. Baccus of Almon, McAlister, Ashe, Baccus & Smith, Sheffield, for appel-lee U. S. Fire Ins. Co.
   MADDOX, Justice.

The appellant states the central issue:

“Whether the trial court erred in granting summary judgments on the ground that the ‘statute of limitations’ of one year for redemption had run before plaintiff filed its bill of complaint.”

The pleadings in the cause show the following facts: Security Federal held a first mortgage on the property. First Colbert National Bank held a second mortgage on the property. On January 29, 1979, Security Federal foreclosed the first mortgage and Security Federal purchased the property at the foreclosure sale.

Security Federal, on October 18, 1979, sold the property to Ann T. Morrow, took a security interest from her and required her to furnish a policy of fire insurance affording coverage to protect its security interest for the unpaid purchase price. The sale to Ann Morrow was made subject to all rights of redemption.

Ann Morrow purchased a fire insurance policy from United States Fire Insurance Company insuring herself as owner of the property and further insuring Security Federal’s security interest for the unpaid purchase price.

The improvements on the property were destroyed by fire. United States Fire Insurance Company denied liability to the owner, Ann Morrow, but paid the debt owed by Morrow to Security Federal, which transferred its security interest and any claim to the property to United States Fire Insurance Company as provided for in the policy.

On January 29, 1980 (the foreclosure sale date was January 29, 1979), First Colbert made a demand of Security Federal pursuant to Code 1975, § 6-5-234, for a statement of the amount required to redeem. On February 7, 1980, Security Federal responded, but expressly declined to agree that First Colbert could or had timely attempted to redeem. The property was owned by Ann Morrow on January 29,1980.

First Colbert, on September 18, 1980, 1 year and 8 months after foreclosure, filed its complaint to redeem against Security Federal and United States Fire Insurance Company. First Colbert National Bank did not join the owner, Ann Morrow, as a defendant in the suit to redeem.

First Colbert contends that summary judgment was inappropriate because the one-year period within which to redeem is “not a fixed rule of limitations,” but should be applied only as an equitable principle of “laches.” First Colbert cites Caudle v. First Federal Savings & Loan Association of Sylacauga, 295 Ala. 274, 327 So.2d 911 (1976).

First Colbert contends that this case is an extraordinary case involving peculiar circumstances and that the one-year redemption period should not run against it. We have examined the pleadings, and we fail to find wherein First Colbert Bank alleged any facts which would make this an extraordinary case involving peculiar circumstances.

The case here is more like Purcell v. Smith, 388 So.2d 525 (1980), where the court discussed the requirements of law for redemption and held that “[ojrdinarily, unless a tender is excused by failure of the purchaser to respond to the demand for lawful charges within ten days, the complaint is defective if it does not show a tender of the amount due.” The Court opined:

“In Foerster v. Swift, supra', the re-demptioner filed her complaint for redemption one day before the expiration of the redemptive period. There was no tender. She made the written demand upon the purchaser one day prior to filing the complaint. In reversing the trial court for failure to dismiss the complaint, this court said:
“ ‘It thus appears complainant places some reliance upon section [6-5-234] of the Code ..., in that she avers written demand was made upon respondent for a statement in writing of the debt and lawful charges claimed, but this demand was made just one day previous to the filing of the bill, while the above-cited statute gave respondent a period of ten days within which to com-' ply therewith. True, complainant was forced to file the bill at that time to come within the statutory period of two years [now one year], but the above-noted section was adopted primarily for the benefit of the redemp-tioner, and, if he delays to make the demand as therein authorized for a statement until too late for the purchaser or his vendee to have the benefit of the ten-day period allowed by the statute for a compliance, then he can claim no benefit thereunder. Any hardship resulting from a loss of the privileges therein bestowed is the result of his own lack of diligence.’ ”

216 Ala. at 229, 113 So. at 31.

We hold that the trial judge did not err in granting summary judgment.

AFFIRMED.

