author: SUGG, Justice, BOWLING, Justice,

text:
    Robert W. VAUGHN v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY.
    No. 49937.
    Supreme Court of Mississippi.
    May 31, 1978.
    Miller & Dean, Mike L. Cordell, Green-ville, for appellant.
    Robertshaw & Merideth, Randolph Noble, Jr., Greenville, for appellee.
   SUGG, Justice,

for the Court:

This is an appeal from a garnishment proceeding in the Circuit Court of Washington County which resulted in a directed verdict for State Farm Mutual Automobile Insurance Company. The question for decision is whether the operator of an insured automobile was an additional insured within the terms of the omnibus clause of a motor vehicle liability policy.

Robert Vaughn obtained a judgment against James Creely, a minor, in the amount of $9,048.17. The judgment arose out of an accident which occurred on November 7, 1970 in which Vaughn’s minor son, Michael, sustained injuries while he was a passenger in an automobile driven by Creely. The automobile which Creely was driving was owned by E. H. McGarrh who had obtained a motor vehicle liability policy from State Farm on the automobile naming McGarrh as the insured.

Vaughn filed a suggestion of garnishment against State Farm suggesting that State Farm was indebted to Creely under the omnibus clause of the policy issued to McGarrh. State Farm answered the writ of garnishment and denied that it was so indebted. Vaughn contested the answer, and thus the issue was made up as to whether Creely was an additional insured within the meaning of the omnibus clause. The trial court held that Creely was not an additional insured and directed a verdict against Vaughn.

On the date of the accident McGarrh was divorced from his wife who lived separate and apart from him with some of the children of the parties, including Deborah McGarrh (now Deborah McGarrh Walls). McGarrh allowed his ex-wife to keep the automobile in question at her residence and permitted her unrestricted use of the automobile. Neither Mrs. McGarrh nor any of the children were named as insureds under the policy.

The automobile was within the primary and unrestricted control of Mrs. McGarrh who would allow Deborah to use the car upon request. Although Deborah used the car on frequent occasions, the key was kept by her mother and Deborah’s use was conditioned upon first obtaining permission from her mother. Deborah visited her father frequently, and he visited Deborah in the home of his ex-wife frequently. On some occasions Deborah drove the automobile to her father’s home for the purpose of a visit, but he did not object to the use of the automobile by Deborah, and placed no specific restrictions on her use of the automobile.

On November 9, 1970, Deborah was sixteen years of age. She requested use of the automobile from her mother to visit a local skating rink. After obtaining permission to use the automobile, Deborah arrived at the skating rink at approximately 7:00 p.m. She testified that she was approached by Michael Vaughn, who requested permission to use the automobile to go to a girlfriend’s home near the skating rink. Although Deborah initially refused to allow Michael the use of the automobile, she stated that she finally consented and permitted him to take the automobile with the understanding that he would go to his girlfriend’s home and return in approximately 30 minutes.

Michael Vaughn testified that he did not have a conversation with Deborah at the skating rink, but said that James Creely obtained permission to use the car. Michael said that he and Creely first went to his girlfriend’s house about two blocks from the skating rink, then to a local convenience store, and then to another friend’s home. After completing a visit at the second friend’s home, Michael and Creely were returning to the skating rink with Creely driving the automobile when the accident occurred.

Vaughn assigns as error the action of the lower court in sustaining the motion of State Farm for a directed verdict. When considering a motion for a directed verdict the court must examine the evidence for the plaintiff in the light most favorable to the plaintiff. Paymaster Oil Co. v. Mitch ell, 319 So.2d 652 (Miss.1975). There is a conflict in the testimony of Deborah and Michael as to who obtained permission from Deborah to use the automobile. Deborah said she gave permission to Michael, but he maintained she gave permission to James Creely. We accept Michael’s version under the rule stated above; however, it does not matter whether permission was given to Michael or Creely because neither is an additional insured under the omnibus clause for the reasons stated hereafter.

The omnibus clause in the policy issued to McGarrh reads as follows:

Insured — the unqualified word ‘insured’ includes
(1) the named insured, and
(2) if the named insured is a person or persons, also includes his or their spouse(s), if a resident of the same household, and
(3) if residents of the same household, the relatives of the first person named in the declarations, or of his spouse, and
(4) any other person while using the owned motor vehicle, PROVIDED THE OPERATION AND THE ACTUAL USE OF SUCH VEHICLE ARE WITH THE PERMISSION OF THE NAMED INSURED OR SUCH SPOUSE AND ARE WITHIN THE SCOPE OF SUCH PERMISSION, and
(5) under coverages A and B any other person or organization, but only with respect to his or its liability for the use of such owned motor vehicle by an insured as defined in the four subsections above.

While the omnibus clause of the policy extends coverage to another person only while using the automobile with the permission of the insured within the scope of such permission, section 63-15-43 Mississippi Code Annotated (1972) requires that such liability policies cover persons using the vehicle with either the express or implied permission of the named insured. Section 63-15-43 follows:

(1) A ‘motor vehicle, liability policy’ as said term is used in this chapter shall mean an owner’s or an operator’s policy of liability insurance, certified as provided in section 63-15-39 or section 63-15-41, as proof of financial responsibility, and issued, except as otherwise provided in section 63-15-41, by an insurance company duly authorized to write motor vehicle liability insurance in this state, to or for the benefit of the person named therein as insured.
(2) Such owner’s policy of liability insurance:
(a) shall designate by explicit description or by appropriate reference all motor vehicles with respect to which coverage is thereby to be granted.
(b) shall pay on behalf of the insured named therein and any other person, as insured, using any such motor vehicle or motor vehicles with the express or implied permission of such named insured, all sums which the insured shall become legally obligated to pay as damages arising out of the ownership, maintenance or use of such motor vehicle or motor vehicles within the United States of America or the Dominion of Canada, subject to limits exclusive of interest and costs, with respect to each such motor vehicle, as follows: ten thousand dollars ($10,000.00) because of bodily injury to or death of one (1) person in any one (1) accident and, subject to said limit for one (1) person, twenty thousand dollars ($20,000.00) because of bodily injury to or death of two (2) or more persons in any one (!) accident, and five thousand dollars ($5,000.00) because of injury to or destruction of property of others in any one (1) accident.

It is now settled in this state that, if there is any difference between the terms of a motor vehicle liability policy as written, and the requirements of the above statute, the requirements of the statute are incorporated into and become a part of the policy. State Farm Automobile Insurance Company v. Moore, 289 So.2d 909 (Miss.1976); United States Fidelity & Guaranty Co. v. Stafford, 253 So.2d 388 (Miss.1971).

In five cases we have considered omnibus clauses in motor vehicle liability policies to determine whether the operators of the motor vehicles were covered as permittees of the named insured. Two of the cases dealt with restricted permission given by the named insured to use a vehicle while three dealt with unrestricted permission.

Employers Mutual Casualty Co. v. Poe, 191 So.2d 541 (Miss.1966) involved restricted permission given by the named insured to a third party to use the vehicle. In this case we noted that three different rules have been applied in various jurisdictions in passing on the effect of a deviation from the scope of permission. The three rules are, (1) the strict or conversion rule, (2) the liberal rule, and (3) the moderate or minor deviation rule.

Although the Court did not “adopt categorically” either rule, it applied the minor deviation rule in deciding the case. The Court held that the employee was guilty of violent deviation from the permission granted by the named insured; consequently, the policy did not cover the use of the vehicle by the permittee.

In Travelers Indemnity Co. v. Watkins, 209 So.2d 630 (Miss.1968), we specifically adopted the minor deviation rule. This case also involved restricted permission given by the named insured, and we held that the Travelers policy covered the original permittee because his use of the truck was within the time, geographic and purpose limitations of the permission granted, and constituted only a minor deviation from the permission granted.

The case of International Service Insurance Company v. Ballard, 216 So.2d 535 (Miss.1968) involved unrestricted permission given by a named insured to a third person to use an automobile. This case announced the rule that use by a second permittee is covered under the omnibus clause, provided the named insured gives unrestricted permission to another (first permittee) to use an insured vehicle, and the first permittee allows a third party (second permittee) to use the insured vehicle to serve some purpose of the first permittee. This rule was followed in Moore and Stafford, discussed infra.

United States Fidelity and Guaranty Company v. Stafford, 253 So.2d 388 (Miss.1971) is another case where the named insured gave unrestricted permission to use an insured automobile. The automobile was being driven by a third person, the second permittee, while serving the benefit and purpose of the original or first permit-tee. We stated the general rule governing operation of an automobile by a second permittee with the permission of the original permittee in the following language:

In National Farmers Union Property & Casualty Company v. State Farm Mutual Auto Insurance Company, 277 F.Supp. 542 (D.Mont.1967), the Court, after dealing with facts somewhat similar to the facts in this case, quoted with approval from 7 Am.Jur. Automobile Insurance section 117 (1963) as follows:
The “general rule” that a permittee may not allow a third party to “use” the named insured’s car has generally been held not to preclude recovery under the omnibus clause where (1) the original permittee is riding in the car with the second permittee at the time of the accident, or (2) the second per-mittee, in using the vehicle, is serving some purpose of the original permittee. The courts generally reason that under such circumstances the second permit-tee is “operating” the car for the “use of the first permittee” and that such “use” is within the coverage of the omnibus clause.
(253 So.2d at 392)

We held the omnibus clause covered the operation of the vehicle by the second per-mittee, and that he was driving the vehicle with the implied consent of the named insured, because: (1) the original permittee was riding in the vehicle at the time of the accident, and (2) the second permittee, in operating the vehicle, was serving some purpose of the first permittee.

The case of State Farm Mutual Automobile Insurance Co. v. Moore, 289 So.2d 909 (Miss.1974) also involved the use of an insured vehicle where the named insured had given the first or original permittee unrestricted use of the vehicle, although he was not riding in the vehicle when the accident occurred. The first permittee allowed a third person, as second permittee, to use the automobile for his, the first permittee’s, benefit. We held that the omnibus clause covered the use of the vehicle by the second permittee because the first permittee was given unrestricted use of the automobile and, when the accident occurred, the second permittee was serving a purpose of the first permittee.

