author: ROY NOBLE LEE, Justice, WALKER, Presiding Justice,

text:
    Annette LUCAS, et al. v. MISS. HOUSING AUTHORITY # 8.
    No. 53752.
    Supreme Court of Mississippi.
    July 27, 1983.
    Rehearing Denied Dec. 14, 1983.

      Richard W. Hamilton, Rex Gordon, Sr., Gordon, Myers & Gordon, Pascagoula, for appellant.
    Roger T. Clark, Gulfport, Joe R. Colingo, Pascagoula, Grier J. Gregory, Gulfport, Bryant & Stennis, Pascagoula and Gulfport, for appellee.
    Before PATTERSON, C.J., and ROY NOBLE LEE and ROBERTSON, JJ.
   ROY NOBLE LEE, Justice,

for the Court:

■.•-The family of Demond Tubbs (Lucas) filed suit in the Circuit Court of Jackson County, Honorable Clinton E. Lockard, presiding, against Mississippi Regional Housing Authority # 8 (Housing Authority), seeking damages resulting from the death of Demond Tubbs, who drowned in the Housing Authority swimming pool on June 21, 1980. The jury returned a verdict in favor of the Housing Authority, and Lucas has appealed here, assigning two errors in the trial below.

I.

Did the lower court err in failing to grant a peremptory instruction or a judgment notwithstanding the verdict for appellants?

The facts of the case are largely uncon-tradicted. The appellee owned and operated an apartment complex in Gautier, Mississippi, known as Belle Ville Apartments, which consisted of 144 units. In the complex there was a swimming pool, approximately twenty-four feet wide by fifty feet long, three feet deep at the shallow end and eight feet deep at the deepest end.

On June 21, 1980, Annette Lucas went to the apartment complex, accompanied by her six-year-old son, Demond Tubbs, and two other children, for the purpose of visiting her friends, Marie and Vaughn Ferrill, who resided in one of the apartments. When she arrived, she found a note on the door of the Ferrills’ apartment that they were at the swimming pool. Mrs. Lucas went to the pool, the Lucas children wanted to go swimming, and, with the permission of the Ferrills, the Lucas children got into the pool. One of the children did not have proper swimming attire, and Mrs. Paulette Nelson, another tenant, offered him some extra swim trunks in her apartment. Lucas left the pool for that purpose, and Marie Ferrill was supposed to look after the children.

When the child’s mother returned to the pool, she was unable to find Demond and a search began for him. Finally, one Walter Ray Henderson discovered the child’s body in the deep end of the pool near the drain. The child’s hands and feet were wrinkled and his tongue was a pale white color. Mrs. Lucas began massaging him and he was administered mouth-to-mouth resuscitation. The ambulance arrived, the child was taken to the hospital, but was pronounced dead from drowning approximately fifteen minutes after his arrival there.

Mike Giles, an Assistant Professor and Director of Aquatics at the University of Southern Mississippi, who had a Master’s Degree in Physical Education and was a qualified Red Cross lifesaving instructor, testified for the appellants. He had been teaching swimming and had managed pools for approximately twenty years and had written articles on water safety. Giles testified that, based on the uncontradicted evidence as to the condition of the pool, it was his opinion that an unreasonably dangerous condition existed in the pool.

The first question to be resolved is the status of the deceased child at the time he used the swimming pool, viz, whether he was an invitee or a licensee. If the deceased was an invitee, the appellee owed him the duty to use reasonable care to prevent his injury or death, but, if he was a licensee, the only duty owing from appellee was not to willfully or wantonly injure him. An invitee is a person who goes upon the premises of another in answer to the express or implied invitation of the owner or occupant for their mutual advantage. A licensee is one who enters upon the property of another for his own convenience, pleasure or benefit, pursuant to the license or implied permission of the owner. Hoffman v. Planters Gin Co., Inc., 358 So.2d 1008 (Miss.1978).

The swimming pool at the apartment complex had been constructed and was maintained for the benefit of the tenants in the complex, and it reasonably follows that the pool was for the mutual benefit of the appellee and its tenants, and that a part of the rental or consideration for occupying the apartments was the inducement, pleasure and benefit of the swimming pool to the tenants. Appellee permitted the tenants to invite guests to the complex for the purpose of swimming in the pool. The swimming pool, therefore, was a common area of the complex used by the tenant families and their invited guests. It would be unconscionable to establish a principle of law that appellee owed to the six-year-old child of a tenant the duty to use reasonable care not to injure him and, yet, owed to his six-year-old invited guest, swimming in the same pool, only the duty not to willfully or wantonly injure him.

In Turnipseed v. McGee, 236 Miss. 159, 109 So.2d 551 (1959), the Court touched upon the principle involved here and said:

The second, alternative theory of liability upon which plaintiff must rely pertains to a multi-unit apartment building, where the owner leases parts to different tenants, and expressly or impliedly reserves other parts, such as entrances, halls, stairways, porches and walks, for the common use of different tenants. It is the landlord’s duty to exercise reasonable care to keep safe such parts over which he reserves control, and, if he is negligent in this respect, and personal injury results to a tenant or to a person there in the right of the tenant, he is liable in tort. 32 AmJur., Landlord and Tenant, Section 688. [236 Miss, at 167, 109 So.2d at 544], (Emphasis added)

The lower court submitted the issues to the jury on the standard that Demond Tubbs was an invitee and we hold that he correctly applied the standard of care required of the appellee for the protection and safety of the child.

However, on this assignment of error it is for the jury to determine whether or not negligence of the appellee proximately caused, or contributed to, the child’s death. We think the rule as stated in Georgia-Pacific v. Blakeney, 353 So.2d 769 (Miss.1978), quoting previous decisions, applies to appellant’s request for a peremptory instruction:

The rule, in determining whether a motion for directed verdict should be granted, requires the trial judge to consider the evidence on behalf of the party against whom a directed verdict is requested, along with all reasonable inferences, in the light most favorable to said party, disregard any evidence of the other party in conflict therewith, and, if the evidence and reasonable inferences to be drawn therefrom would support a verdict for such party, the motion for directed verdict should be denied. (Here the motion for directed verdict actually was a request for peremptory instruction). Paymaster Oil Mill Co. v. Mitchell, 319 So.2d 652 (Miss.1975); White v. Thomason, 310 So.2d 914 (Miss.1975); Williams v. Weeks, 268 So.2d 340 (Miss.1972); Clark v. Luther McGill, Inc., 240 Miss. 509, 127 So.2d 858 (1961); Sumrall Motor Co. v. Creel, 158 Miss. 262, 130 So. 151 (1930). [353 So.2d at 772],

While the evidence here is mostly undisputed, the issue of causation is still a question for the jury.

We are of the opinion that the lower court correctly overruled appellant’s request for a peremptory instruction on the issue of liability.

II.

Did the lower court err in granting Jury Instruction D-15 and D-16 at the request of appellee?

Instruction D-15 stated that, if the jury found from the evidence Annette Lucas, the mother of Demond Tubbs, or the person to whom Annette Lucas entrusted the duty to look after and care for the safety of De-mond Tubbs, failed to use ordinary and reasonable care in looking after the safety and well-being of Demond Tubbs while in and about the swimming pool, then Annette Lucas was negligent and, if the jury found that such negligence was the sole proximate cause of the death of Demond Tubbs, then the verdict should be for the defendant. Instruction D-16 was in similar language, and told the jury that, if it believed Annette Lucas left Demond Tubbs in the care of Marie Ferrill, and that Marie Ferrill did not exercise reasonable and ordinary care, then the verdict should be for the defendant. [See Appendices I and II].

Bunch v. Shaw, 355 So.2d 1383 (Miss.1978), was a suit for injuries sustained by a six-year-old child when lockers in a bowling alley fell on her. The same instruction was given for the defendant in that case. In holding the instruction constituted error and in reversing the judgment of the lower court, this Court said:

We think that this instruction would tend to confuse and mislead the jury, and for that reason alone would be reversible error.
The granting of this instruction constitutes fatal error for another reason. It allows the jury to impute the parents’ negligence to a six-year-old child. In Westbrook v. Mobile and Ohio R.R. Co., 66 Miss. 560, 6 So. 321 (1889), this Court said:
“But when the action is brought, as in the case at bar, by the infant, or for his benefit, the better rule is that the negligence or misconduct of the parent or custodian of the child shall not be imputed to the child. Beach on Con. Neg., § 43, and authorities there cited. To charge the child with the negligence of the parent or custodian, in such case, would be, as said by the supreme court of New York, in Lannen v. Albany Gas-Light Co., 46 Barb. 264, to visit ‘the sins of the fathers upon the children, to an extent not contemplated by the Decalogue, or in the more imperfect digests of human law.’ ” 66 Miss, at 568-69, 6 So. at 322.
The same conclusion was reached in the later case of Louisville, N.O. and T. Ry. Co. v. Hirsch, 69 Miss. 126, 13 So. 244 (1891). [355 So.2d at 1885],

We do not think the fact that De-mond Tubbs lost his life and the six-year-old child in Bunch only was injured distinguishes the cases, and we hold that the principle applies in the present case. In our opinion, it was error to grant Instruction D-15. Also, Instruction D-16 should not have been given because (1) the fact that Annette Lucas, Demond Tubbs’ mother, left the child in the care of Marie Ferrill probably presented to the jury the question of whether or not Annette Lucas was negligent in so doing, and (2) the evidence does not show to what extent Marie Ferrill acted as custodian of the child and what her responsibility involved.

