text:
    John E. GREGATH et al. v. Betty Faye BATES et al.
    Civ 1429.
    Court of Civil Appeals of Alabama.
    May 24, 1978.

      Steve Skipper, Tom Drake, Cullman, for appellants.
    Marshall H. Sims, Trussville, for appel-lees.
   HOLMES, Judge.

This is a nuisance case.

The plaintiffs filed suit in the Circuit Court of Cullman County against John Gre-gath and Neal Bates, owners of their respective hog parlors. The jury found in favor of the plaintiffs and assessed damages against Gregath at $8,000 and against Bates at $1,000. The trial court thereafter enjoined the defendants from operating their hog parlors. Defendant-Gregath appeals.

At the outset, we deem it appropriate to set out the plaintiffs’ complaint, in pertinent part, as follows:’

“2. Plaintiff avers that she has owned a tract of land located in Cullman County for about twenty years on which she makes her home and livelihood. In the course of improving her property, the Plaintiff has caused to be constructed on her property a five acre pond for the purpose of watering the animals that are owned by your Plaintiff and to provide a fishing and recreational area for her family. Plaintiff further avers that the Defendants began operating hog parlors on the land adjoining the home and residence of your Plaintiff. Said hog parlors are built adjacent to a creek that flows directly into the pond owned by your Plaintiff; and further, said creek traverses a portion of your Plaintiff’s property-
“3. Plaintiff further avers that the Defendants built lagoons in order to dispose of waste matter from the hogs raised by the Defendants. The said lagoons were improperly constructed, resulting in a leak or leaks and an overflow, causing seepage from the lagoons to flow into the creek that traverses the Plaintiff’s property and feeds directly into your Plaintiff’s pond, rendering the water in the creek and pond unsafe for consumption by your Plaintiff’s animals, and further, said seepage runs onto and across the property owned by your Plaintiff, causing the grass, foliage and trees to die as a result of the poisonous condition of the seepage. Your Plaintiff further avers that the Defendants have caused dead hogs to be left on the premises, some of which have been thrown into the lagoons, resulting in additional contamination of the water, creating strong, obnoxious and sickening odors, and creating a health hazard to your Plaintiff and her family.
“4. Your Plaintiff further avers that her home has been made unlivable as a result of the construction of the hog parlors and the lagoons by the Defendants on the property adjoining your Plaintiff’s home, due to the dead animals, the obnoxious odors and fumes, and the flies and insects caused by the Defendants’ hog parlors and lagoons. Said conditions have caused your Plaintiff and her family to be sick; their nervous systems have been shattered; they have been denied the peaceful enjoyment of their property and home and the value of the Plaintiff’s property has been greatly depreciated as a result of the obnoxious conditions created by the Defendants’ hog parlors and lagoons. Your Plaintiff has suffered physically and mentally all as a result of the Defendants’ improper operation and maintenance of the said hog parlors and lagoons.
“5. Your Plaintiff further avers that she is threatened with irreparable injury and destruction of her business of farming and raising animals; and further, has suffered material loss of income and value of property as a result of the Defendants’ negligence in the construction and maintenance of the hog parlors and lagoons; and further, has repeatedly requested the Defendants to cease and desist from the improper operation of the said hog parlors and lagoons, but to no avail.
“6. The Plaintiff claims of the Defendants the sum of $25,000.00 damages as a result of the injuries and the loss of value of her property due to the Defendants’ improper construction and maintenance of said hog parlors and lagoons.
“7. Plaintiff further avers that there now exists an actual judicial controversy between her and the Defendants due to the obnoxious and sickening odors and damages to her property as a result of the Defendants’ construction, operation and maintenance of the said hog parlors and lagoons; and further, there is no action presently pending in which the rights of the parties herein can be tested or litigated, and Plaintiff avers that she has no adequate remedy at law.
“Plaintiff further prays that this Honorable Court will set a date for hearing and upon said final hearing, issue a Writ of Injunction ordering the Defendants to cease and desist and to stop the infringement, injuries and destruction of your Plaintiff’s property and health. Plaintiff further prays that a decree be entered granting the sum of $25,000.00 as damages. . . . ”

As noted above, the jury found in favor of the plaintiffs and assessed damages against the defendants. The trial court, furthermore, enjoined the defendants from operating these hog parlors. The defendant-Gregath appeals urging reversal on several aspects.

The pertinent issues, as we perceive them, are as follows: 1. Did the trial court in refusing to admit certain testimony during the course of the trial? 2. Was expert testimony properly admitted? 3. Did the trial court err in refusing to admit testimony concerning conviction of a crime to impeach a witness? 4. Did the trial court err in awarding both damages and injunc-tive relief? Put another way, did the plaintiffs have to elect between remedies? 5. Did the court err to reversal in its jury charge relating to mental suffering?

At this point we note there is sufficient evidence in the record to support a finding of a nuisance within the purview of Baldwin v. McClendon, 292 Ala. 43, 288 So.2d 761 (1974). Suffice it to say, there was testimony to indicate numerous occasions in which dead hogs were left in the open to decompose. The defendant had built lagoons to dispose of waste matter coming from the hog parlor. There was evidence to show, however, leakage or seepage from these lagoons into a creek and pond situated on the plaintiffs’ land. The record is replete with testimony concerning strong obnoxious, and sickening odors, along with the presence of flies coming onto plaintiffs’ property. While there is testimony offered by the defendant to the contrary, we cannot say the finding of a nuisance is against the great weight of the evidence as contended by the appellant.

I

Defendant-appellant submits the trial court erred in refusing to admit certain testimony during the trial. Specifically, defendant argues that one of his witnesses was not allowed to give his opinion as to the value of plaintiffs’ real property. Furthermore, defendant claims a denial of his right to fully cross-examine witnesses.

The general rule in Alabama is that an owner of real property may testify to the value of such property without other qualifications. This rule is premised on the basis that the fact of ownership renders the owner competent to testify to such value. See State v. Hastie, Ala., 333 So.2d 795 (1976).

However, this general rule does not extend the ability of the witness to testify as to the value of another person’s property absent a showing of expert qualifications. The witness in the present case did not qualify as an expert witness and thus, due to the above, could not testify as to the value of plaintiff’s realty, as the court below rightfully held.

As to the scope and extent of cross-examination, we would note that such rests in the sound discretion of the trial court. See State v. Hargrove, 282 Ala. 13, 208 So.2d 444 (1968). Prejudicial error must be shown in order to obtain a reversal for gross abuse of discretion in regard to the scope and extent of cross-examination. See Moon v. Nolen, 294 Ala. 454, 318 So.2d 690 (1975).

Our careful review of the record reveals no gross abuse of discretion by the trial court requiring reversal.

II

The defendant alleges improper expert testimony was admitted by the trial court over objection by the defendant.