In our case, E. H. McGarrh was the named insured, and his ex-wife, as first permittee, had unrestricted use of the insured automobile. The second permittee was Deborah McGarrh, the daughter of the parties, who had possession of the automobile the night in question with the express consent of her mother. The third permit-tee, James Creely, was driving the automobile with the consent of Deborah, the second permittee. Mrs. McGarrh, the first permittee, did not give Creely permission to drive the automobile, she was not riding in the automobile at the time of the accident, and Creely was not using the automobile to serve any purpose for Mrs. McGarrh. The facts do not justify the inference that Creely was using the insured automobile with the implied permission of the named insured; therefore, Creely’s use of the automobile was not covered by the omnibus clause of the policy.

The other assignments of error have been considered but do not merit discussion.

AFFIRMED.

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

LEE and BOWLING, JJ., dissent.

BOWLING, Justice,

dissenting:

I respectfully dissent from the majority in this case.

It is elemental in law that no cases are exactly identical. The facts of each case have to be considered along with the established legal principles. In my humble opinion, the authorities, facts and discussions contained in the majority opinion are sufficient to require a reversal of the case.

First, let us look at the reason for the “omnibus clauses” being required as a part of automobile casualty insurance policies. It is obvious that the reason therefor is not primarily for the purpose of protecting the person operating the vehicle but is primarily for the purpose of protecting the traveling public who are injured by that person. Modern law makes an effort to be sure that as many vehicles as possible traveling on our modern highways and streets are covered by liability insurance.

The Mississippi Legislature recognized the above many years ago by enacting into law the Motor Vehicle Safety Responsibility Act of 1952. This law as quoted in the majority opinion requires that automobile liability insurance policies in this State include a provision that the company

. shall pay on behalf of the insured named therein and any other person, as insured, using. any such motor vehicle or motor vehicles with the express or implied permission of such named insured, all sums which the insured shall become legally obligated to pay as damages arising out of the ownership, maintenance or use of such motor vehicle or motor vehicles. (Emphasis supplied).

We stop here to observe that although this provision has been required for over twenty-five years, it has never been enforced. 'The policy in question' ha no such provisions and the majority opinion is impressive by quoting from the policy in the case before us where it says that “provided the operation and the actual use of such vehicle are with the permission of the named insured or such spouse and are within the scope of such permission . .

We would dare to surmise that if every citizen of this State would read his automobile liability insurance policy, he would not find the statutorily required clause but would find a clause similar to that quoted above.

Furthermore, in reading the cases cited in the majority opinion, each recognized that the omnibus clause in the policy before the Court did not conform to Mississippi statutory requirements and each held that the law required a clause as enacted by the Legislature in 1952. But none of them suggested doing anything about requiring that law to be enforced. It is unbelievable to this writer that the proper regulatory agencies of our State would allow this condition to exist for approximately twenty-five years, with the Court condemning the violation and nothing whatever being done. It is just that simple.

This Court, in prior cases, has reiterated the pronouncements of all jurisdictions setting out the purpose of the omnibus clause. In U. S. F. & G. Co. v. Stafford, 253 So.2d 388 (Miss.1971), this Court said:

We are of the opinion that the court should take into consideration the fact that vast numbers of automobiles are being driven on the streets and highways of this state by persons who are not the named insureds in the public liability policies covering these vehicles. The omnibus clause should be construed in the light of the manifest public policy of this state as indicated in the Motor Vehicle Safety Responsibility Act and in the later Uninsured Motor Vehicle Act, both of which clearly indicate the legislative policy of protecting the public and providing insurance coverage where persons are insured on the highways of the state.

In Travelers Indemnity Company v. Watkins, 209 So.2d 630 (Miss.1968), this Court stated:

The purpose of the omnibus clause has generally been recognized as being a liberalizing one. Thus, it has been said that the purpose of the clause is to extend liability insurance coverage to persons other than the owner who had permission to use the car without arbitrary and definite restrictions on such use. Similarly, it has been said that the purpose of the clause is not only to protect a person riding in or legally operating a car with the permission required by the policy, but also to protect any person injured by the operation of the car by giving him a cause of action against the insurer for injuries deemed by law to have been caused by the operation of the car.

In my opinion, the legal requirements of a policy applying the omnibus clause to drivers operating the vehicle with the “express or implied” permission of the named insured require a holding in the case at bar that Deborah McGarrh’s permittee was an insured under the omnibus clause that should have been in the policy, and admittedly applies under the Mississippi statute. We are faced with a very unusual situation — a happy relationship between divorced parents. The facts of that relationship as they apply to the automobile in question are undisputed. Mr. McGarrh and Mrs. McGarrh (divorced approximately two years) lived not too far apart in Greenville, Mississippi. The teenage children lived in the house with their mother. All had an excellent relationship. Deborah (sixteen years old and having a driver’s license at the time of the collision) was close to her father and, according to her, she saw him every day. Mr. McGarrh purchased two automobiles; he kept one for his own use; he turned the other over to his “family” for their sole and exclusive use, without any restrictions whatever. The only thing he did was retain title (probably for the purpose of paying for it) and secure the insurance policy in question that covered the car. It is undisputed that Mr. McGarrh exercised no control and had nothing whatever to do with the car. In effect, his family were the insureds. He knew that Deborah used the car frequently, to go to school, to carry her younger brother to school, to come to see him, to go to the skating rink, and any other place so long as it met with the approval of her mother. As she had done before, on the night in question, Deborah had used the car to go to the local skating rink. Admittedly, no restrictions whatever were placed on her use of the car by either her father or her mother.

Now comes into play the purpose for the omnibus clause being statutorily required. While at the skating rink, Deborah loaned the car to a young friend for a short period of time for the purpose of going a short distance to visit a mutual friend. As stated above, there had been no restrictions placed on her prohibiting her from doing this. The record is clear on this point. Deborah testified:

If I needed to go to town for something, I would use the car. If I needed to go to a girl friend’s house, I would take the car. If I had to go to the skating rink, I would take the car.

In answer to the question, “Did he give you any limitation or restriction as to the use of the car,” she answered, “No, sir.” She was further asked, “Did your father tell you specifically that you could not let anybody else use the car?” She answered, “No, sir.” She was asked, “Did your father ever make any objection to the manner you were using the car?” She answered, “No, sir.”

In the case of U. S. F. & G. Co. v. Stafford, supra, the Court, in discussing the application of the omnibus clause in regard to the young driver, stated:

Other facts showing that Wayne Plunkett had full authority over the use of the automobile are that he made, and was helped by his mother to make, the payments on the ear at Keller Motor Company; that he used the car to go to school and that it was left on the school parking lot all day; that he used it at night for “dates;” and that he would use the ear to go back and forth to work and keep it with him while he was at work. .

The only difference here is that Deborah’s father, being the man that he.was, purchased the car and gave it to his former wife and daughter without any strings attached whatever and without any instructions on its use. In Travelers Indemnity Company v. Watkins, supra, cited in the majority opinion, the Court said:

It has been stated that the word “permission” has a negative rather than affirmative implication — that is, a permitted act may be one not specifically prohibited as contrasted to an act affirmatively and specifically authorized. The permission need not be express but may be implied. In a statutory omnibus clause, the word “permission,” it has been held, should not be limited in meaning to merely legal permission, but should be construed for the benefit of persons injured.

In my humble opinion, the statutorily required omnibus clause was enacted clearly for the purpose, among other situations, to require coverage for persons injured by automobiles similar to that in this case. How can it be said that Deborah, having full unrestricted use and permission to use the car and using it for a purpose known to everyone, took the car out of the “implied permission” by loaning it to a friend for a short time to visit a mutual friend while she was skating. To hold otherwise, in my opinion, is making a farce out of the statutorily required omnibus clause. If it does not cover situations as set out in this case, the Legislature should do as the regulatory bodies already have done — that is, ignore the rights of the traveling public and repeal the statute. I would reverse and remand the cause.

LEE, J., joins in this dissent.

      . The record does not affirmatively show that James Creely was driving the automobile in which Vaughn was injured. However, a copy of the declaration in the case of Robert W. Vaughn v. James Creely was introduced for identification. The declaration affirmatively alleged that Creely was operating the automobile in which Vaughn was riding when he was injured. The suggestion for writ of garnishment was tried on the theory that Creely was in fact the driver of the automobile. No objection was made by the garnishee that Creely was not driving the automobile, because, in our opinion, the garnishee knew Creely was driving the automobile.

      . See 5 A.L.R.2d 600-660 (1949) for annotation on the subject of coverage of automobile liability insurance policies under the “omnibus clause.”

      . See 7 Am.Jur.2d, Automobile Insurance, Sections 120, 121 and 122 for statements of the strict or conversion rule, the liberal rule and the moderate or minor deviation rule.


source: Caselaw Access Project

author: SUGG, Justice, COFER, Justice,

license: Public Domain

text:
    Frances WARNER v. BOARD OF TRUSTEES OF the JACKSON MUNICIPAL SEPARATE SCHOOL DISTRICT.
    No. 50237.
    Supreme Court of Mississippi.
    May 31, 1978.

      Cupit & Maxey, Danny E. Cupit, Jackson, for appellant.
    Brunini, Grantham, Grower & Hewes, Richard W. Dortch, W. David Watkins, Jackson, for appellee.
   SUGG, Justice,

for the Court:

This appeal is from a decree of the Chancery Court of the First Judicial District of Hinds County affirming the action of the Board of Trustees of the Jackson Municipal Separate School District approving the recommendation of the Principal of the Marshall Elementary School that Mrs. Warner not be reemployed as a teacher for the 1976-77 school year. The primary question for decision is whether Mrs. Warner was given timely notice of her principal’s recommendation not to reemploy her under the Public School Fair Dismissal Act. Miss.Gen.Laws Ch. 577 (1974).