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


text:
    Charlie EVANS v. Catherine GREEN and Ruthie Mae Green Williams.
    81-4.
    Supreme Court of Alabama.
    March 19, 1982.
    C. Kerry Curtis of Curtis & Curtis, Phe-nix City, for appellant.
    Roy L. Smith, Sr. of Smith, Smith & Collins, Phenix City, for appellees.
   MADDOX, Justice.

This is an appeal from a judgment entered in a suit wherein the trial court established a boundary line between the lands of coterminous landowners. We affirm.

Plaintiffs, Catherine Green and Ruthie Mae Green Williams, claimed title through two deeds and actual possession. Charlie Evans answered the complaint. He claimed title by virtue of a deed. He also claimed he acquired title by adverse possession.

The case was heard by Judge Wayne T. Johnson. He examined 37 exhibits, surveys and documents, and heard the testimony of 11 witnesses. He established the boundary line in dispute and taxed one-half of the costs to the plaintiffs and one-half to the defendant. Defendant’s motion for a new trial was denied. The defendant filed notice of appeal.

It is well settled that “[o]n appeal from a decree of the equity court establishing a boundary line between coterminous lands on evidence submitted ore tenus in open court, the decree of the lower court is presumed to be correct and in such case, the trial court’s conclusions of fact will not be disturbed unless palpably erroneous or manifestly unjust.” Jones v. Wise, 282 Ala. 707, 213 So.2d 914 (1968). The facts presented in the lower court are conflicting and contradictory. The trial judge had the opportunity to resolve the conflicting evidence by observing the demeanor of the witnesses as they gave their testimony and by examining the exhibits as they were presented.

The findings of fact made by the trial judge are not clearly and palpably wrong. His conclusions of law, based on his findings of fact, are due to be affirmed.

AFFIRMED.

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


author: WRIGHT, Presiding Judge.

text:
    PIGGLY WIGGLY, INC. v. Robert McCORMICK.
    Civ. 2827.
    Court of Civil Appeals of Alabama.
    Nov. 4, 1981.
    Rehearing Denied Dec. 9, 1981.
    Certiorari Denied, April 2, 1982 Alabama Supreme Court 81-276.
    Arthur F. Fite, III of Merrill, Porch, Doster & Dillon, Anniston, for appellant.
    Harold G. Quattlebaum, Anniston and David R. Donaldson, Birmingham, for ap-pellee.
   WRIGHT, Presiding Judge.

This is an appeal from a denial of a Rule 60(b), A.R.C.P. motion to vacate a default judgment. The motion alleged 60(b)(1) grounds — mistake, inadvertence, surprise or excusable neglect — as well as 60(b)(6) grounds — that to allow the judgment to stand would be unjust.

Appellant purchased refrigeration equipment from Roy Rutledge, a non-appealing co-defendant, for use in its Jacksonville, Alabama, grocery. Rutledge bought the equipment from Robert McCormick specifically for resale and directed McCormick to deliver the items to the Piggly Wiggly store. Rutledge paid McCormick with a check that the bank returned marked insufficient funds. At the time of the taking of his deposition in connection with the 60(b) motion, Rutledge admitted that he owes McCormick for the equipment.

Rutledge and Piggly Wiggly are not agreed as to whether Piggly Wiggly has fully paid for the equipment and its installation. Rutledge received two of three checks written to him for payment. Apparently the third check was credited against a debt owed by Rutledge to Ms. Mary Hardin, president of Piggly Wiggly. Rutledge said that he never saw that check.

McCormick filed an action in detinue for possession of the equipment against Rutledge and Piggly Wiggly. Both were served a summons and complaint — Rutledge through an agent and Piggly Wiggly through the manager of the Jacksonville store. Neither defendant filed an answer. Approximately two and a half months after service, McCormick’s attorney called the store to inquire why an answer had not been filed. A visiting supervisor told the attorney that the papers had been sent to the Piggly Wiggly attorney in Gadsden. Despite this communication, no answer was filed. About two weeks after the call, a default was taken and execution filed against the property.

More than two months after entry of default, Piggly Wiggly filed a 60(b) motion to set it aside. Appellant failed to utilize Rule 55(c), A.R.C.P. which allows the trial court in its discretion to set aside a default within thirty days after its entry even though such action might not be justified on 60(b) grounds. The trial court denied the 60(b) motion finding that there was no excusable neglect on the part of appellant. From that order, Piggly Wiggly appeals.