As a preliminary proposition, whether or not an expert witness is shown to be qualified is addressed to the discretion of the trial court. This ruling will not be reversed unless it clearly appears that it was prejudicially erroneous and worked an injury to the appellant’s cause. See Hewett v. McGaster, 272 Ala. 498, 133 So.2d 189 (1961).

We find no merit in defendant’s assignment of error concerning expert testimony. The record reveals qualifications by this witness, a real estate appraiser, which would justify the trial court accepting him as an expert witness. Furthermore, the questions propounded and answered by this witness were not improperly admitted in that they were either premised upon hypothetical situations, based on facts already in evidence, or upon the witness’s firsthand knowledge. See Gamble, McElroys Alabama Evidence § 130.01 [3rd Ed.].

III

The defendant alleges as error the trial court’s refusal to admit testimony which attempted to impeach a witness. Specifically, the defendant was attempting to impeach the testimony of one of the plaintiffs by showing a conviction for a crime involving moral turpitude, i. e., conspiracy to commit gambling.

The record reveals the plaintiff responded to the defendant’s questions and those propounded by the court by stating he didn’t know if he had been convicted of that particular offense. Defendant attempted to produce a “rap sheet” which supposedly showed the charge the plaintiff was convicted of. The trial court ruled that this was not the best evidence of such a conviction. We agree.

When a witness denies that he has been convicted of the crime, it becomes incumbent upon the impeaching party to prove the conviction. This can be done by introducing the original court record of the conviction or a certified or sworn copy. The prior conviction cannot be proven by the offering of oral testimony by the impeaching party. See Headley v. State, 51 Ala.App. 148, 283 So.2d 458 (1973).

IV

The defendant contends the trial court erred in awarding injunctive relief to the plaintiffs along with the damages found by the jury. Defendant further argues that the plaintiffs must elect between remedies. Such is not the case.

The law in Alabama is settled in that an injunction in a nuisance case is a proper remedy to restrain a repeated or continuing trespass when the remedy at law is inadequate because of the nature of the injury or because of a multiplicity of actions necessary to obtain relief. Furthermore, the damages sustained and proven are recoverable. See Howell v. City of Dothan, 234 Ala. 158, 174 So. 624 (1937). See also Baldwin v. McClendon, supra.

As noted above, the conditions and effects arising from the defendant’s hog parlor have been of a continuing and repeated nature. Attempts to remedy the situation have been without success. In view of this, we cannot say the court erred in awarding injunctive relief along with damages that were proven.

V

Defendant alleges error in the trial judge’s charge to the jury concerning mental anguish. Specifically, defendant contends the following is contrary to Alabama law.

“Here, Ladies and Gentlemen, the Plaintiff has alleged personal injury and mental anguish. And, I charge you that in this State there is no fixed monetary standard to compensate for physical pain and mental anguish. This element of damage is left to your good sound judgment and discretion as to what amount you would reasonably and fairly compensate the Plaintiffs for such physical pain and mental anguish as you may find from the evidence the Plaintiffs did suffer. If you are reasonably satisfied from the evidence the Plaintiff has undergone or will undergo pain and suffering, or rather has undergone pain and suffering and mental anguish as a proximate result of the matter complained of in the complaint, you should award a sum which would reasonably and fairly compensate them for such pain and suffering and mental anguish.”

This charge was duly and properly excepted to by the appellant.

As a general rule, the law will not permit the recovery of damages for mental distress where the tort results in mere injury to property. However, where there has been a physical injury to a person, under circumstances warranting the recovery of compensatory damages therefor, mental suffering, which is a natural incident thereto, furnishes one of the elements of recoverable damages. See B. F. Goodrich Co. v. Hughes, 239 Ala. 373, 194 So. 842 (1940).

As noted above in the complaint, the plaintiffs claim to have suffered physically and mentally as a result of the defendant’s hog parlor. However, a careful review of the record fails to disclose any proof of a physical injury suffered by the plaintiffs so as to allow recovery of damages for mental suffering or anguish.

The court in Alabama Power Co. v. Stringfellow, 228 Ala. 422, 153 So. 629 (1934), held that a loss of sleep is not an element of damages arising from a nuisance but is a circumstance or factor going to the nature and extent of the activity and whether it constituted a nuisance. In the present case, the fact of offensive odors and flies are factors leading to a determination of a nuisance and are not elements of damages in the form of mental pain and suffering.

Nervous reactions resulting from a tort, which is merely an injury to property as distinguished from one to the person, are in the same category as mental suffering. Unless the tort is committed under circumstances of insult or contumely, such reactions are not to be considered as proper elements of damages. See B. F. Goodrich Co. v. Hughes, supra.

In any event, mental suffering alone, when not accompanied by malice, insult, or inhumanity or a physical injury, is not an element of damages for a nuisance. Where the tort results in mere injury to property, mental distress, or suffering is not recoverable. See B. F. Goodrich Co. v. Hughes, supra; 66 C.J.S. Nuisances § 174; McCormick on Damages § 127.

In view of the above, the trial court erred in instructing the jury as to mental suffering. Error in an instruction to a jury is ground for reversal, unless it affirmatively appears that the instruction was not prejudicial. See Sibley v. Adams, 56 Ala.App. 572, 324 So.2d 287, cert. denied 295 Ala. 121, 324 So.2d 291 (1975). It is clear that in this instance, we cannot say the instructions to the jury were without prejudice and we must reverse.

There being no other pertinent issues for review in this case, that part of the judgment relating to damages is reversed and remanded. The trial court’s issuance of injunctive relief is due to be and is affirmed.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

WRIGHT, P. J., and BRADLEY, J., concur.


source: Caselaw Access Project

author: BRADLEY, Judge.

license: Public Domain

text:
    STATE DEPARTMENT OF INDUSTRIAL RELATIONS and William Dudley v. MONTGOMERY BAPTIST HOSPITAL, INC.
    Civ. 1436.
    Court of Civil Appeals of Alabama.
    May 24, 1978.
    Frank D. Marsh, Asst. Gen. Counsel, State of Alabama, Dept, of Industrial Reía-tions, Legal Div., George Cocoris, Gen. Counsel, Montgomery, for appellants.
    Charles M. Crook of Smith, Bowman, Thagard, Crook & Culpepper, Montgomery, for appellee.
   BRADLEY, Judge.

This appeal results from an order by the Circuit Court of Montgomery County holding that William Dudley was not entitled to receive benefits under the Alabama Unemployment Compensation Act. From the circuit court’s order Dudley and the State Department of Industrial Relations have filed this appeal.

The dispute which culminated in our consideration of this matter began in July of 1975 when the appellant (William Dudley) filed a claim for unemployment compensation. The Montgomery unemployment compensation agency denied Dudley’s claim on the grounds that Dudley had voluntarily left his employment without good cause.