The appellant argues that appellee did not properly preserve the point on appeal, and that Jury Instruction P-10, granted at the request of appellant, told the jury that, negligence, if any, of Annette Lucas or Mrs. Ferrill is not a bar to recovery by the plaintiffs, but that, if the defendant was guilty of negligence, which proximately caused or contributed to the drowning and death of Demond Tubbs, the plaintiffs were entitled to recover [See Appendix III], In our opinion, the objections to D-15 and D-16 were specific and properly preserved the error for appeal here. Also, those instructions were granted over the strenuous objection of the appellant, who was placed in the position of being forced to request the Instruction P-10 in order to mitigate the harm resulting from those instructions. We are of the opinion that granting Instruction P-10 did not cure the errors and harm flowing from D-15 and D-16, and that the judgment of the lower court must be reversed and the case remanded for a new trial.

REVERSED AND REMANDED.

PATTERSON, C.J., BROOM, P.J., and BOWLING, HAWKINS, PRATHER and ROBERTSON, JJ., concur.

WALKER, P.J., and DAN M. LEE, J., specially concur.

APPENDIX I

JURY INSTRUCTION NO. D-15

The Court instructs the jury that the law casts upon the parent of a minor child the duty to exercise ordinary or reasonable care to look after the safety and well being of a minor child and the Court further instructs you that if you find from the evidence in this case, if any, that Annette Lucas, the mother of Demond Tubbs, or the person to whom Annette Lucas entrusted the duty to look after and care for the safety of De-mond Tubbs, failed to use ordinary or reasonable care in looking after the safety and well being of Demond Tubbs while in and about the swimming pool belonging to the Defendant in this case, then and in that event, Annette Lucas was negligent, and if you further find that the negligence of Annette Lucas, if any, was the sole proximate cause of the death of Demond Tubbs then, and in that event, it will be your sworn duty to find for the Defendant.

APPENDIX II

JURY INSTRUCTION NO. D-16

The Court instructs the jury that if you believe from the evidence in this case, if any, that Annette Lucas left Demond Tubbs in the care of Marie Ferrell and that Marie Ferrell did not exercise reasonable or ordinary care in observing or looking after the child then Marie Ferrell was negligent. The Court further instructs you that if you find Marie Ferrell was negligent as above set out and that such negligence, if any, was the sole proximate cause of the death of Demond Tubbs then, and in that event, it shall be your sworn duty to return a verdict for the Defendant.

APPENDIX III

JURY INSTRUCTION NO. P-10

You are instructed that even though you may believe from the evidence that the mother, Annette Lucas, may have been guilty of inattendance in supervising her child, or that Mrs. Ferrell was likewise negligent in failing to supervise the deceased child, that, nevertheless, such negligence, if any, is not a bar to recovery in favor of the Plaintiffs if you believe from a preponderance of the evidence that there was negligence of the Defendant that proximately caused or contributed to the drowning and death of Demond A. Tubbs.

WALKER, Presiding Justice,

specially concurring:

I concur with the result reached by the majority because, in my opinion, there was no negligence proved that Annette Lucas, the mother of the deceased child, was negligent in leaving the child with her friend, Marie Ferrill. Put another way, there was no proof that Marie Ferrill was not competent to look after the child.

If this had been a case where Annette Lucas had negligently supervised her child at the swimming pool, then I would have a different view. To me, it would be grossly inequitable to permit a negligent parent to fully recover for the death of her child from a third party whose negligence was only a minor contributing factor to the child’s death. Under such circumstance, I would apply our comparative negligence rule.

Research reveals the divisions of authority on this question as follows:

Twenty-six states hold that the negligence of the sole beneficiary is a complete bar to recovery:

Alabama: Peoples v. Seamon, 249 Ala. 284, 31 So.2d 88 (1947).
Arizona: Womack v. Preach, 64 Ariz. 61, 165 P.2d 657 (1946).
California: Kasunich v. Kraft, 201 Cal.App.2d 177, 19 Cal.Rptr. 872 (1962).
Colorado: Willy v. Atchison, T & S.F.R. Co., 115 Colo. 306, 172 P.2d 958 (1946).
Delaware: Jones v. Pennsylvania R. Co., 123 A.2d 111 (Del.1956).
Georgia: Walden v. Coleman, 217 Ga. 599, 124 S.E.2d 265 (1962).
Kansas: Schmidt v. Martin, 212 Kan. 373, 510 P.2d 1244 (1973).
Kentucky: Barton v. Spurlock, 294 Ky. 336, 171 S.W.2d 1012 (1943).
Massachusetts: Lenihan v. Boston & M.R. Co., 260 Mass. 28, 156 N.E. 857 (1943).
Minnesota: Hondl v. Chicago Great Western R. Co., 249 Minn. 306, 82 N.W.2d 245 (1957).
Missouri: Dye v. Geir, 345 S.W.2d 83 (Mo.1961).
Nebraska: Wieck v. Blessin, 165 Neb. 282, 85 N.W.2d 628 (1957).
New Hampshire: Pike v. Adams, 99 N.H. 221, 108 A.2d 55 (1954).
New Mexico: Baca v. Baca, 71 N.M. 468, 379 P.2d 765 (1963).
North Carolina: Harton v. Forest City Teleph. Co., 141 N.C. 455, 54 S.E. 299 (1906).
North Dakota: Burkstrand v. Rasmussen, 77 N.D. 716, 45 N.W.2d 485 (1950).
Ohio: Wolf v. Lake Erie & W.R. Co., 55 Ohio St. 517, 45 N.E. 708 (1896).
Oregon: Ditty v. Farley, 219 Or. 208, 347 P.2d 47 (1959).
South Carolina: Cirosky v. Smathers, 128 S.C. 358, 122 S.E. 864 (1924).
Tennessee: Smith v. Henson, 214 Tenn.541, 381 S.W.2d 892 (1964).
Utah: Sjoberg v. White, 119 Utah 562, 230 P.2d 331 (1951).
Vermont: Butterfield v. Community Light & P. Co., 115 Vt. 23, 49 A.2d 415 (1946).
Virginia: Ratcliffe v. McDonald, 123 Va. 781, 97 S.E. 307 (1918).
Washington: Vinnette v. Northern P.R. Co., 47 Wash. 320, 91 P. 975 (1907).
West Virginia: Hendricks v. Monongahela West Penn Pub. Serv. Co., 111 W.Va. 576, 163 S.E. 411 (1932).
Wisconsin: Nichols v. U.S. Fidelity & Guaranty Co., 13 Wis.2d 491, 109 N.W.2d 131 (1961).

Twenty-one states hold that full recovery is not allowed where one or more of several beneficiaries are negligent. However, partial recovery is allowed. Those states are:

California: Bowler v. Roos, 213 Cal. 484, 2 P.2d 817 (1931).
Colorado: Phillips v. Denver City Tramway Co., 53 Colo. 458, 128 P. 460 (1912).
Georgia: Walden v. Coleman, 217 Ga.599, 124 S.E.2d 265 (1962).
Illinois: Nudd v. Matsoukas, 7 Ill.2d 608, 131 N.E.2d 525 (1956).
Indiana: Lindley v. Sink, 218 Ind. 1, 30 N.E.2d 456 (1940).
Kansas: Cruse v. Dole, 155 Kan. 292, 124 P.2d 470 (1942).
Kentucky: Lucas E. Moore Stave Co. v. Overbee, 262 S.W.2d 828 (Ky.1953).
Michigan: MacDonald v. Quimby, 350 Mich. 21, 85 N.W.2d 157 (1957).
Minnesota: Hondl v. Great Western R. Co., 249 Minn. 306, 82 N.W.2d 245 (Minn.1957).
New Hampshire: Humphreys v. Ash, 90 N.H. 223, 6 A.2d 436 (1939).
New Mexico: Baca v. Baca, 71 N.M. 468, 379 P.2d 765 (1963).
North Carolina: Pearson v. National Manufacture & Stores Corp., 219 N.C. 717, 14 S.E.2d 811 (1941).
North Dakota: Bartholomay v. St. Thomas Lumber Co., 148 N.W.2d 278 (N.D.1966).
Ohio: Cleveland, C.C. & St. L.R. Co. v. Grambo, 103 Ohio St. 471, 134 N.E. 648 (1921).
Oregon: MacDonald v. O’Reilly, 45 Or. 589, 78 P. 753 (1904). (Conflicting Cases, see below).
South Carolina: Nettles v. Southern R. Co., 211 S.C. 187, 44 S.E.2d 321 (1947).
South Dakota: Tufty v. Sioux Transit Co., 70 S.D. 352, 17 N.W.2d 700 (1945).
Tennessee: Anderson v. Memphis Street R. Co., 143 Tenn. 216, 227 S.W. 39 (1920).
Texas: Schwing v. Bluebonnet Express, Inc., 489 S.W.2d 279 (Tex.1973).
Virginia: Danville v. Howard, 156 Va. 32, 157 S.E. 733 (1931).
West Virginia: Stogdon v. Charleston Transit Co., 127 W.Va. 286, 32 S.E.2d 276 (1944).

The following five states permit recovery where the sole beneficiary’s negligence has contributed to the decedent’s death:

Arkansas: Miles v. St. Louis, I.M. & S.R. Co., 90 Ark. 485, 119 S.W. 837 (1909).
Illinois: McClure v. Suter, 63 Ill.App.3d 378, 20 Ill.Dec. 308, 379 N.E.2d 1376 (1978).
Iowa: Wymore v. Mahaska County, 78 Iowa 396, 43 N.W. 264 (1889).
New Jersey: Cloyes v. Township of Delaware, 41 N.J.Super. 27, 124 A.2d 37 (1956).
New York: McMahon v. New York, 33 N.Y. 642 (1865).