Our standard of review of the grant or denial of a 60(b) motion is abuse of discretion. Modernage Homes v. Wooldridge, 55 Ala.App. 68, 813 So.2d 190 (1975). The trial court must balance the desire to remedy injustice against the need for finality of judgments. Tichansky v. Tichansky, 54 Ala.App. 209, 307 So.2d 20 (1974), cert. denied, 293 Ala. 775, 307 So.2d 24 (1975). See Pitts v. Henley, 384 So.2d 1105 (Ala.Civ.App.1980). Despite our unfavorable view toward default judgments, we find no abuse of discretion in the trial court.

Appellant contends that if 60(b)(1) grounds were not found by the trial court, the motion should have been granted on 60(b)(6). Rule 60(b)(6) is an extreme remedy used only under exceptional circumstances. Tichansky, supra. The scope of review for 60(b)(6) is also abuse of discretion. Townsend Ford, Inc. v. Edwards, 374 So.2d 900 (Ala.Civ.App.1979). In that case, this court held:

Under these facts, for this court to find that as a matter of law the trial court was required to set aside the judgment would be tantamount to holding that all judgments by default must be set aside when the defendant simply does not defend within the time prescribed by law. This we are not prepared to do. 374 So.2d at 902.

In the instant case, Piggly Wiggly was duly served. When no answer was forthcoming, the appellee’s attorney communicated with a supervisor as to why no answer had been filed. At least two weeks passed after that call before a default was entered. Even after default, Piggly Wiggly waited more than two months to file its 60(b) motion. The trial court considered the evidence on the motion and denied Pig-gly Wiggly relief. We find no abuse of that court’s sound discretion, and therefore affirm.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


author: BRADLEY, Judge.

text:
    The SUN PAPERS, INC. v. Frances Elizabeth JERRELL and Meghan Adele Jerrell.
    Civ. 2639.
    Court of Civil Appeals of Alabama.
    Nov. 12, 1981.
    Rehearing Denied Dec. 23, 1981.
    Certiorari Denied, April 2, 1982 Alabama Supreme Court 81-305.

      William C. Wood of Norman, Fitzpatrick & Wood, Birmingham, for appellant.
    Bruce M. Green'of Mitchell, Green & Pino, Calera, and Joseph P. Givhan, Jr., Mobile, for appellee.
   BRADLEY, Judge.

This is a workmen’s compensation case.

The Shelby County Circuit Court entered a judgment in favor of the widow and posthumous child of the deceased employee, entitling them to compensation under the Alabama Workmen’s Compensation laws. The employer appeals from that judgment.

The evidence shows that on September 9, 1978 Stephen Thomas Jerrell, an employee of Sun Papers, Inc. (“Sun”), was killed in a motor vehicle collision when he made a left turn into the path of an oncoming automobile. Testimony indicates that Jerrell’s vision was impaired in that he could only see light and dark shapes with one eye, and that Jerrell had prior knowledge of this physical condition. The collision occurred at an intersection approximately one mile from Sun’s offices, along a route commonly used by Sun’s employees in coming to work.

At the time of his death Jerrell was employed by Sun as manager of the publications department. The job involved a good deal of travel, mostly in the local area. Jerrell used his own personal automobile for this travel; Sun did not provide him with a car, although it guaranteed his car note. Sun did, however, reimburse Jerrell and its other employees for expenses incurred in such travel. Under one plan Sun paid its employees fifteen cents per mile for the use of their automobiles on company business. Jerrell had at one time been reimbursed for his travel expenses under this plan, but at the time of his death he had opted for reimbursement under an alternative, simplified plan. Under the alternative plan Sun paid Jerrell a sum of $29.81 each week for travel expenses, and provided gasoline for him to use for the business travel.

Jerrell had no set working hours. He was free to set his own hours, and he frequently went in to the office on weekends. On those days when he was required to travel, he usually came in to the office to set up his schedule for the day.