Upon learning of the agency’s action, Dudley requested a hearing before an appeals referee. And following a hearing held in October of 1975, the referee found that Dudley had not voluntarily left his employment.

Dudley’s former employer, appellee (Montgomery Baptist Hospital) then appealed the referee’s decision to the board of appeals. The board of appeals affirmed the decision of the referee without opinion on October 8,1976 and thereafter Baptist Hospital filed an appeal with the Montgomery County Circuit Court.

Following a hearing on the merits, the circuit court concluded that the board of appeals was in error and should be reversed. The circuit court also denied Dudley’s claim for unemployment compensation.

On appeal, Baptist Hospital urges that we give great weight to the judgment of the trial court. We are cognizant of the rule that in instances where a case is tried by a court without a jury, the judgment of the court has the effect of a jury verdict and will not be disturbed on review by the appellate courts of this state unless the judgment is not supported by the evidence or is clearly in error. However, we are of the opinion that the lower court erroneously construed the law as applied to the facts before it. Thus, the rule relied on by Baptist Hospital is inapplicable to the present case. Greene v. Department of Industrial Relations, 38 Ala.App. 199, 83 So.2d 360, cert. den. 263 Ala. 564, 83 So.2d 364 (1955).

The decision of the circuit court to deny Dudley’s claim for unemployment compensation was apparently premised on two grounds and the validity of these grounds provides the issues before us on this appeal. Briefly stated, Dudley’s claim for unemployment compensation was rejected because (1) the court did not deem him an “employee” under Title 25, chapter 4, section 7, Code of Alabama 1975 (formerly Title 26, section 184, Code of Alabama 1940); and (2) the court found that Dudley had voluntarily left his employment at Baptist Hospital. Title 25, chapter 4, section 78(2), Code of Alabama 1975 (formerly Title 26, section 214 subd. B, Code of Alabama 1940). However, we believe that the circuit court erred in refusing to affirm the board of appeals’ decision recognizing the validity of Dudley’s claim for unemployment compensation and therefore reverse and remand this case.

Baptist Hospital contends on appeal that Dudley was not an “employee” within the provisions of Title 25, chapter 4, section 7, Code of Alabama 1975. We disagree.

Upon graduation from the School of Pharmacy at Auburn University, Dudley was employed as a pharmacy intern by Baptist Hospital. Such an internship is required by state law in order to become a licensed pharmacist. Title 34, chapter 23, section 1(19), Code of Alabama 1975 (formerly Title 46, section 257(a2)(s), Code of Alabama 1940 [Supp.1973]). At the time Dudley began work at Baptist Hospital he had already been employed as an extern with the hospital for three months and therefore only nine months of his internship remained to be completed. Dudley knew that his employment with Baptist Hospital would terminate at the end of this nine month period.

During the period of his employment as a pharmacy intern Dudley was carried on the hospital’s regular payroll just as other hospital employees were. In addition, he was listed as an employee on the quarterly unemployment compensation tax returns which Baptist Hospital filed with the Alabama Department of Industrial Relations. Moreover, he performed various tasks for the hospital in his capacity as a pharmacy intern and members of the hospital staff supervised most of his activities. Finally, he received taxable wages as compensation for his labors at the hospital.

Despite the existence of these facts, Baptist Hospital asserts that its relationship with Dudley was that of teacher-student and that the compensation Dudley received was merely a stipend paid to him while he served as a pharmacy intern. However, the record does not support these assertions. While it is true that Dudley’s immediate supervisor denominated the hospital’s relationship with Dudley as “teacher-student” and called the wages which Dudley received a “stipend,” the use of such terminology to describe the relationship which existed between Dudley and Baptist Hospital appears to have been an afterthought and was at variance with the hospital’s own records indicating that Dudley was an employee of Baptist Hospital. Moreover, the mere labeling of a relationship in one manner or another is not controlling on an employment compensation board of appeals or a court. Instead, these bodies may look beyond terminology and labels in order to determine whether the actual relationship between the parties is that of an employer-employee. In the instant case we conclude that William Dudley was an employee of Montgomery Baptist Hospital.

Title 25, chapter 4, section 7, Code of Alabama 1975 defines an “employee” for purposes of the Alabama Unemployment Compensation Act as, “any individual employed by an employer ... in which employment the relationship of master and servant exists between the employee and the person employing him.” And it is clear that a master-servant relationship exists where an employer has the right to select the employee, the power to discharge him, the right to direct the type of work to be done, and the authority to prescribe the means and methods by which the employee is to perform the work desired. Cookson v. Knauff, 157 Pa.Super. 401, 43 A.2d 402 (1945). Indeed, courts regard the right to exercise control over the performance of the service as predominant in an employer-employee or master-servant relationship. C. A. Wright Plumbing Co. v. Unemployment Compensation Board of Review, 6 Pa.Cmwlth. 45, 293 A.2d 126 (1972). Thus, the nature of a particular job is immaterial with respect to a claim for unemployment compensation provided the employer supervises and directs the employee and the occupation or profession performed is not exempted from benefits under the relevant unemployment compensation act. C. A. Wright Plumbing Co. v. Unemployment Compensation Board of Review, supra; Claim of Morgenstein, 274 App.Div. 866, 82 N.Y.S.2d 36 (1948). In the present case a master-servant relationship existed between Dudley and Baptist Hospital. As employer, Baptist Hospital controlled Dudley’s activities, supervised him in the performance of job-related tasks, paid him a wage and had the right to discharge him at any time. Furthermore, there is no provision in the Alabama Unemployment Compensation Act which would preclude a pharmacy intern from claiming he is an “employee.” The circuit court’s application of the law to the facts in this case was incorrect. Department of Industrial Relations v. Tomlinson, 251 Ala. 144, 36 So.2d 496 (1948). Consequently, we hold that the circuit court erred in failing to find that William Dudley was an “employee” within the meaning of Title 25, chapter 4, section 7 of the Alabama Code.

At the hearing on this matter Baptist Hospital also contended that Dudley had voluntarily left his job at the hospital and was therefore disqualified from receiving unemployment compensation benefits under the language found in Title 25, chapter 4, section 78(2), Code of Alabama 1975 which provides in part:

“An individual shall be disqualified for total or partial unemployment:
“If he has left his most recent bona fide work voluntarily without good cause connected with such work.”

The circuit court agreed with the hospital’s contention and concluded that Dudley had in fact voluntarily left his employment as a pharmacy intern. Again, however, we believe that the court erred in its conclusion.

The record reveals that Dudley and his supervisor agreed that the former’s position as a pharmacy intern would terminate at the end of nine months. This period was determined by the amount of time needed by Dudley to complete the pharmaceutical internship which he was required by statute to perform. As the nine month period drew to a close, Dudley’s supervisor met with Dudley to discuss the exact date on which the latter would be leaving the employment of Baptist Hospital. At their meeting Dudley requested an extension of his nine month period. His supervisor rejected this request on the grounds that there were no funds allocated in the hospital budget for extending an intern’s employment beyond the statutory period for pharmaceutical internship. Dudley and his supervisor then agreed on the date when Dudley’s job with Baptist Hospital would end.