Eleven states hold that recovery in full is allowed when one of several beneficiaries is negligent:

Alabama: Birmingham v. Crane, 175 Ala. 90, 56 So. 723 (1911).
Arkansas: Miles v. St. Louis, I.M. & S.R. Co., 90 Ark. 485, 119 S.W. 837 (1909).
Connecticut: Wilmot v. McPadden, 78 Conn. 276, 61 A. 1069 (1905).
Iowa: Kuehn v. Jenkins, 251 Iowa 718, 100 N.W.2d 610 (1960).
Maine: Danforth v. Emmons, 124 Me. 156, 126 A. 821 (1924).
Massachusetts: O’Connor v. Benson Coal Co., 301 Mass. 145, 16 N.E.2d 636 (1938).
Mississippi: Hines v. McCullers, 121 Miss. 666, 83 So. 734 (1920).
Louisiana: Lewis v. Till, 395 So.2d 737 (La.1981).
Missouri: Herrell v. St. Louis-San Francisco R. Co., 324 Mo. 38, 23 S.W.2d 102 (1929).
New York: McMahon v. New York, 33 N.Y. 642 (1865).
Oregon: Gigoux v. Yamhill County, 73 Or. 212, 144 P. 437 (1914).

DAN M. LEE, J., joins this specially concurring opinion.


source: Caselaw Access Project

license: Public Domain

text:
    Eugie Larry (Ross) PALMER v. Vincie F. ROSS and the Heirs at Law of Sidney Allen Ross, Deceased.
    No. 54560.
    Supreme Court of Mississippi.
    Oct. 12, 1983.
    Rehearing Denied Dec. 14, 1983.
    Douglas M. Magee, Mendenhall, for appellant.
    Anselm J. McLaurin, McLaurin & McLau-rin, Brandon, for appellees.
   Appeal from Chancery Court, Simpson County; J.W. Walker, Chancellor.

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

REVERSED AND REMANDED.

PATTERSON, C.J., BROOM, P.J., and ROY NOBLE LEE, DAN M. LEE and PRATHER, JJ., concur.

BOWLING, J., not participating.


author: PRATHER, Justice,

text:
    In the Interest of K.A.R., a Minor.
    No. 53935.
    Supreme Court of Mississippi.
    Nov. 2, 1983.
    Rehearing Denied Dec. 14, 1983.
    Harry L. Kelley, Jackson, for appellant.
    Joe B. Moss, Bill Allain, Atty. Gen. by Anita Mathews Stamps, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before BROOM, P.J., and DAN M. LEE and PRATHER, JJ.
   PRATHER, Justice,

for the Court:

K.A.R., a married minor, was arrested at her home in Raymond, Second Judicial District, Hinds County, Mississippi and charged with possession of marijuana and hashish. A youth court hearing was held in the First Judicial District of Hinds County at which time K.A.R. was determined to be a delinquent under the Youth Court Act, section 43-21-101 et seq., of the Mississippi Code Annotated (1972), and committed in the custody of the Department of Youth Services for placement at Columbia Training School. She takes this appeal and assigns as error that:

(1) The youth court had no jurisdiction over a married minor under the age of eighteen years;

(2) The youth court sitting in the First Judicial District of Hinds County had improper venue since the alleged offense occurred in and the minor resided in the Second Judicial District of Hinds County; and

(3) The finding that K.A.R. was delinquent was against the overwhelming weight of the evidence.

We agree that the finding of delinquency was against the overwhelming weight of the evidence; therefore, we reverse the finding and discharge the minor. We do, however, feel the need to address the other two assignments of error as well.

I.

K.A.R. is a sixteen year old female married to D.R., both of whom at the time of this incident, lived in a trailer at Raymond, Mississippi. A third person by the name of Oddie Hughes also resided at the trailer.

On March 14,1982, police officers entered the trailer with a search warrant. At the time of the search K.A.R., D.R., Oddie Hughes, D.R.’s two sisters and his brother-in-law were present. The brother-in-law and two sisters arrived at the trailer about an hour before the police arrived. Oddie Hughes had been there for about five minutes.

The hashish was found in a P.C.Y. pipe located under the trailer. The marijuana was found on the floor in the living room area of the trailer. There was no testimony at the hearing that K.A.R. was in actual possession of either substance. K.A.R. claimed that the marijuana belonged to Od-die Hughes and that he had brought it to the trailer moments before the police arrived. She knew nothing about the hashish. K.A.R. stated that Hughes often brought marijuana to the trailer and that her husband sometimes kept marijuana around the trailer. She stated that when the police arrived at the trailer, Hughes knocked the marijuana off of a table and on to the floor.

II.

The first question for this Court to decide is whether the youth court has jurisdiction over married minors under the age of eighteen years. We hold that it does.

A “child” under Mississippi’s Youth Court Act is defined as “a person who has not reached his eighteenth birthday.” Further, it says that, “a child who has not reached his eighteenth birthday and is on active duty for a branch of the armed services is not considered a ‘child’ or ‘youth’ for the purposes of this chapter.” Mississippi Code Annotated § 43-21-105(d) (1972).

The youth court jurisdictional statute is section 43-21-151 of the Mississippi Code. The applicable parts of that statute state that:

(1) The youth court shall have exclusive original jurisdiction in all proceedings concerning a delinquent child, a child in need of supervision, a neglected child or an abused child.
(2) Jurisdiction of the child in the cause shall attach at the time of the offense and shall continue thereafter for that offense until the child’s twentieth birthday, unless sooner terminated by order of the youth court. The youth court shall not have jurisdiction over offenses committed by a child on or after his eighteenth birthday.

It is apparent that the applicable statutes do not exclude married minors from the Youth Court Act. Therefore, we hold that the youth court does have jurisdiction over married minors under age eighteen.

III.

The next issue is whether the youth court sitting in the First Judicial District of Hinds County had venue in this case since the alleged offense was committed in and the minor resided in the Second Judicial District of Hinds County.

The youth court was established in Hinds County as a division of the county court. Mississippi Code Annotated § 43-21-107(2) (1972). Hinds County has two judicial districts. Courts for the first district are located in Jackson and those in the second district are located in Raymond. The youth court venue statute section 43-21-155 provides that:

If a child is alleged to be a delinquent child or a child in need of supervision, the proceedings shall be commenced in any county where any of the alleged acts are said to have occurred. The youth court may, in the best interest of the child, transfer the case at any stage of the proceeding to the county where the child resides or to a county where a youth court has previously acquired jurisdiction.

This Court has held several times that where a county has two judicial districts, those districts must be treated as two separate counties and that a defendant must be indicted and tried in the judicial district of the county in which the offense was committed. Passions v. State, 208 Miss. 545, 45 So.2d 131 (1950); Evans v. State, 144 Miss. 1, 108 So. 725 (1926); Isabel v. State, 101 Miss. 371, 58 So. 1 (1912). Since each judicial district is to be treated as a separate county for purposes of jurisdiction and venue then under section 43-21-155, a juvenile may be tried either in the district where the offense was committed or in the district where the minor resides.

K.A.R. lived in Raymond and the alleged offense was committed in Raymond. The petition, filed in the First District charging her with the offense, was amended at the hearing to show that the offense occurred in the Second Judicial District. The hearing was held in the First Judicial District. It is the opinion of this Court that to comply with the venue section of the Youth Court Act, the petition’s filing and hearing should have been held in the Second Judicial District; however, we reverse this case on the evidence.

IV.

The question now is whether the evidence was sufficient to find that K.A.R. was in possession of the marijuana and hashish.

There was no proof at the hearing that K.A.R. was in actual possession of either the marijuana or hashish. The case against her was based on her constructive possession of the drugs.

In Curry v. State, 249 So.2d 414 (Miss.1971), this Court stated that:

Constructive possession may be shown by establishing that the drug involved was subject to his dominion or control. Proximity is usually an essential element, but by itself is not adequate in the absence of other incriminating circumstances. [Id. at 416],

In Powell v. State, 355 So.2d 1378 (Miss.1978) this Court discussed the presumption of constructive possession and held that:

The correct rule in this jurisdiction is that one in possession of premises upon which contraband is found is presumed to be in construcive possession of the articles, but the presumption is rebuttable. We have held that where contraband is found upon premises not in the exclusive control and possession of the accused, additional incriminating facts must connect the accused with the contraband. Where the premises upon which contraband is found is not in the exclusive possession of the accused, the accused is entitled to acquittal, absent some competent evidence connecting him with the contraband. Sisk v. State, 290 So.2d 608 (Miss.1974). [Id. at 1379].

In this case, the presumption of constructive possession was rebutted by proof from the testimony of K.A.R. that she was not in exclusive control and possession of the premises. Her testimony, as well as testimony offered by the state, showed that Oddie Hughes and K.A.R.⅛ husband both lived in the trailer. Further, the hashish was found outside the trailer and there was no evidence showing that K.A.R. knew of its existence or its owner. The marijuana was found in a common area of the trailer which at the time the police arrived was being occupied by six different persons. The state offered no evidence that the marijuana belonged to K.A.R. other than it was found in her place of residence. The officers who testified at the hearing could not testify as to the exact place the marijuana was found since they were not the officers who found it.

Under the rule stated in Powell v. State, supra, once the presumption of constructive possession is rebutted, there must have been some competent evidence connecting K.A.R. with the contraband. In this case there was no such evidence; therefore, the judgment must be reversed and the minor discharged.

REVERSED AND MINOR DISCHARGED.

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


text:
    Earl MITCHELL v. STATE of Mississippi.
    No. 53965.
    Supreme Court of Mississippi.
    Nov. 23, 1983.
    Rehearing Denied Dec. 14, 1983.
   Appeal from Circuit Court, Hinds County; William F. Coleman, Judge.

Jerry L. Mills, William J. Johnson, Johnson & Mills, Clinton, for appellant.

Bill Allain, Atty. Gen. by Charles W. Maris, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.

Before BROOM, P.J., and ROY NOBLE LEE and DAN M. LEE, JJ.

AFFIRMED.