Mrs. Warner’s principal determined that he would not recommend her for reemployment as a teacher for the ensuing school year in the latter part of February, 1976. The superintendent notified Mrs. Warner of the decision by letter dated March 22, 1976 which was received by Mrs. Warner on March 25,1976. Mrs. Warner contends that the notice should have been sent to her within seven days of the date the principal determined not to recommend her for reemployment. The pertinent parts of Chapter 577 are as follows:

Section 3. Persons Entitled to Notice. Any employee of a school district who has been employed by such district during the entirety of the preceding school year, shall be given notice within seven (7) days of the decision that he not be offered a contract for reemployment for the succeeding school term when:
(c) by April 1 the principal does not recommend to the superintendent the reemployment of a teacher, or by May 1 the principal does recommend the reemployment of a teacher and the superintendent does not approve the recommendation for the teacher’s reemployment, or by May 1 the principal and superintendent both recommend the reemployment of a teacher and the board of trustees of the district declines the recommendation.
Section 4. Notice. Except in the case of nonreemployment of the superintendent, notice shall be tendered by the superintendent to any employee within seven (7) days of the date when the recommendation to reemploy would have been made under the terms of Section 37-9-15 and 37-9-17 and amendments thereto.

Section 37-9-17 Mississippi Code Annotated (1972) provides in part as follows:

On or before April 1st of each year, the principal of each school shall recommend to the superintendent of the school district the teachers to be employed for the school involved except those teachers who have been previously employed and who have a contract valid for the ensuing scholastic year.

The provisions of the Public School Fair Dismissal Act [Miss.Gen.Laws Ch. 577 (1974)] are conflicting because the first paragraph of Section 3 provides that notice shall be given within seven days of the decision that a teacher not be offered a contract for reemployment for the succeeding school term. On the other hand, Section 4 provides that notice shall be given by the superintendent within seven days of the date when the recommendation to reemploy would have been made under the terms of section 37-9-17 Mississippi Code Annotated (1972) which is April 1st. Section 3 of the Act does not designate the person who shall give the notice, while Section 4 provides that the superintendent shall give the notice when a teacher is involved.

We are thus faced with the problem of construing conflicting provisions in the same statute. The rule for construing conflicting provisions in the same statute was stated in Coker v. Wilkinson, 142 Miss. 1, 106 So. 886 (1926) as follows:

[W]here there are two conflicting provisions in the same statute, the last expression of the Legislature must prevail over the former. Undoubtedly that principle of statutory construction is sound. (142 Miss. at 16, 106 So. at 887).

Coker was cited with approval in Mississippi State Highway Commission v. Rives, 271 So.2d 725 (Miss.1972) (Petition for Rehearing denied 1973). However, the rule does not apply in all cases. In Roseberry v. Norsworthy, 135 Miss. 845, 100 So. 514 (1924) we stated:

The rule invoked by the appellant that, as between conflicting sections of the same act, the last in order of arrangement will control has no application, where the intention and purpose of the whole act is clear and unmistakable, and to accept the literal wording of the latter provision would destroy a legislative policy, nullify the main provisions of the act, and entirely defeat the manifest intention and purpose of the lawmakers. (135 Miss. at 860, 100 So. at 517).

We hold the rule applies in this case and that Section 4 of the Public School Fair Dismissal Act controls over Section 3. Notice that a teacher will not be offered a contract for reemployment for the succeeding school term must be given by the superintendent within seven days after April 1st, which is April 8. This construction does not nullify the primary purpose of the Act which is to give an employee notice that he will not be reemployed for the ensuing year.

There are three additional reasons supporting this construction of the statute:

(1) Section 4 fixes a definite and certain date for notice, whereas if we should hold that Section 3 is controlling, the date of notice would not be definite and certain and would depend upon the time a principal originally determined not to reemploy a teacher. When two dates are possible in a statute requiring notice, one being definite and certain and the other being indefinite and uncertain, the definite date should be chosen so that the notice requirements will apply consistently to all persons entitled to notice.

(2) It is possible that a principal might initially determine not to recommend a teacher for reemployment, but by April 1st change his mind and recommend that such teacher be reemployed. In such case if Section 3 controlled notice would have been given to a teacher of nonreemployment, when in fact the determination was not final.

(3) The Court may look to later acts of the legislature to ascertain the legislative intent and in arriving at the correct meaning of a statute. Crosby v. Barr, 198 So.2d 571 (Miss.1967). Our construction reflects the legislative intent because the notice provision of the Public School Fair Dismissal Act was amended by Miss.Gen.Laws Ch. 489 (1977) [Section 37-9-105 Mississippi Code Annotated (1977 Supp.)] to delete Section 3 of the original Act leaving the notice provisions as follows:

In the event that a determination is made by a school district not to offer an employee a renewal contract for a successive year, written notice of nonrenewal shall be given within seven (7) days of the date when the recommendation to reemploy would have been made under the provisions of sections 37-9-15 and 37-9-17, and amendments thereto, but in any event no later than the following:
(c) If the employee is a teacher or other professional educator, the school district shall give notice of nonreemployment on or before April 8.

For the foregoing reasons we are of the opinion that notice was given within the time required by the Public School Fair Dismissal Act.

The other assignments of error have been considered and we find they do not merit discussion.

AFFIRMED.

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

BOWLING and COFER, JJ., dissent.

COFER, Justice,

dissenting:

Failing to agree with the majority opinion I, with deference, dissent.

There underlie the considerations of due process of law and fundamental fairness to which appellant is entitled, but this dissent addresses itself to my conviction that timely statutory notice of her non-reemployment was not afforded her.

The pertinent parts of Mississippi Code 1972 Annotated, sections 37-9-105, 37-9-107 and 37-9-17 (Supp.1974), are found in the majority opinion.

The entire statute is to be read together, in order to arrive at its meaning. Kellum v. Johnson, 237 Miss. 580, 115 So.2d 147 (1959); Wilson v. Yazoo and M. V. R. R. Co., 192 Miss. 424, 6 So.2d 313 (1942); Johnson, State Revenue Agent v. Reeves & Co., 112 Miss. 227, 72 So. 925 (1916); 73 Am.Jur., 2d, Statutes § 250, p. 423.

Coker v. Wilkinson, 142 Miss. 1, 106 So. 886 (1926), quoted in the majority opinion, says as to the rule of statutory construction that the last expression in a statute prevails over an earlier conflicting provision:

There is another principle for the construction of statutes as well settled as that, which is that a statute must receive such a construction that it will, if possible, make all of its parts harmonize with each other and render them consistent with its purpose and scope. The entire statute must be so read that the “whole may have a harmonious and consistent operation.” The object is to get at the design and scope of the statute. Only that construction will be justified which evidently carried out the purpose of the law. The entire legislation on the subject must be considered, and when the entire legislation on the subject consists of one statute, any conflicting provisions in the statute must, if reasonably possible, be reconciled so as to make the statute a consistent workable scheme. Adams v. Y. & M. V. RR. Co., 75 Miss. 275, 22 So. 824. (142 Miss. at 16, 106 So. at 887, 888).

In Mississippi Public Service Commission v. City of Jackson, 328 So.2d 656 (Miss.1976), it is said that “all parts of a statute are to be given effect if possible,” and we said in Davis v. Miller, 202 Miss. 880, 890, 32 So.2d 871, 873 (1947), that “[cjourts are not at liberty to ascribe to any statute a construction which would make a part of it, in some cases, meaningless and ineffective if another reasonable construction can be found which would give it meaning and effectiveness in all cases within its purview. 50 Am.Jr., Statutes, § 358, pp. 361-4.”

With this collection of authorities, it is my opinion that the entire statute has meaning and that there need be no divergence of views thereon.

Section 37-9-105 provides that a person in appellant’s category “shall be given notice within seven (7) days of the decision that he not be offered a contract for reemployment for the succeeding school term . .” (Emphasis added). Any problem as to who is to give that notice is resolved by Section 37-9-107, “Except in the case of non-reemployment of the superintendent, notice shall be tendered by the superintendent to any employee within seven (7) days . . . .” (Emphasis added).

Both sections 37-9-105 and 37-9-107 fix the deadline for nomination of teachers. The first of these provides that such notice shall be of the decision not to reemploy “when (c) by April 1 the principal does not recommend . the reemployment of a teacher . . and the latter makes the timeliness of the notice to be determined by Section 37-9-17, “On or before April 1st of each year, the principal . . shall recommend the teachers to be employed . . . (Emphasis added).

Under Section 37-9-17, the district is powerless to employ a teacher without the recommendation of him or her by the principal of the school involved. This authority of the principal was recognized by this Court in Dampier v. Lawrence County School District, 344 So.2d 130 (Miss.1977).

In the instant case, the principal, in February of the year, recommended teachers for the next year, but went further than to remain silent on what he would do as to appellant, testifying that he “made recommendations for those to be retained and Mrs. Warner not to be." (Emphasis added). Repeating that no official of the school district could go over the principal’s head, or around him, the determination not to retain her and that she not be retained, was articulated to the superintendent, “and Mrs. Warner not to be.”

Thus, the ultimate decision was made as to her status with the school, and the notice provision statute (Section 37-9-105) was brought into operation, and, within seven days of the principal’s decision communicated to the superintendent, the superintendent had the duty to notify her of the principal’s decision (Section 37-9-107).

It is to be emphasized that section 37-9-17 provides that the principal shall recommend teachers for his school on or before April 1. Had he refrained from any action as to appellant, then April 1 would have determined the beginning date of the seven days within which notice was required to be given. Here the decision was made before and not on April 1, and the February date when the decision was made must clearly be held to be the date for commencement of the notice period, and if that is not done, Section 37-9-105 is judicially amended by rendering of no effect the requirement that the notice be given within seven days of the decision.

In Jackson v. Board of Education of Oktibbeha County, 349 So.2d 550 (Miss.1977), we said:

It is manifest that one purpose of the Act is to give those teachers who are not to be reemployed for the ensuing year early notice of that fact so that they might seek employment elsewhere. .
(349 So.2d at 553).