We are persuaded that the aforementioned facts demonstrate that Dudley agreed to accept a position as a pharmacy intern with Baptist Hospital for a specified term and that the nature of the work compelled him to leave at the end of this term. At the conclusion of his term of employment there was no further position as a pharmacy intern at the hospital available for Dudley. In short, the job with respect to Dudley simply ceased to exist. And in view of this fact, we conclude that Dudley’s action in leaving the employ of the hospital did not constitute a voluntary leaving, but rather an involuntary termination. Churchill Downs, Inc. v. Kentucky Unemployment Insurance Comm’n., 454 S.W.2d 347 (Ky.App., 1970); Kentucky Unemployment Insurance Comm’n. v. American National Bank & Trust Co., 367 S.W.2d 260 (Ky.App., 1963); Grieco v. Levine, 41 A.D.2d 799, 341 N.Y.S.2d 646 (1973). See Reynolds Metals Co. v. Thorne, 41 Ala.App. 331, 133 So.2d 709 (1961). Accordingly, the judgment of the circuit court denying Dudley unemployment compensation benefits on the grounds that he voluntarily left his employment without good cause was in error.

The circuit court interpreted various provisions of the Alabama Unemployment Compensation Act. The consideration of those provisions involved questions of law. Department of Industrial Relations v. Tomlinson, supra. A court’s determination concerning questions of law is not entitled to any presumption of correctness on appeal. Donnelly v. Doak, Ala., 346 So.2d 414 (1977). In the present case, the circuit court reached an improper legal conclusion on the basis of the facts before it. Greene v. Department of Industrial Relations, supra. Consequently, our reversal and remand of the court’s decision with regard to the disputed issues is warranted.

REVERSED AND REMANDED.

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

      . Title 25, chapter 4, section 7, Code of Alabama 1975 states that the definition of employee is modified by the provisions of Title 25, chapter 4, section 10, Code of Alabama 1975 (formerly Title 26, section 186, Code of Alabama 1940). Section 10 indicates a number of jobs which are exempted from coverage under the Alabama Unemployment Compensation Act. However, a pharmaceutical intern is not listed as exempt from coverage under the language of section 10.

      . Kentucky Unemployment Insurance Comm’n. v. American National Bank & Trust Co. involved facts similar to the case at bar. In Kentucky Unemployment Insurance Comm’n. v. American National Bank & Trust Co. the employer bank was located in temporary quarters during the renovation of its permanent building. The bank engaged the employee as a guard at the temporary location. The bank subsequently claimed that the employee had voluntarily quit when the renovation work was completed and the need for a guard at the temporary quarters ceased. The bank’s argument was based on its contention that the employee had known from .the outset that the work would cease. The Kentucky Court of Appeals rejected that contention saving in part:
      “Thus it is our opinion . that an employee who accepts a job which he knows in advance to be temporary does not voluntarily leave when the job ceases to exist.”


author: WRIGHT, Presiding Judge.

text:
    Booker T. GRAY, Jr. v. Frankie Maye GRAY.
    Civ. 1428.
    Court of Civil Appeals of Alabama.
    May 31, 1978.

      Stephen R. Arnold of Jones, Arnold & Roden, Birmingham, for appellant.
    Harold 0. McDonald, Jr., of Baddley & McDonald, Birmingham, for appellee.
   WRIGHT, Presiding Judge.

Plaintiff filed a bill for declaratory judgment against defendant, Commercial Union Assurance Company, claiming payment under a homeowner’s policy. Damage to her property and person had been caused by her former husband on the day their divorce was granted. Defendant answered and filed a third-party complaint against the former husband. Third-party defendant was personally served with the answer, summons and third-party complaint as required by Rule 4, ARCP. Third-party defendant filed an answer which was directed to the allegations in plaintiff’s original bill for declaratory judgment.

Plaintiff amended her bill so as to state a claim directly against third-party defendant. The amendment was mailed to the attorney of record for third-party defendant.

On October 26, 1977, by consent of all parties, an order was entered dismissing with prejudice plaintiff’s complaint against defendant; defendant’s third-party complaint was dismissed and judgment was entered in favor of plaintiff against third-party defendant for $4,500. On November 17 third-party defendant moved that the judgment be set aside. This was denied and appeal was taken by third-party defendant. We affirm.

The first issue is whether a third-party defendant is entitled to service of a summons with the amendment of plaintiff’s complaint to state a direct claim against him. Such claims are contemplated by Rule 14(a), ARCP: “The plaintiff may assert any claim against the third-party defendant arising out of the transaction or occurrence that is the subject matter of the plaintiff’s claim against the third-party plaintiff . .” Failure to assert such claims has the same effect as failure to assert a compulsory counterclaim. Committee Comments, Rule 14, ARCP. The question becomes whether such claims must be served with process as in Rule 4 or whether Rule 5(b) service, permitting mailing to a party’s attorney, is applicable. See 2 Moore’s Fed. Prac. ¶ 5.06. Shannon v. Massachusetts Bonding & Ins. Co., 62 F.Supp. 532 (W.D.La.1945), the only case directly dealing with the point, holds that mailing the amendment to the third-party defendant’s attorney is sufficient where personal process had been had with the third-party complaint. This case is cited in support of the statement in 3 Moore’s Fed.Prac. ¶ 14.16[1]:

“Where the court has obtained jurisdiction over the third-party defendant, as where the third-party plaintiff has made personal service on the third-party defendant, plaintiff can serve his amended complaint on the third-party defendant in the manner provided in Rule 5(b).”

Similar reasoning is had in 6 Wright & Miller, Federal Practice & Procedure § 1457:

“[A] third-party defendant might object that plaintiff has not stated a claim upon which relief may be granted or that the court lacks personal jurisdiction over him for purposes of adjudicating plaintiff’s claim. If the court has personal jurisdiction over the third-party defendant in the third-party action, however, the latter defense, along with a challenge to service of process, will be rejected because once the court has established personal jurisdiction over a party it will retain jurisdiction over him for purposes of adjudicating related proceedings.”

On the basis of these authorities, it appears that third-party defendant cannot complain of insufficient service.

Elliott v. Burch, 293 Ala. 244, 301 So.2d 557 (1974), cited by third-party defendant, is easily distinguishable. There the court discussed the requirement under Rule 5(a) that a non-appearing defendant be served pleadings with new or additional claims against it. Here the third-party defendant did appear and in fact consented to entry of judgment against him on plaintiffs claim.