PATTERSON, C.J., WALKER, P.J., and BOWLING, HAWKINS, PRATHER and ROBERTSON, JJ. concur.


text:
    B.H. HARMON CONSTRUCTION COMPANY and The Western Casualty and Surety Company v. The MISSISSIPPI BANK.
    No. 53892.
    Supreme Court of Mississippi.
    Nov. 23, 1983.
    Rehearing Denied Dec. 14, 1983.
    William R. Purdy, Ron A. Yarbrough, Ott & Purdy, Jackson, for appellants.
    George F. Woodliff, III, Sam E. Scott, Suzanna Baker, Heidelberg, Woodliff & Franks, Jackson, for appellee.
   Appeal from Chancery Court, Hinds County; J.C. Stennett, Chancellor.

Before BROOM, P.J., and ROY NOBLE LEE and HAWKINS, JJ.

AFFIRMED.


text:
    Laura Lynn ALLEN, By and Through Her Next Friend, Juanita ALLEN v. DISTRICT FIVE OF WINSTON COUNTY and Winston County, Mississippi.
    No. 54015.
    Supreme Court of Mississippi.
    Nov. 23, 1983.
    Rehearing Denied Dec. 14, 1983.
    Jim Waide, West Point, for appellant.
    J. Hoy Hathorn, Hathorn & Hathorn, Louisville, for appellee.
   Appeal from Circuit Court, Winston County; Niles McNeel, Judge.

Before WALKER, P.J., and BOWLING and PRATHER, JJ.

AFFIRMED.


text:
    Carolyn Lisa HENDERSON, Minor, By Roger C. HENDERSON, Next Friend v. Steven Duane DEAN.
    No. 54019.
    Supreme Court of Mississippi.
    Nov. 30, 1983.
    Ronnie L. Walton, Williams, Glover, Walton & McAlilly, Meridian, for appellant.
    Robert M. Dreyfus, Jr., Goldman, Dreyfus & Primeaux, Meridian, for appellee.
   Appeal from Chancery Court, Lauderdale County; Howard R. Pigford, Chancellor.

Before WALKER, P.J., and BOWLING and PRATHER, JJ.

AFFIRMED.


text:
    John L. WARD v. STATE of Mississippi.
    No. 54627.
    Supreme Court of Mississippi.
    Nov. 30, 1983.
    William Dean Stark, Starkville, for appellant.
    Bill Allain, Atty. Gen. by Catherine Walker Underwood, Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Oktibbeha County; Harvey Buck, Judge.

Before BROOM, P.J., and ROY NOBLE LEE and DAN M. LEE, JJ.

AFFIRMED.


text:
    Ottowa CARTER v. STATE of Mississippi.
    No. 53995.
    Supreme Court of Mississippi.
    Nov. 30, 1983.
    John L. Bailey, Cliff Finch & Associates, Batesville, for appellant.
    Bill Allain, Atty. Gen. by Robert D. Find-ley, Sp. Asst. Atty. Gen., Jackson, for appel-lee.
   Appeal from Circuit Court, Quitman County; Elzy J. Smith, Judge.

Before WALKER, P.J., and BOWLING and PRATHER, JJ.

REVERSED, RENDERED AND APPELLANT DISCHARGED.

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


text:
    Donnie Ray TOWNER v. STATE of Mississippi.
    No. 54549.
    Supreme Court of Mississippi.
    Nov. 30, 1983.
    Herbert W. Wilson, Gulfport, for appellant.
    Bill Allain, Atty. Gen. by Marvin L. White, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Harrison County; J. Ruble Griffin, Judge.

Before WALKER, P.J., and ROY NOBLE LEE and BOWLING, JJ.

AFFIRMED.

PATTERSON, C.J., BROOM, P.J., and HAWKINS, DAN M. LEE, PRATHER and ROBERTSON, JJ., concur.


text:
    Fred J. LOEFFLER v. STATE of Mississippi.
    No. 54623.
    Supreme Court of Mississippi.
    Nov. 30, 1983.
    Richard V. Dymond, Laurie S. Caldwell, Gulfport, for appellant.
    Bill Allain, Atty. Gen. by Marvin L. White, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Harrison County; Kosta N. Vlahos, Judge.

Before WALKER, P.J., and BOWLING and PRATHER, JJ.

AFFIRMED.

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


text:
    Bobbie HUBBARD, et al. v. Stanley M. BOLTON, et al.
    No. 54641.
    Supreme Court of Mississippi.
    Nov. 30, 1983.
    Rehearing Denied Jan. 11, 1984.
    D. Briggs Smith, Jr., Smith & Phillips, Batesville, for appellants.
    No brief filed for appellee.
   Appeal from Chancery Court, Panola County; L.E. Hannaford, Sr., Chancellor.

Before BROOM, P.J., and ROY NOBLE LEE and DAN M. LEE, JJ.

AFFIRMED.


text:
    SOUTHERN SPORTSWEAR, INC., a MS Corp. v. Gary REEVES, et ux.
    No. 54622.
    Supreme Court of Mississippi.
    Nov. 30, 1983.
    Robert G. Krohn, Price, Krohn & McLe-more, Corinth, for appellant.
    James H. Mathis, Corinth, for appellee.
   Appeal from Circuit Court, Alcorn County; Fred Wicker, Judge.

Before BROOM, P.J., and ROY NOBLE LEE and DAN M. LEE, JJ.

AFFIRMED.


author: BROOM, Presiding Justice, PRATHER, Justice,

text:
    Frank GHOLAR v. STATE of Mississippi.
    No. 53945.
    Supreme Court of Mississippi.
    Nov. 30, 1983.

      John H. Anderson, Hattiesburg, for appellant.
    Bill Allain, Atty. Gen. by Walter L. Turner, Sp. Asst. Atty. Gen., Jackson, for appel-lee.
   BROOM, Presiding Justice,

for the Court:

Murder is the offense for which defendant Frank Gholar was convicted in the Circuit Court of Jefferson Davis County, the Honorable R.I. Prichard circuit judge. Life imprisonment was ordered. Chief grounds for appeal relate to the sufficiency of the evidence. We affirm.

Defendant Gholar lived with Teresa Williams whom, according to the jurors’ finding, he shot on February 15,1981, inside the residence. On that date, during the morning, Gholar and two friends: Charles Rushing and Robert Ball, consumed a quantity of whiskey and went to Teresa’s residence. Ball left, and Gholar went to sleep, after which Rushing left. No one saw the fatal shooting except defendant Gholar, who testified at the trial.

Cause of death (gun shot wound) was established by Forensic Pathologist Dr. Sergio Gonzales, M.D., who examined Teresa’s body. In addition to the bullet wound, Dr. Gonzales found other marks, abrasion type, on her chestwall. Sheriff Gary Jones also testified about results of his investigation of the killing and obtaining a signed statement in which Gholar stated he hit Teresa’s hand which held the gun and then the “gun went off”.

Gholar’s in-court testimony was that after going to sleep the next thing he remembered was “the cocking of a gun .... ” Teresa was standing over him with a pistol, which he hit with a twisting motion and somehow the pistol discharged wounding Teresa in the face killing her. He also testified to previous fights between them. Gholar, according to him, left the scene, using Teresa’s car and stayed gone two days, after which he surrendered to the sheriff giving fright as his reason for fleeing. Other facts will be stated as needful in this opinion.

Argument is that the state failed to establish malice and wrongful intent. Gho-lar’s brief asserts,

The record is totally silent of any ill will or malice existing within the defendant towards the decedent, in fact, all witnesses appearing for the State denied any knowledge of such ill will, intent, deliberation or malice. Further, defendant finds absolutely no circumstantial evidence in the record to indicate such malice, intent, or deliberation....

For the following reasons, the jurors were justified in rejecting Gholar’s in-court version that the deceased (Teresa) had a pistol pointed at him when he awakened from sleep, which pistol discharged and shot her as Gholar hit her hand. First, after the shooting, when one Williams came there Gholar stated that Teresa was asleep, knowing full well that he, Gholar, had just shot her. Second, at the time Williams (just after the shooting) went in the house, he saw Teresa’s body and a gun out of her reach; Williams then went and notified the sheriff and, upon returning, found that the gun had been placed in Teresa’s hand and her body had been moved some distance. At trial, Williams testified to these matters. Third, after the shooting, Gholar did not report the incident. Fourth, Gholar made no effort to get medical aid for Teresa. Fifth, he fled in Teresa’s car and stayed gone about two days. Sixth, Gholar’s in-court testimony that he was asleep differed from his pre-trial statement which did not mention him being asleep.

The inconsistencies which appear in the varying accounts given by defendant Gho-lar as to the facts and circumstances surrounding the shooting raised an issue of guilt suitable and proper for jury resolution. Clingan v. State, 404 So.2d 1386 (Miss.1981). Deciding whether the killing was justifiable or murder was an appropriate jury function, which the jurors discharged in this case and found against Gho-lar. The matters of flight, refusal to get medical aid, his stating Teresa was asleep, and the gun having been moved and placed in the left hand of Teresa (a right-handed person) were significant items of evidence indicating Gholar’s guilt of killing her with malice. If he had nothing to conceal about his guilt, why would he, after shooting her, have made the statement that she was in the house asleep and why would he have fled?

His reliance upon Weathersby v. State, 165 Miss. 207, 147 So. 481 (1933), is misplaced. Upon this record, the inconsistencies in defendant Gholar’s testimony, considered together with the fact that he fled the scene and remained gone for some two days, preclude acquitting him on the so-called Weathersby Rule.

We point out that the jurors were given a number of instructions authorizing them, at their discretion, to return a verdict of manslaughter in this case. It is arguable upon the record whether the evidence properly justified the giving of any instruction on manslaughter. Nevertheless, assuming ar-guendo that manslaughter instructions were appropriate, the jury rejected any option that they had as to manslaughter and returned a verdict of guilty as charged which we find was properly supported by the record. After careful analysis of all of the testimony, we conclude that the guilt of Gholar was established beyond a reasonable doubt and that, there being no reversible error demonstrated, affirmance is required.