It is my view that notice by the superintendent mailed on March 22 of the principal’s decision made and communicated to him before the end of February was not made with statutory timeliness, and I would reverse and remand the case for fixing of compensation to her for the school year involved.

BOWLING, J., joins in this dissent.


author: SUGG, Justice,

text:
    LAMAR COUNTY SCHOOL BOARD OF LAMAR COUNTY, Mississippi v. Ola SAUL.
    No. 50428.
    Supreme Court of Mississippi.
    May 31, 1978.

      William L. Ducker, Purvis, for appellant.
    Rex K. Jones, Hattiesburg, for appellee.
    Before SMITH, SUGG and BROOM, JJ.
   SUGG, Justice,

for the Court:

The Lamar County School Board appealed from a final decree of the Chancery Court of Lamar County setting aside an order of the School Board which rescinded its previous order reemploying appellee as principal of the Baxterville Attendance Center over the objection of the Superintendent of Education of Lamar County. We affirm.

Appellee was notified that she would not be recommended for reemployment as principal of the Baxterville Attendance Center. Following this notification, appellee requested a hearing before the school board. The request was granted and a hearing was held on March 10, 1977. Following presentation of evidence at the March 10 hearing the school board recessed until March 16 and at that time voted to reemploy appellee over the objection of the superintendent by a vote of three to two. Appellee was notified in writing on March 17 of the action of the board. On March 21 the board met with four members present and by a vote of three to one rescinded its action of March 16. Appellee was notified in writing on March 22 of the latter action of the board.

On appeal to the chancery court, the chancellor held that the provisions of the Public School Fair Dismissal Act requiring the board to notify the employee in writing of the decision of the board within seven days after the date of completion of the hearing was mandatory. He further held that the rescission order of March 21 was arbitrary and capricious because it violated the mandatory notice required by the act. He set aside the order of March 21 and reinstated the March 16 order.

The only evidence heard by the board was at its March 10 hearing. This was a completed hearing and the board was required to notify appellee within seven days of the date of the completion of the hearing. The board complied, but later rescinded its order more than seven days following the March 10 hearing. We affirm the chancellor’s holding that the notice requirement of the statute is mandatory and the board was without power to rescind its order more than seven days following the March 10 hearing.

The school board assigns as error the following:

1. The constitutional question — That the Public School Fair Dismissal Act violates the due process clause of the 14th Amendment of the U.S. Constitution and Section 24 of Article 3 of the Mississippi Constitution with regards to the right of recommendation of the County Superintendent of Education in Section 37-9-15 of the Mississippi Code of 1972, annotated, as amended.
2. That the act is unconstitutionally vague and without merit because it contradicts another statute.

With respect to the claim of due process violation, it is sufficient to note that the statute affords ample opportunity to the superintendent to present evidence in support of his decision not to reemploy a principal. In our view this satisfies due process to the superintendent.

The board further argues that the due process of the superintendent is violated because section 37-9-15 Mississippi Code Annotated (1972) provides for the superintendent of each school district to recommend the person who shall be employed as principal. The board argues that, under our holding in Lott v. State ex rel. Kelly, 239 Miss. 97, 121 So.2d 402 (1960), the county superintendent has the exclusive right to recommend the principal; therefore, the school board is without authority to appoint any principal who has not been recommended by the county superintendent. Lott, was decided before the Public School Fair Dismissal Act was adopted in 1974. The Public School Fair Dismissal Act provides that an employee of a school district who has been employed by the district during the entirety of the preceding school year may request a public hearing before the school board; the employee shall receive a fair and impartial hearing before the board within fourteen days from the date of receipt of the notice from the employee requesting the hearing; and, following the hearing, the board shall notify the employee in writing of its decision within seven days after the date of completion of the hearing.

The Public School Fair Dismissal Act did not specifically amend section 37-9-15 Mississippi Code Annotated (1972) but authorized the school board to render a decision following the hearing. In our view this authorizes the school board to override the recommendation of the superintendent not to reemploy a principal; otherwise, a hearing would be an exercise in futility. We do not perceive that the conflict between section 37-9-15 and the Public School Fair Dismissal Act rises to constitutional dimensions, but the conflicting statutes should be construed in accordance with the following rules of statutory construction:

(1) In construing statutes, all statutes in pari materia are taken into consideration, and the legislative intent deduced from a consideration as a whole. Jackson County v. Worth, 127 Miss. 813, 90 So. 588 (1921). Statutes in pari materia, although apparently conflicting should, if possible, be construed in harmony with each other to give effect to each. Greaves v. Hinds County, 166 Miss. 89, 145 So. 900 (1933). See cases annotated in Mississippi Digest, Statutes, &wkey;223.2(1).

(2) Repeal by implication is not favored but where there is an irreconcilable conflict between two statutes, the latter statute repeals the former insofar as it is in conflict. Jackson Municipal Airport Authority v. Shivers, 206 So.2d 190 (Miss.1968). Repeals by implication are not favored and are seldom permitted except on grounds of repugnancy and never when former act can stand together with new act. Ex parte Yerger, 75 U.S. 85, 8 Wall. 85, 19 L.Ed. 332 (1868). See also cases annotated in Mississippi Digest, Statutes, &wkey;158 and 159.

(3) Section 61 of the Mississippi Constitution of 1890 has no reference to amendment by implication when the amending statute is complete within itself. Hart v. Backstrom, 148 Miss. 13, 113 So. 898 (1927).

Section 37-9-15 gives the superintendent the exclusive right to recommend a principal for employment. On the other hand, the Public School Fair Dismissal Act of 1974 gives the county school board the power to conduct a hearing where a principal is not recommended for reemployment by the superintendent. This necessarily grants the board the power to reemploy a principal without the recommendation of the superintendent because a contrary holding would negate the purpose of the hearing, with the result that the hearing would serve no purpose other than giving the principal a forum in which to air his grievance with no hope of overturning the decision of the superintendent not to recommend his reemployment.

In this case the superintendent proceeded first at the hearing before the school board and introduced evidence in support of his decision not to reemploy the principal apparently under the belief that the burden of proof was on him to support his decision not to reemploy the principal. This procedure is not correct because an employee who had a contract for the preceding year, and who is not recommended for reemployment, has no further right to employment unless such employee requests a hearing before the school board and is successful in convincing the school board that he should be reemployed. Stated differently, when the determination is made not to reemploy, the burden of going forward rests with the employee. A careful consideration of the Public School Fair Dismissal Act does not reveal a legislative intent to give tenure to an employee, but the purpose of the act is to provide an employee with notice that he will not be reemployed for the succeeding year in sufficient time to enable such employee to secure employment by another school district. The overriding purpose of the act is to prevent an employee of a school district from being notified shortly before the beginning of a school term that such employee will not be offered another contract for the ensuing year. It naturally follows that the burden is on the employee to proceed in an effort to convince the school board that such employee should be reemployed over the objection of the superintendent or principal.

The school board also argues that the statute is vague and indefinite because no provision is made to enforce the order of the school board should it determine to reemploy without a recommendation from the administrator who has the duty to recommend principals, teachers, and other employees of the school district for reemployment. Mandamus would lie in such case; therefore, this argument is without merit.

AFFIRMED.

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

      . Section 6, Chapter 577 Mississippi General Laws, 1974. See section 37-9-101 Mississippi Code Annotated (Supp.1974) for entire act.

      . No law shall be revived or amended by reference to its title only, but the section or sections, as amended or revived, shall be inserted at length.

      . The Public School Fair Dismissal Act of 1974 was amended by Chapter 489. Mississippi General Laws of 1977 [section 37-9-101 Mississippi Code Annotated (Supp.1977)] to change the name of the act to School Employment Procedures Law of 1977 and expressed the legislative intent in Section 1 as follows:
      It is the intent of the Legislature to establish procedures for providing public school employees with notice of the reasons for not offering an employee a renewal of his contract, to provide an opportunity for the employees to present matters in extenuation or exculpation to enable the board to determine whether the recommendation of nonemployment is a proper employment decision and not contrary to law, and not to establish a system of tenure or require that ail decisions of nonreemployment be based upon cause with respect to employment in the school district. (Emphasis supplied).


text:
    Lennie Mae WHITE v. James C. STUBBS.
    No. 50409.
    Supreme Court of Mississippi.
    June 7, 1978.
    Charles H. Ramberg, Brandon, for appellant.
    James P. Brantley, Whitfield, for appel-lee.
   Appeal from Chancery Court, Rankin County; Osborn Guyton Idom, Chancellor.

Before PATTERSON, C. J., LEE and BOWLING, JJ., and REX GORDON, Commissioner.

AFFIRMED.


text:
    W. Fred SMITH, C. Harold Clark and Hubert M. Rivers v. The BOARD OF CIVIL SERVICE COMMISSION OF CITY OF MERIDIAN, Mississippi, et al.
    No. 50415.
    Supreme Court of Mississippi.
    June 7, 1978.
    Adams & Odom, Joe R. Odom, Walter T. Rogers, Meridian, for appellants.
   Appeal from Chancery Court, Lauderdale County; William Neville, Chancellor.

Williams, Gunn & Crenshaw, William J. Gunn, Singley, Minniece, Neville & Hamill, James T. Singley, Meridian, for appellees.

Before PATTERSON, C. J., LEE and BOWLING, JJ., and REX GORDON, Commissioner.

AFFIRMED.


text:
    CONSTRUCTION MANAGEMENT, INC. v. Jim McKAY and Charlie Rhodes, d/b/a Jim McKay Drywall Applicators.
    No. 50384.
    Supreme Court of Mississippi.
    June 7, 1978.
    Jerome L. Lohrmann, Jackson, for appellant.
    Johnston & Adams, Jerry T. Johnston, Brandon, for appellee.
   Appeal from Circuit Court, Madison' County; Rufus H. Broome, Judge.

Before SMITH, P. J., and WALKER and COFER, JJ.