On the day before his death, Jerrell made a stop at a local high school to work with students on the production of a school publication and to pick up some copy material to be processed by Sun at some time during the next week. He apparently took the copy home with him that evening. The next morning Jerrell left for work in his car and was killed in an automobile collision. The evidence is in dispute as to the deadline for the copy to be turned in to Sun.

This action was filed on March 12, 1979 by Jerrell’s widow. On August 27, 1980 an amended complaint was filed, seeking to add as a plaintiff the posthumous child of the deceased, who was born on March 24, 1979.

In November 1980 the trial court entered a judgment in favor of both the widow and the child, finding that Jerrell’s death occurred as a result of an accident “which arose out of and in the course of his employment by the defendant,” and that Jer-rell was not guilty of any act which would bar recovery under the workmen’s compensation laws. The court further ruled that the addition of the posthumous child in the complaint was “an additional claim [by the widow] in a different capacity,” and as such the addition was timely. The court awarded the widow and child $113.33 per week, an amount equal to sixty-six and two-thirds percent of Jerrell’s weekly salary just prior to his death.

Sun appeals from the judgment, alleging that (1) the accident which caused Jerrell’s death did not arise out of and was not in the course of his employment; (2) the addition of the posthumous child in the complaint was not timely filed; and (3) Jerrell’s misconduct and breach of his statutory duties bar any recovery of benefits by ap-pellees under the Alabama Workmen’s Compensation laws.

It is well settled that the standard of review in workmen’s compensation cases is limited to a determination of whether there is any legal evidence or reasonable inferences therefrom to support the findings of fact of the trial court. Orkin Exterminating Co. v. Williams, 389 So.2d 935 (Ala.Civ.App.1980). Where the findings of fact by the trial court are meager or omis-sive, this court will look to the evidence to see if, on any reasonable view of the evidence, the judgment of the court can be sustained. Defense Ordinance Corp. v. England, 52 Ala.App. 565, 295 So.2d 419 (1974). On appeal, however, this court will not weigh the evidence to determine if it reasonably satisfies the issue in question; that is for the trial court. United States v. Bear Brothers, Inc., 355 So.2d 1133 (Ala.Civ.App.1978).

In order for the claimant’s injuries to be compensable under the Alabama Workmen’s Compensation laws, the accident must arise out of and occur in the course of his employment. § 25-5-51, Code 1975. As a general rule, accidents which occur while the employee is travelling to and from work are not considered “arising out of and in the course of” his employment. Barnett v. Britling Cafeteria Co., 225 Ala. 462, 143 So. 813 (1932). There are, however, several well-recognized exceptions to the general rule, among which is the following: “where the employee is engaged in some duty to his employer in connection with his employment ... or en route.” Union Camp Corp. v. Blackmon, 289 Ala. 635, 270 So.2d 108 (1972) (emphasis supplied).

We find that there was sufficient evidence before the trial court to support a finding that the accident which caused Jer-rell’s death arose out of and in the course of his employment. The wife testified that just before her husband left the house on Saturday morning, he said that he was going to the office to deliver some material he had picked up at a high school the day before. Although this testimony by the wife amounts to hearsay, it is, nevertheless, admissible evidence and was properly considered by the trial court. A statement made by a person in preparing to go to a particular place, explanatory of his purpose in making the journey, is res gestae evidence and may be proven. Cook v. Latimer, 279 Ala. 294, 184 So.2d 807 (1966); C. Gamble, McElroy’s Alabama Evidence § 262.01(1) (3d ed. 1977).

The evidence further shows that Jerrell’s immediate supervisor went to the scene of the accident shortly after noon and examined the wrecked vehicle to retrieve any personal or business effects or property. He was not asked if he found anything. He then stated that he saw the material in question when Jerrell’s father-in-law brought it to the appellant’s office on the Wednesday following the accident on Saturday. It could be reasonably inferred from this testimony and from the widow’s testimony that the supervisor did not find the material in question in the wrecked vehicle because it had been removed from the wrecked vehicle prior to the time Jerrell’s immediate supervisor reached the accident scene. We therefore conclude that the evidence supports the finding that Jerrell’s death arose out of and in the course of his employment.