AFFIRMED.

PATTERSON, C.J., WALKER, P.J., and ROY NOBLE LEE, BOWLING, HAWKINS and ROBERTSON, JJ., concur.

PRATHER and DAN M. LEE, JJ., dissent.

PRATHER, Justice,

dissenting:

I respectfully dissent from the majority.

Malice is the single most important element of murder. Patterson v. State, 289 So.2d 685 (Miss.1974); Pendergraft v. State, 213 So.2d 560 (Miss.1968); Pitts v. State, 241 So.2d 668 (Miss.1970). The state in its brief conceded that there was no hard evidence of malice. No one saw the shooting occur other than the defendant; nor could anyone testify at trial to the defendant’s state of mind.

The theory of the defendant is that while trying to protect himself, he knocked or twisted the decedent’s hand which resulted in the gun’s discharge. Defendant’s testimony at trial although inconsistent in some details with the statement he gave Sheriff Jones is not inconsistent with respect to how the shooting occurred. Both stories indicate the gun discharged while he was trying to move the gun away from him.

No one was in the house besides the defendant and decedent other than a baby girl. The defendant was asleep when Rushing left and was awakened by the cocking sound of a gun being held by the decedent. There was no testimony that defendant and decedent had been fighting or otherwise had ill feelings toward each other. In fact, the defendant testified that he left the house that day to get breakfast for the decedent since he had forgotten to get her something for Valentine’s Day the preceding day. No one testified that the homicide was deliberate. The pathologist stated that the wound was consistent with defendant’s testimony.

There is no malice shown by the evidence; therefore, the defendant could not be guilty of murder. We believe that the trial judge should have granted the peremptory instruction as to murder and should have limited the jury’s consideration to the theories of manslaughter or innocence. Bergman v. State, 160 Miss. 65, 133 So. 208 (1931); Bangren v. State, 196 Miss. 887, 17 So.2d 599 (1944); Cutrer v. State, 207 Miss. 806, 43 So.2d 385 (1949); Coleman v. State, 218 Miss. 246, 67 So.2d 304 (1953); Jordan v. State, 248 Miss. 703, 160 So.2d 926 (1964); Wells v. State, 305 So.2d 333 (Miss.1975).

I, therefore, would reverse the murder conviction and remand for sentencing on manslaughter. The authority for this action is well established. Wells v. State, 305 So.2d 333 (Miss.1975).

DAN M. LEE, J., joins this dissent.

      . Gholar’s indictment referred to the victim as “Tressie” Williams. However, different witnesses’ testimony also referred to her as “Teresa” or “Treasie”.


author: BROOM, Presiding Justice,

text:
    Annie M. WILEY, et al. v. In the Matter of the Extension of CORPORATE BOUNDARIES OF the CITY OF IUKA, Mississippi.
    No. 53981.
    Supreme Court of Mississippi.
    Nov. 30, 1983.
    Ed W. Jenkins, Comer & Jenkins, Boone-ville, for appellants.
    Harold S. Jackson, Richard O. Clark, Iuka, for appellee.
    Before BROOM, P.J., and ROY NOBLE LEE and DAN M. LEE, JJ.
   BROOM, Presiding Justice,

for the Court:

Municipal annexation of adjacent territory is the gist of this case, appealed from the Chancery Court of Tishomingo County, the Honorable Fred P. Wright, Chancellor. Petitioner/appellee City of Iuka, a municipal corporation, initiated the annexation process by enacting an ordinance for the annexation. Subsequently the chancery court decreed the annexation, and on appeal the objectors/appellants contend that proper notice was not posted in the territory annexed as required by Mississippi Code Annotated § 21-1-15 (1972). We reverse.

Sole issue is: Does § 21-1-15, supra, require posting of notice of the proposed annexation in the territory sought to be annexed. Pertinent language of § 21-1 — 15 is, “The said notice shall be given ... by posting a copy of such notice in three or more public places in such territory.”

Here, because the notice was posted only within the already existing corporate boundaries of Iuka, and not within the territory sought to be annexed, appellant contends the chancery court lacked jurisdiction under § 21-1-15. Appellee, Iuka, contends that it gave proper notice “by publishing in the local newspaper and by posting the notice in three public places within the corporate boundaries of the City of Iuka”. Iuka’s view is that, in an annexation proceeding, the phrase “such territory” in § 21-1-15 does not mean within “the proposed territory to be annexed .... ”

Iuka does not assert that it posted any notice in the territory which the chancellor decreed to be annexed. Argument of Iuka is that there are no public places located within the territory to be annexed other than the Iuka public school which was in vacation when the notices were posted. According to Iuka, it posted notices at the post office, courthouse, and city hall, which under its construction of the statute were sufficient notices without posting any notice within the geographical boundaries of the territory proposed to be annexed.

Clearly § 21-1-15 requires on its face that notice be posted in three or more public places within “such territory”. Under our established case law, the notice requirement must be strictly complied with and the record must show “that they [notices] were posted as required by statute”. Myrick v. Incorporation of a Designated Area into a Municipal Corporation to be Named Stringer, 336 So.2d 209 (Miss.1976); Langstaff v. Town of Durant, 122 Miss. 471, 84 So. 459 (1920).

Pyle and Mockbee, Municipal Annexation in Mississippi, 45 Miss.L.J. 393 (1974), in discussing the notice requirement of municipal annexation states:

Once the date (for hearing) has been set, notice must be published once a week for three consecutive weeks in a newspaper having general circulation in the territory to be annexed, and be posted in three or more public places in such territory.

45 Miss.L.J. at 411 (emphasis added).

A public place for the posting of legal notices may best be buildings such as courthouses, post offices, and city halls, where there are such buildings existing within the territory where posting is necessary. However, where no such building is located within “such territory”, other places may qualify as being public in nature: business places, utility poles by a highway, school yards or buildings, or even in restaurants or barber shops. Taylor v. State, 396 So.2d 39 (Miss.1981); Kelley v. Yearwood, 204 Miss. 181, 37 So.2d 174 (1948); Nelson v. City of Natchez, 197 Miss. 26, 19 So.2d 747 (1944).

In the present case, no notice was posted anywhere within “such territory” proposed to be annexed as required by § 21-1-15. Therefore, the lower court should not have heard the matter, and reversal is required.

REVERSED AND RENDERED.

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


author: WALKER, Presiding Justice,

text:
    PEOPLES BANK OF MENDENHALL, Mississippi v. Jim R. WYATT, Dorman J. Davis, Individually, and as Administrator of the Estate of James Moody Davis, Deceased, Margaret Clay Davis, Virginia Lynn Davis and Margaret Leah Davis.
    No. 54628.
    Supreme Court of Mississippi.
    Nov. 30, 1983.

      Edward J. Currie, Jr., Steen, Reynolds, Dalehite & Currie, Jackson, for appellant.
    Lem Adams, III, Brandon, for appellees.
    Before WALKER, P.J., and BOWLING and PRATHER, JJ.
   WALKER, Presiding Justice,

for the Court:

This is an appeal from the Circuit Court of Rankin County from an order of that court peremptorily instructing the jury to return a verdict in favor of the Estate of James Moody Davis.

The first question in this case is whether a guaranty executed by James Moody Davis in connection with a loan obtained from the Bank of Mendenhall by Jim R. Wyatt and Dorman Davis constituted a claim which was required to be probated within ninety days after the first publication of notice to creditors as required by Mississippi Code Annotated section 91-7-151 (Supp.1983). The underlying question with reference to the necessity of said claim being probated by the bank in the Estate of Moody Davis is whether the guaranty was a contingent obligation of Moody Davis. If contingent, it would not require probating and suit thereon could be brought against the estate in the circuit court without having been probated.

On November 3, 1977, Jim Wyatt and Dorman Davis executed a promissory note to the Bank of Mendenhall for $70,000.00. A continuing guaranty was executed by Moody Davis on November 14, 1977 in consideration of the bank extending credit to Wyatt and Dorman Davis. Upon execution of this guaranty, the bank paid over to Jim Wyatt and Dorman Davis the sum of $70,-000.00. Payments were to begin April 1, 1978 in the amount of $3,000.00 due every three months thereafter. On October 11, 1978 Moody Davis died. The first notice to creditors to probate their claims was published on October 25, 1978. The promissory note executed by Jim Wyatt and Dorman Davis was declared in default after the last payment was made in November, 1979. Thereafter, on August 31,1981 the Bank of Mendenhall brought suit against Dorman Davis, Individually and as Administrator of the Estate of James Moody Davis, Deceased, and Jim R. Wyatt (and others) for the balance remaining on the promissory note plus interest and attorney’s fees, all of which amounted to $88,233.09.

The circuit court held that the bank’s claim should have been probated in the Estate of Moody Davis and since it was not timely probated that the claim was barred and for that reason granted a peremptory instruction in favor of the estate.

In Reedy v. Alexander, 202 Miss. 80, 89, 30 So.2d 599, 601 (1947), this Court stated:

The term “claim” in statutes relating to claims against estates includes not only debts already due, but unmatured debts.... It applies only to specific money demands due or to become due and not to inchoate and contingent claims.

The case of Sledge & Norfleet Co. v. Dye, 140 Miss. 779, 106 So. 519 (1926) involved two notes endorsed by Mrs. Jones and delivered to Sledge and Norfleet Company as collateral security for an indebtedness owed by Coldwater Mercantile Company. Sledge failed to probate the notes and instituted suit against Mrs. Jones’ estate. The Court held that the claim was secondary because the notes were given as collateral security, and that the claim was contingent because the corporation was primarily liable and might have paid the notes.