AFFIRMED.


text:
    Mrs. Dorothy DORSEY v. The BOARD OF TRUSTEES OF the JACKSON MUNICIPAL SEPARATE SCHOOL DISTRICT OF JACKSON, Mississippi.
    No. 50385.
    Supreme Court of Mississippi.
    June 7, 1978.
    Cupit & Maxey, John L. Maxey, II, Jackson, for appellant.
    Brunini, Grantham, Grower & Hewes, Richard W. Dortch, W. David Watkins, Jackson, for appellee.
   Appeal from Chancery Court, Hinds County; J. C. Stennett, Chancellor.

Before SMITH, P. J., and WALKER and COFER, JJ.

AFFIRMED.


text:
    MOUND BAYOU FEDERAL CREDIT UNION v. Isaac DANIELS.
    No. 50436.
    Supreme Court of Mississippi.
    June 7, 1978.
    Morris & Coats, Thomas Morris, Cleveland, for appellant.
    W. Allen Pepper, Jr., Cleveland, for ap-pellee.
   Appeal from Circuit Court, Bolivar County; J. C. Feduccia, Judge.

Before SMITH, P. J., and WALKER and COFER, JJ.

AFFIRMED.


text:
    Ronnie REED v. STATE of Mississippi.
    No. 50531.
    Supreme Court of Mississippi.
    June 7, 1978.
    Billy J. Jordan, Philip T. Dean, Columbus, for appellant.
    A. F. Summer, Atty. Gen. by Robert D. Findley, Sp. Asst. Atty. Gen., Jackson, for appellee..
   Appeal from Circuit Court, Winston County; Clarence E. Morgan, Jr., Judge.

Before SMITH, P. J., and WALKER and COFER, JJ.

AFFIRMED.


author: JONES, Justice.

text:
    LYNNWOOD PROPERTY OWNERS ASSOCIATION, a non-profit corporation, et al. v. LANDS DESCRIBED IN COMPLAINT, Dr. Joe B. Ray, Lambert C. Mims, etc., et al.
    SC 2502.
    Supreme Court of Alabama.
    May 26, 1978.
    Fred W. Killion, Jr. and Stephen J. Flynn, Mobile, for appellants.
    Robert L. Byrd, Jr., of Cunningham, Bounds, Byrd, Yance & Crowder, Mobile, Ray G. Riley, Jr. of McFadden, Riley & Parker, Mobile, for appellee, Dr. Joe B. Ray.
    William H. Brigham, Mobile, for appel-lees, Lambert C. Mims, Gary A. Greenough, Robert B. Doyle, Jr., and The City of Mobile.
   JONES, Justice.

This appeal arises from a declaratory judgment holding that certain property in the City of Mobile was properly rezoned from residential to business use. We reverse and remand.

On January 27, 1975, Dr. Joe B. Ray, Appellee, filed an application with the Zoning Administrator of the Mobile Inspection Services Department to rezone certain land from R-1 (Single Family Residence) to B-1 (Buffer Business District) so that he could open medical offices on the premises. After conducting an investigation, the Administrator recommended that the application be denied, and sent this recommendation and the application to the Mobile Planning Commission.

The Planning Commission originally set a hearing for February 6, 1975, but this was postponed until March 6. After both sides presented evidence and arguments at the March 6 meeting, the Commission voted on the matter. With the Commission Chairman voting against approval, the vote ended in a 4-4 tie (1 member abstained). Following this disapproval of the application, the Commission advised Ray of his right to appeal. The application was not forwarded to the City Board of Commissioners at this time.

Thereafter, allegedly in contravention of its own by-laws, the Planning Commission reconsidered the application at its next monthly meeting (April 3, 1975) and voted unanimously for its approval. The motion to reconsider was made by Commissioner Greenough, who had previously voted for approval of the application. Following this second vote, the application, together with the Planning Commission’s recommendation, was forwarded to the Mobile City-Board of Commissioners which, after notice and public hearings, also voted unanimously for approval. The relief sought by the declaratory judgment action which followed was denied.

Because of our views expressed herein, Appellants’ contention that the Planning Commission and the City Board of Commissioners acted arbitrarily and illegally will not be considered. Therefore, a more complete recitation of the particular facts upon which the Commission’s vote was based is inappropriate.

Lynnwood Property Owners Association, together with the other Appellants, contend that the Planning Commission violated its own regulations and by-laws in reconsidering Ray’s application at the April 3 meeting. It asserts that the Commission thus deprived it of procedural due process of law.

Title 37, § 774, Code, provides:

For the purpose of promoting health, safety, morals or the general welfare of the community, the legislative body of incorporated cities and towns is hereby empowered to regulate and restrict . the location and use of buildings, structures and land for trade, industry, residence or other purpose.

Section 778 provides:

The legislative body of such municipality shall provide for the manner in which such regulations and restrictions and the boundaries of such districts shall be determined, established and enforced, and from time to time amended and may adopt such ordinances as may be necessary to carry into effect and make effective the provisions of this article.

Section 779 provides:

Such regulations, restrictions and boundaries, and ordinances passed under the authority of this article may from time to time be amended . . . The provisions of section 778 of this title relative to public hearings and official notices shall apply equally to all changes and amendments.

Pursuant to the above-stated Code provisions and in compliance with § 780 and § 787, the City of Mobile created the Planning Commission. By § 789, the Commission was empowered to “adopt rules for transaction of business.” Section 793 requires the affirmative votes of not less than six members of the Commission before an amendment to the zoning ordinance may be approved.

The zoning ordinance of the City of Mobile specifically provides the three methods in which any amendment to the ordinance is to be effected. Section IX, B, Amendment Procedure, provides, inter ada :

“1. By Whom Initiated. Amendments to this ordinance may be initiated by the Board of Commissioners on its own motion or by the Planning Commission; amendments may also be initiated by any person, firm or corporation by filing a written application therefor with the Inspection Services Department . . .

If an application is filed pursuant to the third type of initiatory procedure, as was done here, the Inspection Services Department shall investigate and make its recommendations to the Planning Commission. Mobile City Zoning Ordinance, VIII B, 2, and IX B, 3. Thereafter, the ordinance provides in part IV:

“The Planning Commission shall consider each application for amendment and shall approve or disapprove the application. If the application is approved, the Department shall certify the application to the Board of Commissioners for public hearing and shall notify the applicant

This procedure was used here. As stated, after the Inspection Services Department conducted its investigation and gave its recommendation, the Planning Commission conducted hearings on March 6 and disapproved the application. Therefore, it was not forwarded to the City Board of Commissioners. It is the reconsideration, which occurred on April 3, that Appellants contend is unjustified and illegal.

Mobile City Planning Commission By-laws, Section V, 3, provides:

“3. Planning Commission Review: Cases before the Commission shall be presented in summary by a designated member of the Commission or a member of its staff. Within a reasonable time the Commission shall make its decision and shall notify the applicant by mail. If the application is approved, it shall be forwarded together with supporting data to the Board of Commissioners with a recommendation for public hearing by the Board of Commissioners.
“As a matter of policy, unless the applicant can prove extenuating circumstances, an application that has been denied will not be reconsidered for a period of six months and then only if the applicant has furnished proof that there has been substantial change in circumstances surrounding the application to warrant reconsideration.

Thus, by reconsidering Ray’s application less than one month after its disapproval, and without proof of a change of circumstances, the Commission violated the above-stated by-laws. Because these by-laws were specifically authorized by the Code, they have the same force and effect as properly enacted statutes. See Tit. 37, §§ 774, 778, 779, 780, 787 and 789, Code. Furthermore, should the reconsideration be deemed an appeal, it likewise is unauthorized as appeals are to be heard twice yearly — in January and in July. Mobile City Planning By-laws, § V, 5.

It cannot be denied that the City is authorized to amend its zoning ordinance. Tit. 37, § 774, et seq., Code; Shell Oil Co. v. Edwards, 263 Ala. 4, 81 So.2d 535 (1955). See also Ball v. Jones, 272 Ala. 305, 132 So.2d 120 (1961). Such amendments, however, must comply with both State and Federal constitutional guarantees. McQuillin, 8 Municipal Corporations, §§ 25.38 and 25.58; and 101 C.J.S. Zoning § 27. See also City of Birmingham v. Monk, 185 F.2d 859 (5th Cir. 1950); and Masters v. Pruce, 290 Ala. 56, 274 So.2d 33 (1973). Moreover, a zoning ordinance or amendment must be enacted pursuant to, and in substantial conformity with, the zoning statutes or enabling act authorizing it. Alabama Alcoholic Beverage Control Board v. City of Birmingham, 253 Ala. 402, 44 So.2d 593 (1950); Johnson v. City of Huntsville, 249 Ala. 36, 29 So.2d 342 (1947); Treadway v. City of Rockford, 24 Ill.2d 488, 182 N.E.2d 219 (1962); and Smart v. Lloyd, 370 S.W.2d 245 (Tex.Civ.App.1963). See also McQuillin, supra, at §§ 25.58, 25.67, 25.67a; and Rathkopf, The Law of Zoning and Planning, §§ 4.02,10.01.

Though arising in a somewhat different context, we have previously held that a Planning Commission.

“ . . .is authorized to adopt regulations not inconsistent with the statutes. The Mountain Brook Planning Commission has adopted such regulations . and is bound by any limitations on its authority contained in the legislation authorizing it to act, as well as any restrictions contained in its own regulations." Boulder Corp. v. Vann, 345 So.2d 272, 275 (Ala.1977). (Emphasis added.)

Cases in foreign jurisdictions which have addressed this question have stated similar requirements.

“A municipal legislative body is bound to follow the regulations it has adopted, in the exercise of its delegated legislative power.
“If a zoning body is going to attempt to participate in the decision-making process as both petitioner and judge, the very least that can be expected is that it will play the game according to its own rules. This was not done here, and the failure to comply with its own published procedures was fatal to the decision . .” Miller v. City of Albuquerque, 89 N.M. 503, 554 P.2d 665, 669 (1976).

See also McArthur v. Zabka, 177 Col. 337, 494 P.2d 89 (1972), and County Commissioners of Anne Arundel County v. Ward, 186 Md. 330, 46 A.2d 684 (1946). See, generally, Harnett v. Board of Zoning, Subdivision and Building Appeals, 350 F.Supp. 1159 (D.V.I., 1972).