Further, it appears that third-party defendant waived objection to insufficiency of service of process. Rule 12(h)(1), ARCP, provides:

“A defense of lack of jurisdiction over the person, improper venue, insufficiency of process, or insufficiency of service of process is waived (A) if omitted from a motion in the circumstances described in subdivision (g) [consolidation of defenses in motion], or (B), if it is neither made by motion under this rule nor included in a responsive pleading or an amendment thereof permitted by Rule 15(a) to be made as a matter of course.”

See Pila v. G. R. Leasing & Rental Corp., 551 F.2d 941 (1st Cir. 1977); Davis v. Hill Eng’r, Inc., 549 F.2d 314 (5th Cir. 1977); 2A Moore’s Fed.Prac. ¶ 12.23; 5 Wright & Miller, supra, § 1391.

The amendment to the complaint was filed July 16, 1976. The suit was dismissed on plaintiff’s motion on April 18, 1977 and reinstated on the docket upon consent of all parties on July 15,1977. The consent judgment was entered October 26, 1977. The record does not disclose any motion or responsive pleading raising the issue of insufficiency of service until appeal. The motion to set aside the judgment did not contain this ground. Rule 14(a), ARCP provides that, upon plaintiff’s assertion of a claim against a third-party defendant, the latter “shall assert his defenses as provided in Rule 12.” See 6 Wright & Miller, supra, § 1457. The defense was not so raised and was waived.

Third-party defendant cites a number of cases in support of the proposition that no liability can accrue on the third-party complaint unless and until the original defendant is held liable to the original plaintiff. E. g., Glenns Falls Indem. Co. v. Atlantic Bldg. Corp., 199 F.2d 60 (4th Cir. 1952). We have no argument with this principle but observe that it is inapplicable since the judgment in the instant case is predicated not upon the third-party complaint, but upon the claim by plaintiff against third-party defendant in the amendment to the original complaint.

The final contention of third-party defendant is that the consent judgment was entered because of mistake by him or his counsel. The alleged mistakes are twofold: First, that it was mistakenly understood that plaintiff had agreed to payment of the $4,500 in installments; second, that the original complaint had named third-party defendant as a party. As to the latter, a misconception by counsel as to the contents of a filed pleading is not quite the type of mistake that will overturn a judgment. There is no evidence in the record supporting the existence of either “mistake.” No agreement regarding installments appears in the record; the docket entry merely states:

“As to the third party defendant, Booker T. Gray, Jr., on motion of plaintiff and by consent of all parties, judgment in favor of the plaintiff and against the third-party defendant, Booker T. Gray, Jr., in the amount of $4,500.00 and all costs.”

No error can thus be predicated.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


text:
    Henry C. JOHNSON and Willie Bell Johnson v. Frank T. SALTER and Mary Ellen Knowles.
    Civ. 1464.
    Court of Civil Appeals of Alabama.
    May 31, 1978.
    Rivard D. Melson, Monroeville, for appellants.
    David T-. Hyde, Jr., Evergreen, for appel-lees.
   WRIGHT, Presiding Judge.

This is an action in the nature of ejectment.

In 1968 defendants executed a mortgage on the property in question to Peoples Exchange Bank. They defaulted and foreclosure was held. Plaintiffs obtained a mortgage foreclosure deed from a sale held in 1974 pursuant to power of sale provisions in the mortgage. Plaintiffs filed suit in November 1977 seeking possession and damages.

Motion for summary judgment by plaintiffs was granted. Plaintiffs were granted possession and $860 for defendants’ unlawful use and detention of the property for 43 months at $20 per month. Defendants were awarded a set-off of $500 for improvements made on the property during the period of detention. Defendants take this appeal. We affirm.

The first issue is whether the mortgage foreclosure sale had been sufficiently advertised as required by Tit. 47, § 171, Code of Alabama (1940) (Recomp.1958). That statute provides:

“[Njotice of all sales under powers of sale contained in mortgages and deeds, of trust . . . shall be given by publication once a week for three successive weeks in some newspaper published in the county in which such land or any portion thereof is situated. . ”

Tit. 7, § 716 provides:

“When the notice is required to be given for a specified number of weeks, it must be given by consecutive weekly insertions for the number of weeks so specified; and when the notice is of a proceeding to be had or an act to be done on a specified day, if the publication be for . three weeks, the first insertion must be at least eighteen days before such day.

The foreclosure sale notice had been published in the Evergreen Courant in its issues of July 4, 11, and 18, 1974. The sale was held on July 22. Thus, excluding the date of the first insertion, the sale was held on the eighteenth day following.

The trial court correctly relied on Taxpayers & Citizens of Cleburne County v. Cleburne County, 287 Ala. 116, 248 So.2d 711 (1971) in determining that the prescribed time had elapsed and the sale was valid. In that case, the issue was compliance with Tit. 7, § 171, requiring publication of a notice at least eighteen days before a hearing on validation of obligations could be held. The first notice was published on November 26 and the hearing held on December 14, the eighteenth day thereafter, excluding November 26. The court held that this satisfied the statute, stating:

“For more than a hundred years, our decisions have declared the general rule to be that in computing the number of days specified in a statute before an event is to take place, either the first or the last day is included in the computation, except where the statute requires a specific number of entire days to intervene, in which case, both are excluded. Garner & Nevill v. Johnson, 22 Ala. 494 (1853); see also, Owen v. Slatter, 26 Ala. 547 (1855). In practice, the rule developed to exclude the first day and include the last day in the computation. Richter v. State, 156 Ala. 127, 47 So. 163 (1908); Ex parte Register, 257 Ala. 408, 60 So.2d 41 (1952).”

The court also cited Tit. 1, § 12, which provides that “Time within which any act is provided by law to be done must be computed by excluding the first day and including the last.” Seizing upon this statement, defendants attempt to distinguish this case, asserting that it deals with statutes prescribing time within which sométhing must be done rather than prescribing the minimum time which must be allowed to elapse before something can be done. It is true that there is a difference in treatment of these types of statutory requirements. Timberlake v. Grand Lodge, Knights of Pythias, 267 Ala. 40, 99 So.2d 429 (1957); Jones v. Duncan, 250 Ala. 587, 35 So.2d 345 (1948). However, those cases involved a different portion of Tit. 1, § 12, which dealt with situations where the last day of a computed period falls on a Sunday. In any event, Taxpayers & Citizens of Cleburne County v. Cleburne County clearly dealt with a statute prescribing time which must be allowed to elapse before something can be done, as does the statute in the instant case, and is thus controlling.

The second issue is whether the court erred in failing to limit plaintiffs’ damages through the application of Tit. 7, § 949, which provides:

“Persons holding possession under color of title, in good faith, are not responsible for damages or rent for more than one year before the commencement of the suit.”