The Court stated: “Not only was the liability by virtue of this endorsement secondary, but it was contingent upon the failure of the Coldwater Mercantile Company to pay its indebtedness to the appellant when the same became due. Whether the Coldwater Mercantile Company would pay or fail to pay the note to the appellant, for the payment of which the two notes indorsed by the testatrix were pledged, could only be ascertained after the same became due on November 15, 1922, which was long after the death of the testratrix.” (140 Miss, at 786, 106 So. at 520).

The liability of Moody Davis was contingent upon the obligors on the note and deed of trust not paying it according to its terms. By the very nature of the transaction in the case sub judice, Moody Davis was secondarily liable on his obligation to the bank. If the obligors on the promissory note had made the payments called for therein until the note was finally paid, there would have been no liability to the bank by Moody Davis. Therefore, his liability would never arise as a practical matter until there was a default by the obligors on the note.

Since the liability of Moody Davis was a contingent one and one which would possibly never occur, it was not one which was required to be filed for probate within the statutory period of ninety days following first notice to creditors. Therefore, the circuit court erred in dismissing the bank’s suit against the estate.

CROSS APPEAL

The cross-appellant, Dorman Davis, asserts the lower court erred in not granting his motion to dismiss the amended declaration because he was under the disability of minority at the time he executed the promissory note and that said note was not thereafter ratified after he reached his majority.

We find this issue presented without merit as Dorman Davis was nineteen years of age, being born July 2,1958, at the time he signed the promissory note. Mississippi Code Annotated section 93-19-13 (Supp. 1983) provides that all persons eighteen years or older shall have the capacity to enter into binding contractual relationships affecting personal property. Also see Garrett v. Gay, 394 So.2d 321 (Miss.1981).

This cause is reversed and remanded on direct appeal and affirmed on cross-appeal.

REVERSED AND REMANDED ON DIRECT APPEAL AND AFFIRMED ON CROSS-APPEAL.

PATTERSON, C.J., BROOM, P.J., and ROY NOBLE LEE, BOWLING, HAWKINS, DAN M. LEE, PRATHER and ROBERTSON, JJ., concur.


text:
    In re Paul John CRECHALE.
    Misc. No. 1612.
    Supreme Court of Mississippi.
    Nov. 30, 1983.
    Robert Rogan Marshall, Jackson, for appellant.
    B. Stirling Tighe, Jackson, for appellee.
    Before WALKER, P.J., and ROY NOBLE LEE and BOWLING, JJ.
   WALKER, Presiding Justice,

for the Court:

ON PETITION FOR WRIT OF HABEAS CORPUS

The petitioner was found in contempt of court for failure to pay the sum of $8,000.00 plus interest as previously ordered in the final decree of divorce entered July 2,1982. The order of the chancery court finding Mr. Crechale in contempt provided as follows:

IT IS, THEREFORE, ORDERED AND ADJUDGED that any lawful officer of the State of Mississippi take Paul John Crechale into custody and deliver him to the Sheriff of Hinds County, who is hereby ordered to take custody of the said Paul John Crechale and to confine him in the Hinds County Detention Center until he has purged himself of said contempt by payment of the sum of $8,000.00 plus interest and costs.
IT IS FURTHER ORDERED AND ADJUDGED that Defendant pay to Plaintiff the further sum of $ 300.00 as a reasonable attorney’s fee for the preparation, filing and hearing on the Motion to Find Defendant in Contempt.

Mr. Crechale contends that he can obtain sureties in order to post an appearance bond guaranteeing that if this Court affirms the judgment of the lower court he will appear and abide by the terms of the chancery court holding him in contempt, i.e., he will surrender to the Sheriff of Hinds County and be confined in the Hinds County Detention Center until he has purged himself of said contempt by payment of $8,000.00 plus attorney’s fees, plus interest and costs; but, that he is unable to obtain sureties who will guarantee payment of the judgment if he abides by the order of contempt by presenting himself to the Sheriff, if the case is affirmed.

Mississippi Code Annotated section 11-51-12 (Supp.1983) provides:

(1) A person ordered by any tribunal, except the supreme court, to be punished for a civil contempt, may appeal to the court to which other cases are appealable from said tribunal. If jail confinement is ordered to compel the payment of any monetary sum, the contemnor shall be allowed to appeal upon the execution of an appearance bond, payable to the appel-lee, with sufficient sureties, to be approved by the sheriff or other officer in whose custody the appellant may be, in the penalty of one hundred twenty-five percent (125%) of such sum as he has been adjudicated in contempt for failure to pay, unless the court shall determine that a lesser bond should be required. The bond shall be conditioned to abide the results of the appeal.
(2) Where the punishment for civil contempt is other than jail confinement, the contemnor shall be allowed to appeal upon the posting of a bond, payable to the appellee, with sufficient sureties, to be approved by the tribunal appealed from, in an amount to be fixed by such tribunal, conditioned to abide the results of the appeal.
(3) All appeals allowed in accordance with the provisions of this section shall operate as a supersedeas.
(4) The burden of proof in civil contempt shall be proof by a preponderance of the evidence.

In effect, Mr. Creehale’s argument is that section 11-51-12 provides for nothing more than an appearance bond and that if he appears to abide by the terms of the chancery court order holding him in contempt, i.e., that he go to jail until he pays the sum of $8,000.00, etc., then the terms of the bond would be satisfied and there would be no further obligation on the sureties. He concedes, however, that in the event he should not appear to abide by the judgment, then the sureties would be bound to pay unto Michelle F. Crechale, his former wife, the sum of $8,000.00 plus interest and costs.

Michelle F. Crechale contends that section 11-51-12 should be interpreted to mean that if this Court should affirm the judgment of contempt entered by the chancery court against her former husband, the sureties would be obligated to pay her the sum of $8,000.00 plus interest and costs.

This case is one of first impression and the authorities cited by neither party are helpful.

We have carefully considered section 11-51-12. It clearly refers to the bond as an “appearance bond.” Accordingly, if this Court should affirm the judgment of the lower court holding Paul John Crechale in contempt and he failed to appear to abide by that order, the sureties would be obligated to pay Michelle F. Crechale the sum of $8,000.00 plus interest and costs. On the other hand, if Mr. Crechale should appear to abide by the order of contempt and surrender himself to the Sheriff of Hinds County, the sureties would have no further obligation under the appearance bond.

For the reasons stated above, the stay of execution on judgment of contempt heretofore entered is set aside and the Sheriff of Hinds County shall be at liberty to enforce the judgment of the chancery court holding Mr. Crechale in contempt, subject to Mr. Crechale posting an appearance bond as provided by section 11-51-12 and approved as provided by law.

PATTERSON, C.J., BROOM, P.J., and ROY NOBLE LEE, BOWLING, HAWKINS, DAN M. LEE, PRATHER and ROBERTSON, JJ., concur.


author: BEATTY, Justice.

text:
    Ex parte Melvin LAWRIMORE. (Re: Melvin Larimore v. State of Alabama).
    82-757.
    Supreme Court of Alabama.
    Sept. 16, 1983.
    J. Tilden Dillard, Decatur, for petitioner.
    Charles A. Graddick, Atty. Gen., and Ger-rilyn V. Grant, Asst. Atty. Gen., for the State.

       In the report of the action of the Court of Criminal Appeals, the defendant’s name was spelled “Larimore.” See 428 So.2d 1378 and 434 So.2d 874.

   BEATTY, Justice.

The judgment of the Court of Criminal Appeals, 434 So.2d 874 denying rehearing 428 So.2d 1378, is reversed. This case is remanded to that Court for an order remanding this case to the trial court directing that court to enter a written statement by the judge as to the evidence relied on and reasons for revoking probation. Armstrong v. State, 294 Ala. 100, 312 So.2d 620 (1975); Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973).

REVERSED AND REMANDED.

All the Justices concur.


author: PER CURIAM.

text:
    Melvin LARIMORE v. STATE of Alabama.
    8 Div. 800.
    Court of Criminal Appeals of Alabama.
    Nov. 1, 1983.
   PER CURIAM.

This cause is' reversed and remanded to the circuit court on authority of Larimore v. State, 441 So.2d 122 (1983).

REVERSED AND REMANDED.

All the Judges concur.

BOWEN, P.J., in result only.


author: JONES, Justice.

text:
    Ex parte Chester BLAND. (In re Chester BLAND v. STATE of Alabama).
    82-666.
    Supreme Court of Alabama.
    Sept. 23, 1983.

      John I. Cottle, III of Cottle & Cottle, Tallassee, for petitioner.
    Charles A. Graddick, Atty. Gen., and Ger-rilyn V. Grant, Asst. Atty. Gen., for respondent.
   JONES, Justice.

Petitioner/Appellant Chester Bland, an inmate of the Alabama prison system, filed a petition in circuit court for a writ of habeas corpus, alleging that his “good time” credits had been revoked at a hearing which failed to afford him due process of law. The circuit court dismissed the petition without a hearing. The Court of Criminal Appeals, 428 So.2d 1373, affirmed without an opinion. After Petitioner’s application for rehearing was overruled, we granted his petition for certiorari, which utilized ARAP 39(k). We reverse and remand.

FACTS

Petitioner Chester Bland is now, and at all relevant times has been, an inmate of the Alabama prison system. On October 13, 1982, Bland was charged with a violation of prison regulations: assaulting a prison officer. Bland allegedly engaged in physical contact with Henry DeJarnett, scratching his forehead. A disciplinary proceeding was instigated against Bland, and on October 17, 1982, Bland received notice that the charge against him would be heard by a disciplinary committee on October .19.

Upon notification of the hearing date, Petitioner requested that Officer Barnes and an inmate, Jeffery Jackson, be called to testify at the disciplinary proceedings. The record indicates that Officer Barnes was not present because the hearing was scheduled on a day when he was not on duty at the prison. As for inmate Jackson, Petitioner alleges that the record fails to indicate why he was not in attendance at the hearing, while the State claims only that the record is “unclear” on this point.