Ray contends that, because the Commission itself could initiate the amendment this particular by-law need not be comported with. See Mobile City Zoning Ordinance, IX B, 1. This, however, begs the question because here Ray initiated the amendment by filing his application with the Zoning Administrator of the Inspection Services Department. Thus, the procedure utilized must be that applicable to this set of circumstances. Otherwise, the Commission could ignore its own by-laws in considering every amendment applied for by individual landowners.

“The Board of County Commissioners, as an administrative body, was bound to follow the regulations it adopted, in the exercise of its delegated legislative power. . . . The fact that it might have re-zoned the area, upon due notice and after hearing, does not alter its obligation to adhere to existing regulations, or authorize it to make special exceptions in individual cases.” County Commissioners of Anne Arundel County, supra, 46 A.2d at 688-9.

Ray further argues that the subsequent action of the City Board of Commissioners ratified and, thus, cleansed the amendment of its procedural infirmities. This assertion is fallacious, however, because, in the context of this case, the invalid act cannot be made valid by ratification. County Commissioners of Anne Arundel County, supra; Miller, supra; and City of Syracuse v. Snow, 123 Misc. 568, 205 N.Y.S. 785 (1924). This is true regardless of the fact that the Planning Commission merely recommended the proposed amendment to the City’s legislative body, the Board of Commissioners.

To allow the Commission to ignore its own by-laws and regulations with impunity would foster impermissible arbitrariness by our city governments. The mandates of procedural due process of law prevent such actions. Therefore, we hold that Lynnwood was deprived of procedural due process when the Commission reviewed and reconsidered Dr. Ray’s zoning amendment application which previously had been disapproved at the preceding monthly meeting. Fairness requires that the Commission follow its own rules. The public, or at least those whose interests are affected by a zoning amendment, has the right to rely upon the Commission’s following its own ordained procedures. McArthur, supra.

By the foregoing, we are not to be understood as foreclosing the Commission’s power to amend the zoning ordinance or to reconsider previously denied applications for amendment. It has such p">wer provided it does not run afoul of the enabling act, the ordinances and regulations enacted pursuant to such act, and the constitutional requirements of due process.

The judgment of the trial Court is reversed and the cause is remanded.

REVERSED AND REMANDED.

MADDOX, SHORES and BEATTY, JJ., concur.

TORBERT, C. J., concurs in result.

      . 3 of the 9 members of the Planning Commission are also members of the City Board of Commissioners.

      . §§ 11-52-73, et seq., Code 1975.


author: TORBERT, Chief Justice.

text:
    Bonnie BROWNING v. CITY OF GADSDEN, Alabama, a Municipal Corp.
    SC 2723.
    Supreme Court of Alabama.
    May 26, 1978.
    Edward Cunningham and Hubert L. Taylor, Gadsden, for appellant.
    Howard B. Warren, Gadsden, for appel-lee.
   TORBERT, Chief Justice.

Bonnie Browning appeals from the granting of a motion to dismiss filed by the City of Gadsden in an action brought by Browning to recover for personal injuries which she sustained as the proximate consequence of alleged negligence of the city in maintaining a public driveway in a dangerous and defective condition. We reverse.

Browning was injured on February 3, 1976, when she stepped into a hole in the pavement of a driveway which runs from the entrance of Baptist Memorial Hospital to Goodyear Avenue in Gadsden, Alabama. On May 11, 1976 Browning filed suit against the hospital and three fictitious defendants, to-wit:

“. . . Defendants 1, 2, 3, it being the intention of the Plaintiff to name that entity or those entities responsible for the maintenance of the premises on which the Plaintiff was injured as set out herein, the name or names or that entity or those entities being unknown at this time but will be added by amendment when ascertained.”

Browning later learned that the property on which the accident occurred might belong to the City of Gadsden. Her complaint was then amended on February 8, 1977, substituting the city as a party defendant in place of one of the fictitious defendants.

On February 18,1977 the City of Gadsden filed a motion to dismiss Browning’s complaint under Rule 12(b)(6), Alabama Rules of Civil Procedure. However, prior to a ruling by the trial court on this motion, Browning again amended her complaint to state that notice of her claim had been filed with the City Clerk of Gadsden on February 22, 1977. The complaint was subsequently amended a third time to include a cause of action in implied contract against the City of Gadsden.

Motion to dismiss the complaint as amended was filed by the City of Gadsden on April 14,1977, based on the grounds that Browning’s action against the city was barred because she failed to present her claim to the City Clerk of Gadsden within six months from the date of injury as required by Title 37, sections 476 and 504, Code of Alabama 1940 (§§ 11-47-23, 11-47-192, Code 1975). Browning appeals from the granting of this motion and subsequent dismissal.

It is argued on appeal that non-compliance with the six months limitation for presentation of tort claims against a city found in Title 37, section 476, may not be raised as a defense by a pre-answer motion to dismiss for failure to state a claim upon which relief could be granted. We cannot agree with this contention and therefore hold that such a defense may be asserted by pre-answer motion. As the question is one of first impression for this court, the opinion will consider decisions of the court which deal with raising a statute of limitations defense by pre-answer motion.

In McGruder v. B & L Construction Company, Inc., 293 Ala. 354, 303 So.2d 103 (1974), this court found that a Rule 12(b)(6) motion to dismiss is available to attack a complaint when an affirmative defense appears on the face of the complaint. The following was quoted in that opinion from Wright & Miller, 5 Federal Practice and Procedure: Civil § 1357, p. 608:

“A complaint showing that the statute of limitations has run on the claim is the most common situation in which the affirmative defense appears on the face of the pleading. Since Rule 9(f) makes averments of time material, the inclusion of dates in the complaint indicating that the action is untimely renders it subject to dismissal for failure to state a claim

The McGruder rationale has been followed by this court in Board of School Com’rs of Mobile County v. Reynolds, 294 Ala. 21, 310 So.2d 876 (1975), and Blackmon v. Chrysler Motors Corporation, Inc., 294 Ala. 426, 318 So.2d 286 (1975).

Federal courts have also held that a rule 12(b)(6) motion to dismiss is an appropriate method for raising a statute of limitations defense in cases construing Rule 12(b)(6) under the federal procedure. See, e. g., Mann v. Adams Realty Company, Inc., 556 F.2d 288 (5th Cir. 1977); White v. Padgett, 475 F.2d 79 (5th Cir. 1973); Joe E. Freund, Inc., v. Insurance Company of North America, 370 F.2d 924 (5th Cir. 1967); Herron v. Herron, 255 F.2d 589 (5th Cir. 1958). See also 2A Moore’s Federal Practice ¶ 12.10, p. 2314.

In light of these previous decisions of our court and the federal courts, we find in the present case that Browning’s alleged failure to comply with the limitation period in Title 37, section 476, was properly raised by the City of Gadsden in a motion to dismiss under Rule 12(b)(6). However, we conclude that the trial court erred in granting the City of Gadsden’s motion for the reasons hereinafter discussed.

It is the position of Browning that the amendment substituting the City of Gadsden as a party defendant in place of “'Defendant 1” complies with Rule 9(h), Alabama Rules of Civil Procedure, and relates back (under Rule 15(c), Alabama Rules of Civil Procedure) to the time of the filing of the original complaint. As the original complaint was filed within six months of the accrual of the action, the suit against the city was timely under Title 37, section 476, even though presentment of the claim did not occur within the prescribed time. Thus the resolution of this part of the appeal is bottomed on construction of the fictitious parties provisions in Rule 9(h).

The committee comments to the rule note that Rule 9(h) is in the spirit of, and closely drawn from, Title 7, section 136, Code of Alabama 1940, which deals with fictitious parties, and that the case law construction of this statute should be consulted in the application of the rule. Rule 9(h) provides the following:

“(h) Fictitious Parties. When a party is ignorant of the name of an opposing party and so alleges in his pleading, the opposing party may be designated by any name, and when his true name is discovered, the process and all pleadings and proceedings in the action may be amended by substituting the true name.”

This court has found that the principal area of operation of Title 7, section 136, and its statutory predecessors, is in emergency cases where neither the name nor the identity of the defendant is known, as where the cause of action is known but the party liable is not, and there is urgent need to get service of process upon the party against whom the plaintiff has an action, or there is need for immediate seizure of property. McKelvey-Coats Furniture Co. v. Doe, 240 Ala. 135, 198 So. 128 (1940); Roth v. Scruggs, 214 Ala. 32, 106 So. 182 (1925).

In the present case, Browning clearly knew the “name” of the City of Gadsden at the time she filed her original complaint. Therefore, the central question here is whether Rule 9(h) permits the substitution of a named party for a fictitious one and allows the amendment doing so to related back even if, at the time of the filing of the original complaint, the plaintiff knows the true name of the defendant but is ignorant of facts giving her a cause of action against such defendant.

This court recently discussed the interpretation of Rule 9(h) in Hinton v. Hobbs, 349 So.2d 28 (Ala.1977). Briefly stated, the pertinent facts of that case were that the trustee for the estate of Hinton brought suit against two named defendants and

“. .A through Z, person, firms or corporations who withheld the truth as to facts pertinent to the transactions herein described, and whose correct names are unknown but will be furnished when ascertained. . . ”

After the statute of limitations had run, the trustee amended the complaint substituting the First State Bank of Tuscaloosa as a party defendant in place of fictitious defendant A. The trustee argued that Rule 9(h) permitted the substitution and that the amendment related back to the time of the filing of the complaint even though the trustee knew the true name of the Bank at that time but lacked knowledge of facts giving him a cause of action against the Bank. This court held that the cause of action was barred by the statute of limitations because the complaint in the case showed on its face that the trustee was not ignorant of the Bank’s involvement in the transactions complained of at the time of the filing of the original complaint and the amendment therefore did not relate back.