The judgment assessed damages for 43 months’ detention at $20 per month. Defendants contend they had color of title because they originally had legal title. However, the foreclosure sale in 1974 effectively divested them of any color of title. Courtney v. Boykin, 356 So.2d 162 (Ala.1978); Lowrey v. Mines, 253 Ala. 556, 45 So.2d 703 (1950). See 3 Am.Jur.2d, Adverse Possession § 110.

In brief plaintiffs ask for modification of the judgment to reflect a rate of $40 rather than $20 per month for damages for detention. However, plaintiffs failed to take a cross-appeal as provided by Rule 4(a)(2), ARAP, and are thus precluded from obtaining modification of the judgment. Morley Constr. Co. v. Maryland Cas. Co., 300 U.S. 185, 57 S.Ct. 325, 81 L.Ed. 593 (1937); 9 Moore’s Fed.Prac. ¶ 204.11[1], [3].

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.

      . As the sale took place in 1974, that is the applicable statute.


author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    James Howard CLAYTON v. STATE.
    7 Div. 570.
    Court of Criminal Appeals of Alabama.
    May 30, 1978.
    Fred Ray Lybrand, of. Lybrand, Sides, Hamner & Oglesby, Anniston, for appellant.
    William J. Baxley, Atty. Gen. and Samuel J. Clenney, III, Asst. Atty. Gen., for the State.
   LEIGH M. CLARK, Retired Circuit Judge.

In a two-count indictment appellant-defendant was charged with murder in the first degree. The first count alleged that he killed Larry Robinson by driving an automobile over, upon, or against the automobile which Larry Robinson was driving; the second count charged that defendant killed Bartow Browning by operating an automobile in which Browning was a passenger in such a manner as to cause his death.

The court gave the general affirmative charge requested by defendant as to murder in the first degree, murder in the second degree and manslaughter in the first degree, but refused defendant’s requested affirmative charge as to manslaughter in the second degree. The jury found him guilty of manslaughter in the second degree and fixed his punishment at imprisonment in the county jail for one year and a fine of five hundred dollars. He was sentenced accordingly.

The only asserted basis for a reversal is that the evidence was insufficient to support the verdict. The chief contention of appellant is that there was no substantial evidence to support the essential averment of each count of the indictment that defendant was driving or operating an automobile at the time Robinson or Browning was killed.

There were no eyewitnesses to a collision between a Ford station wagon and a Chevrolet automobile at the intersection of Highway 202 and Highway 78 in Calhoun County about 2:00 P.M., October 23, 1976. The first witness to arrive at the scene after the collision testified that the Ford was in the middle of the intersection and the Chevrolet was “off the road” in a gully. Steam was coming from underneath the hood of the Ford. Defendant was in the front seat of the Ford in a leaning position with his body on the passenger’s side and his feet pointed in the direction of the driver’s side. In the back seat of the Ford was Bartow Browning. Both occupants were apparently “semi-unconscious.” Defendant was wiggling but couldn’t get up.

A call for ambulances and law enforcement officers was made soon after the arrival of the first person at the scene of the collision. Several Of them testified. One testified that she examined the contents of the Chevrolet automobile and found a man in the front seat, who did not have a regular pulse and had no blood pressure.

By several witnesses, including experts in their respective fields, it was established that Bartow Browning and Larry Robinson, the person identified by witnesses as the driver of the Chevrolet, died of injuries received at the time of the collision of the two automobiles. There were no lacerations on Browning, but numerous ribs were fractured and one of his lungs was punctured. Defendant had numerous lacerations, and his face and head were bloody at the time he was removed from the Ford and placed on a sti etcher. He also had a fracture of the left leg.

Although defendant did not take the stand on the trial, statements made by him after the collision of the two automobiles indicate that he was not conscious of his driving the Ford at the time of the collision and that either Browning or one Gus Isbell was driving it at the time.

Gus Isbell testified that he had been driving the automobile, that he and defendant and Browning had been on an extended drinking spree, but that he left the automobile a short time before the collision because defendant wished to drive the automobile and he did not want to ride with the defendant driving. At that time, defendant and Browning were the only occupants of the automobile and Browning was asleep in the back seat.

A written statement signed by defendant three days after the collision was offered in evidence without objection. It is as follows:

“Statement of Jimmie Clayton Sr. concerning accident on Sat. 23 Oct. 1976 on or about 2:05 P.M. Me and these two boys had been riding around. Bartow Browning and Gus Isabel and Gus was doing the driving because he wasn’t drinking as much as me and Bartow. Well! We rode down to a store at Choc-colocco and by Jackson Schools (near the Anniston speedway). Then we came back on Choccolocco and Bartow & I had to use the bathroom. We all three got out and Bartow got in the back. We stayed in the Choccolocco area about an hour or until 12:00 Noon and then we went back toward Bynum. We went to Morrison’s Super Value at Bynum. Gus got out at Morrison’s or a store close and got in the car with a friend. He said this friend was going to take him home. Bar-tow wanted to get something to drink and I argued against it. We had had too much already. So I lay down in the front seat and went to sleep. Bartow was in the back seat. I think Bartow must have driven the car and had a wreck. It is my opinion that Bartow Browning was driving the car when it was wrecked. I remember brakes or what sounded like brakes making a noise just at the crash. I remember seeing a red or maroon blur and from there on I’m not sure what happened. I remember someone saying to stay still until we get you out. I remember Gus Isabel getting out of the vehicle before I went to sleep. Whether he got back in or not before we wrecked I don’t know. This statement is made to Trooper Willis and Cpl. Clifton and is true and correct to the best of my knowledge.”

Any claim that Browning or Isbell was driving the automobile at the time of the collision is convincingly refuted by the testimony and by the evidence as a whole. Is-bell’s denial is alone sufficient, if believed, to show that he was not driving. In addition, his testimony is corroborated in several ways. That Browning was not driving is strongly evinced by the fact that after the collision the Ford station wagon was still upright on the highway, Browning was in the back seat without any lacerations and defendant was in the front seat of his own automobile badly lacerated about the face and head. The fact that no one else was in or about the automobile almost immediately after the collision is substantial evidence, if not conclusive proof, that no unknown party was driving the automobile.

Appellant also argues that there is no evidence of his driving an automobile in such a manner as to constitute manslaughter in the second degree of one who is killed as a result of the operation of the automobile.

“Manslaughter in the second degree occurs when neither death nor great bodily harm is intended but when the death is accidentally caused by an unlawful act, or an act strictly lawful in itself, but done in an unlawful manner, and without due caution.” Williams v. State, 83 Ala. 16, 17, 3 So. 616, 617 (1887); Williams v. State, 251 Ala. 397, 399, 39 So.2d 37 (1948); Fulghum v. State, 291 Ala. 71, 75, 277 So.2d 886 (1973). In conformity therewith manslaughter in the second degree has been repeatedly defined as “ ‘the unlawful killing of another human being, without malice and without intent to kill or to inflict the injury resulting in death, but accidentally committed by the accused while he was doing an unlawful act amounting to a misdemeanor, or accidentally committed by the accused while he was doing a lawful act, but in a grossly negligent or improper manner.’ ” Steward v. State, 55 Ala.App. 238, 314 So.2d 313, 316, cert. denied, 294 Ala. 201, 314 So.2d 317 (1975); Touchstone v. State, 42 Ala.App. 141, 155 So.2d 349 (1963); Gill v. State, 37 Ala.App. 210, 65 So.2d 821 (1953).