The only testimony taken at the hearing was Petitioner’s sworn statement, denying his guilt of the alleged infraction. Subsequently, the disciplinary committee found Petitioner to have violated the prison regulations, and revoked more than 13 years of “good time” credits which he had accumulated during his incarceration.

DECISION

In Williams v. Davis, 386 So.2d 415 (Ala.1980), this Court observed:

“[T]he United States Supreme Court has held that a prisoner may not be stripped of ‘good time’ credits without some modicum of due process being accorded to him at his disciplinary hearing. Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974).
“ ‘Lawful imprisonment necessarily makes unavailable many rights and privileges of the ordinary citizen, a ‘retraction justified by the considerations underlying our penal system.’ Price v. Johnston, 334 U.S. 266, 285, 68 S.Ct. 1049, 1060, 92 L.Ed. 1356 (1948). But, though his rights may be diminished by the needs and exigencies of the institutional environment, a prisoner is not wholly stripped of constitutional protections when he is imprisoned for crime.... Prisoners may also elaim the protections of the Due Process Clause. They may not be deprived of life, liberty, or property without due process of law. Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972); Wilwording v. Swenson, 404 U.S. 249, 92 S.Ct. 407, 30 L.Ed.2d 418 (1971); Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945).
“‘Of course, as we have indicated, the fact that prisoners retain rights under the Due Process Clause in no way implies that these rights are not subject to restrictions imposed by the nature of the regime to which they have been lawfully committed. Cf. CSC v. Letter Carriers, 413 U.S. 548, 93 S.Ct. 2880, 37 L.Ed.2d 796 (1973); Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973); Parker v. Levy, 417 U.S. 733, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974). Prison disciplinary proceedings are not part of a criminal prosecution, and the full panoply of rights due a defendant in such proceedings does not apply. Cf. Morrissey v. Brewer, 408 U.S. 471, at 488, 92 S.Ct. 2593, at 2603, 33 L.Ed.2d 484. In sum, there must be mutual accommodation between institutional needs and objectives and the provisions of the Constitution that are of general application.
“ ‘We also reject the assertion of the State that whatever may be true of the Due Process Clause in general or of other rights protected by that Clause against state infringement, the interest of prisoners in disciplinary procedures is not included in that ‘liberty’ protected by the Fourteenth Amendment.... ’
Wolff v. McDonnell, 418 U.S. 539 at 555, 556, 557, 94 S.Ct. 2963 at 2974, 2975, 41 L.Ed.2d 935 (1974).”

After quoting at some length from Wolff, Williams continues:

“In Wolff, supra, the United States Supreme Court held that due process required that prisoners in a disciplinary hearing, the result of which could be the revocation of their ‘good time’ benefits, must be given advance written notice of the charges against them and a written statement of the evidence relied upon by the disciplinary board and the reasons for their action. The Court held that because the opportunity to be heard was an essential part of due process, a prisoner should be allowed to call witnesses and present documentary evidence. The Court did not hold that due process always required allowing prisoners to call witnesses but rather established a flexible standard to be used by courts in determining whether due process required allowing a prisoner to call witnesses in his own behalf. That standard is a balancing test between the interests of the prisoner in retaining his ‘good time’ and the interests of the prison in institutional safety and correctional goals.
“ ‘Two of the procedures that the Court held should be extended to parolees facing revocation proceedings are not, but must be, provided to prisoners in the Nebraska Complex if the minimum requirements of procedural due process are to be satisfied. These are advance written notice of the claimed violation and a written statement of the fact-finders as to the evidence relied upon and the reasons for the disciplinary action taken....
“ ‘Part of the function of notice is to give the charged party a chance to marshal the facts in his defense and to clarify what the charges are, in fact. See In re Gault, 387 U.S. 1, 33-34, and n. 54, 87 S.Ct. 1428, 1446-1447, and n. 54, 18 L.Ed.2d 527 (1967)....
“ ‘ We are also of the opinion that the inmate facing disciplinary proceedings should be allowed to call witnesses and present documentary evidence in his defense when permitting him to do so will not be unduly hazardous to institutional safety or correctional goals.... [H]ere we must balance the inmate’s interest in avoiding loss of good time against the needs of the prison and some amount of flexibility and accommodation is required.... ’

Wolff v. McDonnell, 418 U.S. 539 at 563, 564, 566, 94 S.Ct. 2963 at 2978-2979, 41 L.Ed.2d 935 (1974) [emphasis added in Williams.]

“The United States District Court for the Middle District of Alabama, Northern Division, held that loss of ‘good time’ is a sufficient deprivation of liberty to warrant a prior due process hearing. Diamond v. Thompson, 364 F.Supp. 659 (M.D. Ala.1973). That Court also held:

“ ‘[A]t a minimum, the prisoners transferred from Atmore to administrative segregation during the disturbance there were entitled to written notice of the charges against them, an opportunity to be heard and present witnesses and documentary evidence, if any, before an impartial board composed of persons who were not directly involved in the incident, the right to confront and cross-examine adverse witnesses, and a written statement of findings by the board....’

“Diamond v. Thompson, 364 F.Supp. 659 at 665 (M.D.Ala.1973).

“Surely, if the Due Process Clause requires at a minimum that prisoners have an opportunity to be heard, to present witnesses and documentary evidence, and to cross-examine and confront adverse witnesses before a change in the quality of their confinement, then likewise, prisoners should have the same rights before they are deprived of their ‘good time’ credits.

“We hold in accord with Wolff, supra, that due process requires that prisoners be allowed to produce documentary evidence and to introduce witnesses in their own behalf at a disciplinary hearing which may result in the revocation of their ‘good time’ benefits, unless the production of such documentary evidence or the attendance of such witnesses would be unduly hazardous to institutional safety or correctional goals.” 386 So.2d 417-419.

Denying the presence of a witness because of the mere fact that the requested witness is “off duty” or “cannot be reached by phone,” does not comport with those basic due process rights afforded in both Williams, supra, and Wolff, supra.

This cause is remanded to the Court of Criminal Appeals with instructions to remand to the circuit court for that court to remand it to the prison disciplinary board for that board to grant petitioner a new hearing in accordance with the principles set out in this opinion.

REVERSED AND REMANDED WITH INSTRUCTIONS.

All the Justices concur except FAULKNER, J., not sitting.


text:
    Chester BLAND v. STATE.
    5 Div. 748.
    Court of Criminal Appeals of Alabama.
    Nov. 1, 1983.
   ON REMAND

PER CURIAM.

Reversed and remanded to the circuit court with instructions to remand this cause to the prison disciplinary board for that board to grant appellant a new hearing in accordance with the principles set out by the Supreme Court of Alabama in its opinion in this case, Ex parte Bland, 441 So.2d 122 (Ala.1983).

REVERSED AND REMANDED WITH INSTRUCTIONS.

TYSON, HARRIS and TAYLOR, JJ., concur.

BOWEN, P.J., concurs in result only.


author: MADDOX, Justice.

text:
    Ex parte Lester Randolph PUGH. (Re: Lester Randolph Pugh v. State of Alabama).
    82-904.
    Supreme Court of Alabama.
    Nov. 4, 1983.
    Robert F. Clark, Mobile, for petitioner.
    Charles A. Graddick, Atty. Gen., and Helen P. Nelson, Asst. Atty. Gen., for respondent.
   MADDOX, Justice.

This Court granted a writ of certiorari to the Court of Criminal Appeals to preliminarily examine the record in this case on the authority of Ex parte State (Re: Longmire v. State), 443 So.2d 1265 (1982). After a review of the record, we cannot say the Court of Criminal Appeals was wrong when it struck the petitioner’s second appeal and then refused to reinstate his original appeal which had earlier been dismissed. Pugh v. State, 434 So.2d 875 (Ala.Cr.App.1983).

The petitioner was tried and convicted on August 3, 1982, without a jury, of unlawful possession of a controlled substance and carrying of a pistol in a vehicle without a license. The trial judge sentenced the petitioner to fifteen years’ imprisonment in the state penitentiary for possession of a controlled substance and six months’ imprisonment in the Mobile County jail for the conviction of not having a pistol permit. The petitioner, on August 3,1982, gave oral notice of appeal to the Court of Criminal Appeals. Oral argument was held on December 7, 1982. There is no record before us which reflects the events which occurred at the trial level. The following “facts” were obtained from the petition filed here. While the case was on appeal, the petitioner then made a motion to the trial court for a working appeal and/or reduction of sentence on December 29, 1982. The trial court held a hearing and granted the motion on January 3, 1983, and reduced petitioner’s sentence to ten years, suspended the sentence and placed petitioner on probation. Petitioner then filed a motion requesting the Court of Criminal Appeals to dismiss his appeal, which motion the court granted on January 10, 1983. Subsequently, the state filed a motion to reconsider the order by the trial judge which placed the petitioner on probation. The motion was heard by the presiding judge of the Thirteenth Judicial District on March 18, 1983, and was granted on April 1, 1983, and the petitioner’s original 15-year sentence was reinstated. The petitioner filed notice of appeal from the order reinstating his sentence on April 1,1983. The Court of Criminal Appeals struck it on April 26, 1983, and petitioner’s motion to reinstate his original appeal was denied without opinion. Pugh v. State, 434 So.2d 875 (Ala.Cr.App.1983).