Contrary to the result reached in Hinton v. Hobbs, supra, a review of the record in the present case fails to show factual allegations in the original complaint which would indicate that Browning had knowledge of any facts concerning the City of Gadsden’s possible involvement in her personal injury action prior to January 29, 1977. On that date, through responses given by Baptist Memorial Hospital to her interrogatories, Browning learned that the City of Gadsden might be the party responsible for the maintenance of the premises on which she was allegedly injured. Shortly thereafter, on February 8,1977, the original complaint was amended to substitute the City of Gadsden as a party defendant. Therefore, Browning was “ignorant of the name of the opposing party” within the meaning of Rule 9(h) at the time of the filing of the original complaint because Browning lacked knowledge of facts giving rise to a cause of action against the City of Gadsden. Under these facts, we hold that the amendment related back to the filing of the original complaint under Rule 15(c) and that suit was brought against the City within six months of the accrual of Browning’s cause of action.

If a suit on a claim against a city is commenced within the six month period prescribed in Title 37, section 476, it is a sufficient presentation of the claim under the statute. Fricke v. City of Guntersville, 257 Ala. 442, 59 So.2d 590 (1952); Howell v. City of Dothan, 234 Ala. 158, 174 So. 624 (1937); Town of Linden v. American-La France & Foamite Industries, 232 Ala. 167, 167 So. 548 (1936).

For the foregoing reasons, this cause is hereby reversed and remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

MADDOX, JONES and SHORES, JJ., concur.

BEATTY, J., concurs in the result.


author: BEATTY, Justice.

text:
    INTERNATIONAL TELECOMMUNICATIONS SYSTEMS, a corporation, v. STATE of Alabama et al.
    SC 2760.
    Supreme Court of Alabama.
    May 26, 1978.

      Richard H. Gill, Montgomery, for appellant.
    William J. Baxley, Atty. Gen. and Sarah M. Greenhaw, Asst. Atty. Gen., for appellee, Howard C. White, Purchasing Agent for the State of Ala.
    Henry C. Barnett, Jr., Montgomery, for appellee, General Elec. Corp.
   BEATTY, Justice.

This is an appeal by the plaintiff, International Telecommunications, Inc. (ITS), from the denial of injunctive relief which it sought against the State of Alabama, Howard White, and General Electric Corporation (GE) for an alleged violation of Code of Ala., 1975, § 41-16-20 through 32 (the Competitive Bid Law). We affirm.

The facts concern an invitation to bid on the purchase by the State of replacement radio crystals to be installed in GE radios which already were placed in State trooper automobiles. THe invitations to bid were published on December 17, 1975. These invitations specified GE parts of different serial numbers “or equal.” Both GE and ITS submitted bids, however the bid of ITS used a crystal manufactured by Anderson Electronics, Inc. Because an invitation to bid is understood as a “Request for Proposal,” the requisitioning agency (in this case the Department of Public Safety (DPS)) advises the Purchasing Agency whether or not the bid is acceptable. The specifications for this bid were written by Thomas Garrett, the chief radio engineer for DPS. When the bids were opened on February 13, 1976 ITS was represented by its general manager, D. C. Beatty, Jr. In a conversation with Garrett at that time, Beatty agreed to supply samples of the Anderson crystals for evaluation. They had conversed several months before the bid opening on the subject of the crystal purchase to be made, and Beatty had told Garrett that he would select a manufacturer of crystals that would equal or exceed all the specifications, including warranty.

Garrett wrote to Beatty on March 19, 1976 stating that he had received neither the crystal samples nor a warranty. In this letter Garrett specifically referred to the lifetime warranty on GE crystals. Beatty replied by letter on March 28,1976 that the Anderson crystals had been shipped. Garrett never received them, however.

Then on June 2, 1976 Beatty wrote to Savoy Electronics, Inc., a Fort Lauderdale, Florida firm, requesting that their appropriate samples, together with a warranty statement, be sent to the State purchasing agent, Mr. White, or to Mr. Grady Smith in the purchasing office. In this letter Beatty specifically noted that the warranty was to be equal to the normal GE warranty. But when a set of Savoy crystals was received by the State purchasing office in early June, 1976, the container in which these were shipped contained a printed notice stating that Savoy crystals were warranted for one year. Garrett proceeded to evaluate the GE and Savoy crystals. Under environmental conditions which were the same for both he sprayed each with a coolant, then compared their “drift” from their set frequencies. The Savoy crystal drifted more than the GE. Garrett also contacted engineers in and out of Alabama by telephone, attempting to learn more about the Savoy crystals, but in his inquiries he found only one, Harold Champion, a radio engineer with DPS.

Champion had experience using both types of crystals in military communications and in amateur radios. His experience with Savoy crystals had been unsatisfactory while that with GE crystals had been satisfactory. He affirmed that he had discussed the Savoy crystals with Garrett in June of 1976.

The ITS bid was not accepted, but a new bid was asked. Again ITS was the lowest bidder at the opening on August 12, 1976, on this occasion offering not the Anderson crystals as before but the Savoy crystals. On August 16, 1976 ITS was notified that its bid would not be accepted. GE was found to be the lowest responsible bidder. On August 19,1976 this suit was filed. The State of Alabama was dismissed by the trial court, leaving Howard White and GE as defendants.

In substance, the plaintiff’s suit claimed that the Savoy crystals were “equal” to the GE crystals and therefore as low bidder it should have been awarded the contract which, through the arbitrariness of the purchasing officials, was awarded to GE. In denying injunctive relief, the trial court held that the legal standards set out in White v. McDonald Ford Tractor Company, 287 Ala. 77, 248 So.2d 121 (1971), were controlling. It found:

[T]hat the evidence establishes that no State official acted arbitrarily or capriciously or with abuse of discretion in determining that Defendant, General Electric Corporation was the lowest responsible bidder. Further, the Court finds that the exercise of discretion by State officials in reaching their decision was not the result of a misconception of the law or ignorance through lack of inquiry or any violation of the law or improper influence. The Court finds that these officials acted in good faith and that each testified truthfully.

Following this order the purchase from GE took place, no stay having been obtained pending appeal. The plaintiff’s position on this appeal, however, is that it would be entitled to its profit from the sale even though injunctive relief has been rendered moot. That question, however, is controlled by whether or not the trial court was correct in denying relief to ITS in the first instance.

The Competitive Bid Law does not require that the lowest bid be accepted, and the plaintiff concedes this. What that statute requires is that:

(a) When purchases are required to be made through competitive bidding, award shall be made to the lowest responsible bidder taking into consideration the qualities of the commodities proposed to be supplied, their conformity with specifications, the purposes for which required, the terms of delivery, transportation charges and the dates of delivery; provided, that the awarding authority may at any time within five days after the bids are opened negotiate and award the contract to anyone, provided he secures a price at least five percent under the low acceptable bid. The award of such a negotiated contract shall be subject to approval by the director of finance and the governor. The awarding authority or requisitioning agency shall have the right to reject any bid if the price is deemed excessive or quality of product inferior.

The requirements thereby placed upon purchasing authorities were fully explored in White v. McDonald Ford Tractor Company, 287 Ala. 77, 248 So.2d 121 (1971). In response to an invitation to bid upon the purchase of tractors with sleeve-type engines and other specifications, McDonald was the low bidder. Its tractors possessed neither the proper engines nor other requirements, and the State officials determined that they were unsuitable. Upon McDonald’s suit for injunctive relief it was disclosed that the specifications which accompanied the invitations to bid were drawn around a particular make of tractor, but only after State officials had agreed that the particular tractor was best suited for the purpose. Such a practice was not condemned ipso facto by this Court upon review unless it could be shown that “the specifications were intentionally drawn so as to exclude others in order to purchase from a favored bidder because of some bad or improper motive, on the part of State officials, . . . ” 287 Ala. at 82, 248 So.2d at 125. This Court went on to find under the facts that bidders nevertheless still were in a position to compete upon a “level of quality” established by the specifications. (That is the situation in this case, since bidders were invited to bid on specified GE parts “or equal”). The injunction suit by McDonald resulted from the failure of its representatives to convince the State’s officials that its tractor was more compatible under those specifications.

Their action in awarding the sale to a higher conforming bidder under those circumstances was approved upon appeal:

We think that State authorities should have discretion in determining who is the lowest responsible bidder. This discretion should not be interfered with by any court unless it is exercised arbitrarily or capriciously, or unless it is based upon a misconception of the law or upon ignorance through lack of inquiry or in violation of law or is the result of improper influence. In reaching the decision which we reach in this case, we do not mean to imply that this Court or some other court would not have the authority to declare a contract as being void because the ‘specifications’ were written in such a manner that full and fair competition were excluded. It is fair to say that the legislative intent in passing the Competitive Bid Law was to get the best quality equipment at the lowest possible price, and the executive authorities should carry out this intent of the legislature. These officials must have discretion, not an unbridled discretion, but one exercised within the bounds we have tried to delineate in this opinion. The single most important requirement of the Competitive Bid Law is the good faith of the officials charged in executing the requirements of the law. A bad motive, fraud or a gross abuse of discretion will vitiate an award whether made with specifications which are quite general or very precise. The trial court found that no bad faith, improper motive, fraud or gross abuse of discretion was present here; hence, we think the court was without authority to interfere with the judgment and discretion of the State officials in determining that Booker was the ‘lowest responsible bidder’ in this instance.

The gist of the plaintiff’s argument on this appeal is that the standard of conduct for State officials set out in McDonald was violated because the decision to award the sale to GE was arbitrary and capricious. It argues that the State had no procedures for testing, no testing regulations or standards, no standard sample requirements, and no basis for determining either the reasonableness or the adequacy of tests made upon products. All of this is a frontal attack upon the procedures utilized by Garrett to test the Savoy and GE crystals. It should be recalled that Garrett, chief engineer for DPS, wrote the specifications for the crystals, and it was partially upon his conclusions that the decision to reject the ITS bid was based.