Driving a motor vehicle upon a public highway while intoxicated constitutes a misdemeanor, punishable at imprisonment for not more than one year, or by a fine of not less than one hundred dollars nor more than one thousand dollars, or by both such fine and imprisonment. Code of Ala. 1940, Recomp.1958, Tit. 36, § 2; Code 1975, § 32-5-170.

A person who while intoxicated drives an automobile along a public highway and runs into or against another causing his death is guilty of manslaughter in the second degree. Oliver v. State, 24 Ala.App. 292, 134 So. 892, cert. denied, 223 Ala. 167, 134 So. 894 (1931).

There was more than ample evidence to show that defendant was intoxicated at the time of the collision. There was much evidence as to the large amount of intoxicating beverage he had consumed within a few hours prior to the collision. There was expert testimony as to the ethyl alcohol content of the blood of defendant, the blood of the victim Robinson and the blood of the victim Browning. As to the blood of appellant and the blood of Browning, it contained 0.29 percent ethyl alcohol. The blood of Robinson contained no observable ethyl alcohol. According to the evidence of a person with 0.29 percent ethyl alcohol in his blood “would definitely be under the influence of intoxicating beverages, would have a staggered gait and perhaps a thick tongue.”

Perhaps the most convincing evidence that defendant was intoxicated at the time of the collision is a written statement he made three days thereafter. Exculpatory as it purportedly is and intentionally was as to appellant’s driving the automobile at the time, it is strikingly inculpatory as to his intoxicated condition and the severe state of intoxication. It is a vivid portrait of an apparently intoxicated person whether it conclusively proves intoxication or not.

Appellant also indicates doubt that the evidence was sufficient to show that his driving the automobile was the cause of the collision. Unfortunately, we do not have as good a view and comprehension of the evidence as the trial judge and jury. A large number of pictures were introduced in evidence. Drawings and maps were used as to places, persons and things. In interrogating witnesses with reference to photographic evidence and the like, there was much “speaking with the hands” or similar sign language, by questions that called for witnesses’ testimony as to whether items inquired about were “over here” or “over there,” or “on this side,” or “on that side,” et cetera. However, from the evidence, we are able to say that the automobile allegedly driven by appellant-defendant was severely damaged in front as if it collided with the other automobile at a considerable rate of speed; that the other automobile was hit on its left side; that the terrain was such that the driver of the Ford had a good opportunity to see the other automobile being striking it; that the many broken ribs of Browning, evidently caused by his hitting the back of the front seat while lying down in the back seat of the Ford, by reason of the momentum of his body, indicate that the Ford was traveling at a high rate of speed. We are unable to say that the driver of the other automobile was free from fault or. that his fault, if any, did not contribute to some extent to the collision.

The contributory negligence, if any, of either of the alleged victims of the homicide, does not constitute a defense to manslaughter. Jones v. State, 21 Ala.App. 234, 109 So. 189 (1926); Broxton v. State, 27 Ala.App. 298, 171 So. 390 (1937); Hubbard v. State, 36 Ala.App. 110, 53 So.2d 631 (1951); Sanford v. State, 38 Ala.App. 332, 83 So.2d 254 (1955).

The court correctly denied defendant’s motion to exclude the evidence and refused defendant’s requested general affirmative charge as to manslaughter in the second degree. We find no error in the record, and the judgment appealed from should be affirmed.

The foregoing opinion was prepared by Retired Circuit Judge LEIGH M. CLARK, serving as a judge of this Court under the provision of § 6.10 of the New Judicial Article (Constitutional Amendment No. 328). His opinion is hereby adopted as that of the Court. The judgment below is hereby

AFFIRMED.

All the Judges concur.


text:
    Billy Joe BAILEY v. STATE.
    7 Div. 593.
    Court of Criminal Appeals of Alabama.
    May 30, 1978.

      Kermit M. Downs, Gadsden, for appellant.
    William J. Baxley, Atty. Gen., and David W. Clark, Asst. Atty. Gen., for the State.
   JOSEPH J. MULLINS, Retired Circuit Judge.

The appellant, Billy Joe Bailey, appeared before the Circuit Court of Etowah County to answer two indictments returned by the grand jury for grand larceny and three informations filed against him by the District Attorney charging him with grand larceny, burglary in the second degree, and forgery in the second degree. Appellant entered a plea of guilty as charged to the two indictments and to the three informa-tions against him. He was duly sentenced to 5 years in the penitentiary in each case with all sentences to run concurrently. Appellant applied for probation, it was denied, and he filed notice of appeal to this Court. All 5 cases were certified to this Court in one record.

The appellant is now, and was at all times in the trial court, represented by court appointed counsel. This appeal was submitted to this Court on briefs.

In the record before us it appears that cases numbered DC-77-001385, DC-77-001438 and DC-77-001569 are all felony cases which are not punishable by capital punishment and are on informations filed by the District Attorney as provided by the Constitution Of Alabama Of 1901, Art. 1, Sec. 8, Amendment No. 37, Code of Alabama, 1975, Vol. 1, Page 508, and Code Of Alabama, 1975, §§ 15-15-20, 21, 22, 23, 26. The appellant has attempted to appeal from sentences in these cases. We hold that there is no right of appeal from the action of the trial court in such cases. The Code Of Alabama, 1975, § 15-15-26 provides for no right of appeal in such cases;

“Sec. 15-1526. No right of appeal.
After the court has heard and considered a plea of guilty by a defendant and has permitted the filing of such plea and sentenced the defendant, such defendant shall not have the right of appeal from the action of the court. (Acts 1939, No. 227, p. 367; Code 1940, T. 15, Sec. 266.)”

Accordingly the proceedings here as to Case Nos. DC-77-001385, DC-77-001438 and DC-77-001569 are due to be, and are dismissed. Rogers v. State, 44 Ala.App. 331, 208 So.2d 240; Code of Alabama, 1975, § 15-15-26.

From the record it appears that Case No. CC-77-001020, and Case No. CC-77-001021 are on indictments returned by the grand jury against the appellant charging him with grand larceny; that appellant, with his counsel, appeared before the Circuit Court for the purpose of entering a plea in each case; that appellant’s counsel stated to the court in substance that counsel had discussed the cases with the appellant, along with three other cases; that appellant understands the charges, and asked that appellant be allowed to waive the reading of the indictments and enter a plea to them. The appellant then stated to the court that he agreed with all his counsel had said, and that there was no need for the court to read the indictments to him. The court then proceeded to inform the appellant of his rights under the law. The colloquy between the court and the appellant and appellant’s counsel is set out in full in the record and contains about 12 pages.