Appellant next asserts that appellees’ right to recovery is barred by Jerrell’s “wilful” misconduct in causing the accident. Section 25-5-51, Code 1975, provides that:

[N]o compensation shall be allowed for an injury or death caused by the wilful misconduct of the employee ... or due to the wilful refusal or wilful neglect of the employee or servant to perform a statutory duty or due to any other wilful violation of the law by the employee.

Appellant contends that Jerrell’s failure to observe the oncoming traffic at the intersection in question, and his failure to yield the right-of-way in making a left turn, constituted a “wilful” violation of a statutory duty under the provisions of § 25-5-51. These contentions are without merit.

“Wilful” misconduct, as used in § 25-5-51, “ ‘includes all conscious or intentional violations of definite law or definitely prescribed rules of conduct, as to which obedience is not discretionary, as contradis-tinguished from inadvertent, unconscious, or involuntary violations thereof.’ ” Sloss-Sheffield Steel & Iron Co. v. Nations, 236 Ala. 571, 183 So. 871 (1938), citing Ex parte Woodward Iron Co., 212 Ala. 220, 102 So. 103 (1924). We fail to see how Jerrell’s inadvertence in turning in front of an oncoming car can be a “wilful” violation of a statutory duty as contemplated by § 25-5-51. Testimony suggested that Jerrell’s view of the oncoming traffic might have been obstructed by the sunlight. Failure to observe traffic and to yield the right-of-way under such circumstances does not, without more, establish wilful misconduct within the meaning of § 25-5-51. See Hommel v. Jackson-Atlantic, Inc., 438 F.2d 307 (5th Cir. 1971). Nor do we think that Jerrell’s impaired vision, and his knowledge thereof, render his actions “wilful” under the statute.

Appellant’s last contention is that appel-lees’ amendment to the complaint adding Jerrell’s posthumous child as a plaintiff was barred by the one year statute of limitations as provided by § 25-5-80, Code 1975.

It is settled law that the Alabama Workmen’s Compensation laws should be liberally construed in order to effectuate the purpose behind the act and to eliminate procedural technicalities. Defense Ordinance Corp. v. England, supra. This liberal construction is in line with the intent of our procedural rules relating to amendments under Rule 15, A.R.C.P. National Distillers & Chemical Corp. v. American Laubscher Corp., 338 So.2d 1269 (Ala.1976). The policy regarding amendments concentrates on the factors of notice to the defendant and identity of interest among the parties sought to be added.

As long as defendant is fully apprised of a claim arising from specified conduct and has prepared to defend the action against him, his ability to protect, himself will not be prejudicially affected if a new plaintiff is added, and he should not be permitted to invoke a limitations defense.

6 Wright & Miller, Federal Practice and Procedure, § 1501 (1971). An amendment which seeks to add a plaintiff with an entirely different claim will not relate back to the time of the original complaint, although the addition of a claim by the plaintiff in another capacity may be held to relate back. Id.

We find that, under the circumstances of the present case, the amendment adding the child as another party to the complaint was properly allowed by the trial court. The record before us indicates that the employer paid medical insurance for both the widow and the child until the child was three months old. It is clear that the employer had notice of the existence of the child as an additional dependent of its employee Jerrell from shortly after its birth. Further, there was sufficient identity of interest between the widow and child to allow a proper amendment to the complaint. It is undisputed that the petition on behalf of Jerrell’s widow was timely filed. Although the child was not included as a party plaintiff in the complaint itself, both the widow and the child were in essence before the court as dependents seeking compensation under the workmen’s compensation law [see Texas Employers’ Insurance Association v. Shea, 410 F.2d 56 (5th Cir. 1969)]; the filing of the petition in the name of the widow only does not preclude a subsequent amendment to include the child’s name on the face of the complaint. See Braswell v. Brooks, 266 Ala. 141, 94 So.2d 879 (1957).

We therefore affirm the judgment of the trial court.

AFFIRMED.

WRIGHT, P. J., and HOLMES, J., concur.