The original trial judge relied on Code 1975, § 15-22-50, as authority to reduce petitioner’s sentence. That Code provision reads as follows:

“Circuit courts and district courts, subject to the provisions and conditions hereinafter provided, may suspend execution of sentence and place on probation any person convicted of a crime in any court exercising criminal jurisdiction. The court shall have no power to suspend the execution of sentence imposed upon any person who has been found guilty and whose punishment is fixed at death or imprisonment in the penitentiary for more than 10 years. Except as provided in the preceding sentence, the court, after a plea of guilty, after the returning of a verdict of guilty by the jury or after the entry of a judgment of guilty by the court, may suspend execution of sentence and place the defendant on probation, or may impose a fine within the limits fixed by law and also place the defendant on probation.” (Emphasis added.)

We hold that the trial court was without jurisdiction to suspend petitioner’s sentence, because the sentence was for a term of more than ten years. Code 1975, § 15-22-50. Moreover, the trial court had no jurisdiction over the case after the appeal to the Court of Criminal Appeals, under the facts of this case. It is apparent from the record that under the facts of this case, the trial court’s jurisdiction was not retained to allow the court to modify the judgment it had rendered; thus, the order suspending the sentence and granting probation could be revoked.

The judgment of the Court of Criminal Appeals is due to be affirmed.

AFFIRMED.

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


text:
    George Robert PERRY v. STATE.
    7 Div. 15.
    Court of Criminal Appeals of Alabama.
    May 3, 1983.
    Rehearing Denied July 5, 1983.
    Certiorari Denied Nov. 23, 1983 Alabama Supreme Court 82-996.

      Eason Mitchell of Mitchell, Green, Pino & Medaris, Calera, for appellant.
    Charles A. Graddick, Atty. Gen. and William D. Little, Asst. Atty. Gen., for appel-lee.
   JOSEPH J. MULLINS, Retired Circuit Judge.

The appellant was convicted in the Circuit Court of Shelby County of the offense of operating an overweight dump truck on Interstate Highway 1-65 in Shelby County, Alabama, and was fined $400.00 and costs. He appeals to this Court.

The appellant was at all proceedings in the trial court, and in this Court is represented by counsel of his choice. This case was submitted to this Court on briefs.

The facts in this case were stipulated by counsel for state, and the appellant, and submitted to the trial judge by agreement. The facts are that a proper complaint has been filed and served on the defendant. That the defendant and the state waive notice of the setting of the case, and are ready for trial. That the trial court has jurisdiction and venue of the case. That the defendant operated a dump truck on Interstate Highway 1-65 in Shelby County. That the scales used to weigh the dump truck were properly certified and accurate. That the weight of the dump truck was 79,000 pounds. That the dump truck had 5 axles, and the distance between the first and last axle or combination of axles was 37 feet. That the arrest was made in accordance with the laws of the state of Alabama.

The appellant’s first contention in his brief is that the “dump truck exclusion” as set forth in Code of Alabama, 1975, See. 32-9-20(4)(e) applies to the Interstate Highway System of‘Alabama. Appellant’s second contention is that the 10% scale tolerance for enforcement purposes as set out in Code Of Alabama, 1975, Sec. 32-9-20(4)(d) applies to the Interstate Highway System in Alabama.

The United States Code, Title 23, Section 127 is in words and figures, as follows:

“Sec. 127. Vehicle weight and -width limitations — Interstate System
“No funds authorized to be appropriated for any fiscal year under section 108(b) of the Federal-Aid Highway Act of 1956 (23 USCS Sec. 101 note) shall be apportioned to any State within the boundaries of which the Interstate System may lawfully be used by vehicles with weight in excess of twenty thousand pounds carried on any one axle, including all enforcement tolerances; or with a tandem axle weight in excess of thirty-four thousand pounds, including all enforcement tolerances; or with an overall gross weight on a group of two or more consecutive axles produced by application of the following formula:
( LN )
W = 500 ( + 12N + 36 )
_ ( )
( N-l )
where W = overall gross weight on any group of two or more consecutive axles to the nearest 500 pounds, L = distance in feet between the extreme of any group of two or more consecutive axles, and N = number of axles in group under consideration, except that two consecutive sets of tandem axles may carry a gross load of 34,000 pounds each providing the overall distance between the first and last axles of such consecutive sets of tandem axles is thirty-six feet or more; Provided, That such overall gross weight may not exceed eighty thousand pounds, including all enforcement tolerances, or with a width in excess of ninety-six inches, or the corresponding maximum weights or maximum widths permitted for vehicles using the public highways of such State under laws or regulations established by appropriate State authority in effect on July 1, 1956, except in the case of the overall gross weight of any group of two or more consecutive axles, on the date of enactment of the Federal-Aid Highway Amendments of 1974 (enacted Jan. 4, 1975), whichever is the greater. Any amount which is withheld from apportionment to any State pursuant to the foregoing provisions shall lapse. This section shall not be construed to deny apportionment to any State allowing the operation within such State of any vehicles or combinations thereof that could be lawfully operated within such State on July 1,1956. With respect to the State of Hawaii, laws or regulations in effect on February 1, 1960, shall be applicable for the purposes of this section in lieu of those in effect on July 1, 1956, except in the case of the overall gross weight of any group of two or more consecutive axles, on the date of enactment of the Federal-Aid Highway Amendments of 1974 (enacted Jan. 4, 1975). Notwithstanding any limitation relating to vehicle widths contained in this section, a State may permit any bus having a width of 102 inches or less to operate on any lane of 12 feet or more in width on the Interstate System.
(As amended Jan. 4, 1975, P.L. 93-643, Sec. 106, 88 Stat. 2283; May 5,1976, P.L. 94r-280, Title 1, Sec. 120, 90 Stat. 438.)”

Code Of Alabama, 1975, 1982 Cumulative Supplement, Title 32-9-20(4)(a) provides, in part, as follows:

“(4) Weight.
“(a.) The gross weight imposed on the highway by the wheels of any one axle of a vehicle shall not exceed 20,000 pounds, or such other weight, if any, as may be permitted by federal law to keep the state from losing federal funds; provided, that inadequate bridges shall be posted to define load limits.” (Emphasis Supplied)

Title 32-9-20(4)(c) provides, in part:

“(4) Weight.
«(c ) * * * Nothing jn this section shall be construed as permitting size or weight limits on the national system of interstate and defense highways in this state in excess of those permitted under 23 U.S.C., Section 127. If the federal government prescribes or adopts vehicle size or weight limits greater than or less than those now prescribed by 23 U.S.C., Section 127 for the national system of interstate and defense highways, the increased or decreased limit shall become effective on the national system of interstate and defense highways in this state.”

Section 32-9-29, 1975 Code of Alabama, 1982 Pocket Parts, provides for permits for movement of oversize vehicles or loads. Section (e) contains the following provision:

“(e.) Violation of federal laws, etc. No permit shall be issued under this section if the issuance of the permit would violate United States law or would cause the State of Alabama to lose its Federal-Aid funds.”

Code of Alabama, 1975, Pocket Parts 1982, Title 32-9-20(4)(d) provides, as follows:

“(d.) For the purpose of enforcement of subdivision (4) of this section, all scaled weights shall be deemed to have a margin of error of ten percent of the true gross or axle weight.”

Code of Alabama, 1958, Cumulative Pocket Parts, Title 36, Section 89(d) provided,

“(d.) Weight (1) the gross weight imposed on the highway by the wheels of any one axle of a vehicle shall not exceed 18,000 pounds, or such other weight, if any, as may be permitted by federal law to keep the state from losing federal funds, and subsection (3) provided that the maximum gross weight limit of any vehicle or combination of vehicles, including any tolerance which may be granted hereunder, shall not exceed the maximum gross weights prescribed by the Congress of the United States under the provisions of subsection 127, Section 1, Chapter 1, Title 23, United States Code or any other federal legislation amendatory thereof, or supplemental thereto, and no vehicle or combination of vehicles shall be permitted to operate on any portion of the interstate highway system of Alabama except as shall meet the above provisions of United States Code.”

Title 36, Section 91(7) of Code Of Alabama, 1958, Cumulative Pocket Parts 1973, provided for special permits for the movement of certain vehicles over the public highways, “excepting highways that are a segment of the interstate system.”

From a review of the history of the legislation, and a review of 1975 Code Of Alabama, Title 32-9-20 through 32-9-32, as last amended, and Title 23 U.S.C.S., Section 127, as last amended, it is clear that the legislators of Alabama intended that the size and weight of motor vehicles operating on interstate highways in the State of Alabama shall not exceed the provisions set out in Title 23 U.S.C.S., Section 127. Title 23 U.S.C.S. § 127 provides the operator of a motor vehicle a formula to figure the weight allowed on an interstate system, and states the kind of vehicles a state may exempt from the provisions of Title 23 U.S. C.S., Section 127, and allow to operate on an interstate highway. A five-axle dump truck weighing 79,000 pounds is not included as a vehicle exempt from the provisions of U.S.C.S., Section 127. It is noted that the formula for figuring the weight includes all enforcement tolerances; therefore, to add 10% allowed by Code Of Alabama, 1975, Section 32-9-20(4)(d), would violate the weight set out in Title 23 U.S. C.S., Section 127, and result in doing the very thing sought to be prevented by the Legislature of the State of Alabama.

We hold that 71,000 pounds is the maximum weight allowed on an interstate highway in the State of Alabama for a five-axle (5) dump truck with a distance of 37 feet between the first and last axle; therefore, the trial judge did not err when he ruled that the dump truck exclusion, as set out in the Code Of Alabama, 1975, Section 32-9-20(4)(e), and the ten percent (10%) weight tolerance as set out in the Code Of Alabama, 1975, Section 32-9-20(4)(d), does not apply to the interstate highway system.

The judgment of the trial court is due to be, and is hereby affirmed.

The foregoing opinion was prepared by Honorable JOSEPH J. MULLINS, a retired Circuit Judge, serving as a Judge of this Court; his opinion is hereby adopted as that of the Court.

The judgment below is hereby affirmed.

AFFIRMED.

All the Judges concur.