The record does disclose that Garrett did not use an environmental oven in his testing, the closest found being located in Colorado. But Garrett did make a comparison of the crystals which included the sample Savoy transmitting crystal sent to him. The number of samples sent for evaluation was a matter for the bidder to decide and the record shows that Garrett tested what he was sent. Nor did the plaintiff itself or Savoy send the purchasing agents any other test data to accompany the samples and thus provide additional proof of capability. Garrett made other inquiries which revealed that Champion had some unsatisfactory experience with Savoy crystals when compared with GE crystals. Both Garrett and Champion testified to the suitability of GE crystals when compared with Savoy crystals.

Plaintiff attacks Garrett’s abilities in making these decisions by characterizing him as a person with no engineering degree and little engineering training. Garrett testified to his correspondence school study in radio engineering from 1958 to 1963 and to his successfully passing an FCC written technical examination on the operation and maintenance of radios. He affirmed his knowledge of the operation of radio crystals and his ability to tell whether a crystal is operating properly. Mr. Garrett had been employed by DPS for seven and one-half years at the time of his deposition; before that he operated a two-way radio company. His position made him responsible for the operation and maintenance of all DPS communications equipment, radar, electronics and power generation. He held a first-class radio-telephone operator’s license issued to him in 1963 by the FCC. He supervised eleven technicians and was frequency co-or-dinator for police frequencies. In view of his training and experience it would have been improper to refuse him the right to express himself as an expert on the results of his comparisons and to accord his views with some weight. Experience and practical knowledge may qualify one to make technical judgments as readily as formal education. Blakeney v. Alabama Power Co., 222 Ala. 394, 133 So. 16 (1931); Alabama Power Co. v. Williams, 222 Ala. 75, 130 So. 788 (1930). Garrett’s expert opinion was that the GE was the most suitable and that the Savoy crystal was not equal to it.

Garrett also testified that he rejected the Savoy crystal on its warranty. He conceded that the specification did not set out the warranty on the GE parts identified, and that information outside of that part’s description would have to be consulted for warranty information. But he also testified that before the bid was let he knew that GE gave a “life of the equipment” warranty on this item as part of their warranty on the radio. In fact, White and Smith, as purchasing officials, knew that GE extended a lifetime warranty on their crystals while Savoy’s warranty extended over one year. As noted earlier, Beatty had been apprised of this by Garrett’s letter, even if Beatty had not known of it before.

Under the requirements delineated in McDonald each case must stand upon its own bottom. Admittedly, the test conducted by Garrett was not conducted in the same manner as it might have been by either Savoy, GE, or by a professional testing laboratory. Nevertheless it would be erroneous to conclude that the test furnished no basis whatever for the negative conclusion on the operational function of the Savoy crystal, or that, considering the differences in the warranties at the time, the decision disfavoring Savoy crystals was arbitrary and capricious. Upon the record we cannot classify that decision as one made “without reason,” or done “impulsively,” or made “irresponsibly,” Webster's Third New International Dictionary, 1971 (G. & G. Merriam Co.), pp. 110, 333, 1196, or through lack of inquiry. There is not, moreover, any evidence in the record which would justify an opposite conclusion to the trial court’s finding that the officials acted in good faith and testified truthfully. Because they acted in good faith from proper motives, without any showing of a gross abuse of the discretion given them by statute to identify the lowest responsible bidder, McDonald, supra, we have concluded that the order of the trial court must be, and is, affirmed.

AFFIRMED.

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


author: SHORES, Justice.

text:
    Cornelius OLIVER, etc. v. Eugene SAWYER.
    SC 2815.
    Supreme Court of Alabama.
    May 26, 1978.

      Richard F. Calhoun, of Brantley & Calhoun, Troy, Joe C. Cassady, of Cassady, Fuller & Marsh, Enterprise, for appellant.
    George E. Trawick, Ariton, for appellee.
   SHORES, Justice.

Appellant Oliver was involved in an automobile accident with Eugene, Sawyer on December 6, 1976. Sawyer filed suit against Oliver on March 2, 1977, alleging negligence and wanton misconduct. The defendant failed to file an answer or make an appearance within thirty days as required by Rule 12, ARCP. Sawyer moved for a default judgment. On April 19, 1977, the trial court granted Sawyer’s motion for default -judgment and, after hearing testimony ore tenus, awarded Sawyer $50,000 in damages.

Within thirty days of the entry of default, on May 17,1977, Oliver filed a motion to set aside the default under Rule 55(c), ARCP, and for relief from judgment under Rule 60(b), ARCP, which reads in part:

“On motion and upon such terms as are just, the court may relieve a party . from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect . . ..”

Oliver’s motion was accompanied by his affidavit stating that he was approximately eighty years of age, had no formal education, and could neither read nor write. The affidavit goes on to outline several attempts by Oliver to notify his insurer, Main Insurance Company of Chicago, Illinois, of the accident and the pending action and to have Main fulfill its contractual obligation to defend the action. Main did not respond to these attempts.

The motion was amended to include the affidavits of Richard L. Mathias, Director of Insurance for the State of Illinois, and Rex Ryan, an official of Main Insurance Company. These affidavits state, and the record shows, that the Circuit Court of Cook County, Illinois, issued an Order of Rehabilitation against Main on January 19, 1977. At that time, the Company’s records were in a state of disorganization. Its southeastern clearinghouse, Eastern Underwriters, Inc., of Atlanta, Georgia, had returned all of Main’s Alabama claim files to the home office in Chicago in late 1976. Under the Order of Rehabilitation, the Director of Insurance took possession of these files and ordered their identification and reorganization. This required some months to complete. As a consequence, no notice of this claim and the pending action was located or identified until after the default judgment. The motion alleged that these circumstances constituted excusable neglect under Rule 60(b), ARCP.

Following a hearing, Oliver’s motion was denied. A subsequent motion for new trial was also denied. He now appeals from the default judgment and the denial of his post judgment motions. We must now decide whether the trial court abused its discretion in refusing to set aside the default judgment for reasons of excusable neglect.

It is a primary principle of the Alabama Rules of Civil Procedure that the parties to an action should be afforded a prompt and fair trial upon the merits. It is because of this principle that default judgments are not favored, and, while the trial court has discretion to grant such judgments, we have frequently held that this exercise of discretion should be resolved in favor of the defaulting party where there is doubt as to the propriety of a default judgment. Knight v. Davis, 356 So.2d 156 (Ala.1978); Welch v. G. F. C. Credit Corp., 336 So.2d 1346 (Ala.Civ.App.1976). The trial court is given the same discretionary power to set aside such judgments where good cause is shown under Rule 60(b) and a meritorious defense is alleged. Holleman v. Elmwood Cemetery Corp., 295 Ala. 267, 327 So.2d 716 (1976); Taylor v. Taylor, 49 Ala.App. 306, 271 So.2d 503 (1973); Rule 55(c), ARCP.

The Federal courts have found in several cases that the neglect of an insurer, if excusable, is a sufficient ground for setting aside a default judgment against the insured. Medunic v. Ledener, 64 F.R.D. 403 (E.D.Penn.1974); Trueblood v. Grayson Shops of Tennessee, Inc., 32 F.R.D. 190 (E.D.Va.1963); Ellington v. Milne, 14 F.R.D. 241 (E.D.N.C.1953). Several states have held that it is not improper to set aside a default judgment against the insured where the insurer’s neglect consists of losing or misfiling suit papers and where prompt action is taken once the papers are located. Toon v. Pickwick Stages, Northern Div., Inc., 66 Cal.App. 450, 226 P. 628 (1924); Orange Transp. Co. v. Taylor, 71 Idaho 275, 230 P.2d 689 (1951); Spencer v. American United Cab Asso., 59 Ill.App.2d 165, 208 N.E.2d 118 (1965); Edgar v. Armored Carrier Corp., 256 Iowa 700, 128 N.W.2d 922 (1964); Hinz v. Northland Milk & Ice Cream Co., 237 Minn. 28, 53 N.W.2d 454 (1952); Abrams v. Barnes, 16 A.D.2d 936, 229 N.Y.S.2d 657 (1962); Parsons v. McCoy, 202 S.E.2d 632 (W.Va.1974).

In the instant case, we recognize the fact that Oliver, as the named defendant, is primarily responsible for his case. Knight v. Davis, supra; Thompson v. Odom, 279 Ala. 211, 184 So.2d 120 (1966). We further recognize that it was his responsibility to respond to the summons issued by the court and that one cannot discharge that responsibility by merely informing his insurer of the suit. However, because of the peculiar circumstances of this case: Oliver’s advanced age and lack of education; his efforts to inform his insurer of the claim; the unusual circumstances of his insurer’s status; we hold that it was not unreasonable for him to rely upon his insurer to perform its contractual obligation to defend him.

As for the neglect of Main in failing to file an answer or appear within the prescribed time, it is excusable only because of the unique circumstances which led to this failure on its part to respond. Main’s neglect did not arise in the normal course of its business; it was the result of an involuntary corporate reorganization for the benefit of the policyholders. In Spencer v. American United Cab Asso., supra, the insured was involved in an automobile accident with the plaintiff. His insurer was defunct and had been taken over by a liquidator. The defendant insured forwarded the summons and complaint to the liquidator, whereupon the suit papers were misplaced and no answer was filed. The trial court entered a default judgment and denied the defendant insured’s motion to set aside. In reversing the trial court, the Appellate Court of Illinois held that where a meritorious defense was shown, no prejudice was suffered by the plaintiff as a result of the delay, the defendant did not act with indifference to the plaintiff’s claim but responded diligently upon discovery of the failure of the insurer, and the default was unnecessary to secure justice between the parties, the. circumstances of the defendant’s neglect in responding merited relief from the judgment. The reasoning of that case is persuasive here.

Oliver contends, as his defense in the action, that Sawyer’s negligence was the cause of the accident. He should be allowed to try this question before a jury. There is no evidence that Sawyer will be prejudiced by an order vacating the default. The insurer acted promptly in filing a motion to set aside upon discovery of the summons and complaint. A delay of some two and one-half months between the filing of the complaint and the motion to set aside the default does not seem to be inordinate under the peculiar circumstances of this case.

For these reasons, the order of the trial court denying defendant’s motion to set aside the default judgment is reversed and the cause remanded.

REVERSED AND REMANDED.

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