We have examined the record and hold that the trial court before accepting appellant’s pleas of guilty, fully informed appellant of his rights under the law, and that the pleas of guilty were freely, unequivocally, intelligently, and understandingly made in open court by the appellant, attended with counsel, with full knowledge and understanding of appellant’s rights under the law and the consequences of his act. Twyman v. State, 293 Ala. 75, 300 So.2d 124; Lett v. State, Ala.Cr.App., 333 So.2d 859; Johnson v. State, Ala.Cr.App., 333 So.2d 158; Woods v. State, Ala.Cr.App., 342 So.2d 27.

We have searched the record in cases numbered CC-77-001020, and CC-77-001021 for any errors prejudicial to the appellant and have found none.

The judgments of the trial court in cases numbered CC-77-001020, and CC-77-001021 should be affirmed.

The foregoing opinion was prepared by the Honorable Joseph J. Mullins, a retired Circuit Judge, serving as a Judge of this Court under the provisions of Section 6.10 of the new Judicial Article (Constitutional Amendment No. 328, Act # 1051, 1973); his opinion is hereby adopted as that of the Court.

The proceedings in cases numbered DC-77-001385, DC-77-001438, and DC-77-001569 are dismissed.

The judgments below in cases numbered CC-77-001020, and CC-77-001021 are hereby affirmed.

All the Judges concur.


author: KARL, Justice.

text:
    In re ESTATE of Ruth L. JOHNSON, Deceased. FLAGSHIP FIRST NATIONAL BANK OF ORMOND BEACH, etc., Petitioner, v. Vera Mae MORRIS, Respondent.
    No. 52326.
    Supreme Court of Florida.
    March 16, 1978.
    Rehearing Denied June 30, 1978.
    Isham W. Adams, Daytona Beach, for petitioner.
    Charles E. Booth of Booth & Booth, Day-tona Beach, for respondent.
   KARL, Justice.

This cause is before us on petition for writ of certiorari to review the decision of the District Court of Appeal, First District, in In re: Estate of Johnson, 347 So.2d 785 (Fla. 1st DCA 1977), which conflicts with In re Lubbe’s Estate, 142 So.2d 130 (Fla. 2d DCA 1962). We have jurisdiction pursuant to Article V, Section 3(b)(3), Florida Constitution.

Ruth L. Johnson executed a will in 1968 which contained a bequest to the respondent (an uneducated black household servant of Mrs. Johnson, who had been in her employ for 28 years). The bequest gave to the respondent $10,000 conditioned on the respondent being in Mrs. Johnson’s employ at the time of Mrs. Johnson’s death. On January 17, 1973, Mrs. Johnson executed a new will revoking her 1968 will. However, the new will was executed at the home of Mrs. Johnson. The respondent, summoned from her household duties, was one of the two attesting witnesses. Respondent was not aware of the effect of her action nor was the attorney cognizant that she was a beneficiary under the will he had prepared.

Mrs. Johnson died testate on February 8, 1973, her estate being in excess of $2,500,-000. Mrs. Johnson’s “new” will was admitted to probate, but the probate court held that the bequest to the respondent was null and void by operation of Section 731.07(5), Florida Statutes (1973), which was in effect on the date the will was executed.

The respondent appealed to the District Court of Appeal, First District. On appeal, the District Court reversed. Although recognizing that the disqualifying statute, which had been eliminated in the new Florida Probate Code, effective January 1, 1976, applied in the instant case, the District Court nevertheless held for the respondent, finding:

1. the intention of the testator is most important, and here it was the plain intention of the testatrix to provide for the respondent; and

2. the strict application of Section 731.-07(5), Florida Statutes (1973), would defeat its purpose — promulgation of the testatrix’s intention.

In reversing, the District Court concluded that the bequest to the respondent fell within the savings clause of Section 731.-07(5), Florida Statutes (1973), and explicated:

“Clearly if the 1973 will ‘were not established’, Vera Mae Morris would receive the identical bequest provided in the 1968 will. She gained nothing by the 1973 will that she was not entitled to under the earlier will. In so holding, we are not unmindful of the wording in In Re Lubbe Estate, [sic] 142 So.2d 130 at page 133 (Fla. 2d DCA 1962), which construes the language of the saving clause to salvage bequests to interested witnesses ‘only to the extent that such witnesses could take by intestacy’. We respectfully disagree with the reasoning of the 2nd District Court in relating the words ‘distributed to him’ to the word ‘distributee’ and restricting the meaning of ‘distributee’ to a person entitled to the personal estate of one who has died intestate. ‘Distribution’ is made under the terms of a will as well as under the law of descent and distribution. Since the Lubbe decision the legislature has defined ‘distributee’ as ‘a person who has received estate property from a personal representative other than as a creditor or purchaser’. Section 731.-201(10) Florida Statutes (1975). Such definition - is broad enough to include a legatee under a previous valid will. We hold that such limited construction enunciated in the Lubbe decision is not applicable to the instant appeal for the reason just stated and due to the overwhelming equities in favor of the legatee as previously set forth and because of the clearly expressed intent of the testatrix that appellant be compensated for her 28 years of faithful service.”

Section 731.07(5), Florida Statutes (1973), reads:

“All devises and bequests to subscribing witnesses are void unless there are at least two other disinterested subscribing witnesses to the will. If a subscribing witness would be entitled to any share of the estate of the testator in case the will were not established, he shall take such proportion of the devise or bequest made to him in the will as does not exceed the share of the estate which would be distributed to him if the will were not established.” (Emphasis supplied.)

We agree with the holding and rationale of the instant decision of the District Court of Appeal, First District. The intent of the Legislature in promulgating the savings provision was to relate not only to intestacy but also to provisions in a prior will if the subsequent will could not be established.

Accordingly, we approve the decision of the District Court of Appeal, sub judice, overrule In re Lubbe’s Estate, supra, to the extent that it is inconsistent herewith, and discharge the writ.

It is so ordered.

OVERTON, C. J., and ADKINS and SUNDBERG, JJ., concur.

ENGLAND, J., dissents.


author: PER CURIAM.

text:
    SEABOARD COAST LINE RAILROAD COMPANY, a Virginia Corporation, Appellant, v. Willie James SMITH, Henry McKinnon, West Robinson Fruit Company, etc., and Travelers Insurance Company, Appellees. SEABOARD COAST LINE RAILROAD COMPANY, a Virginia Corporation, Appellant, v. Ben BUTLER, Jr., and Edie Maie Butler, his wife, Henry McKinnon, West Robinson Fruit Company, a Florida Corporation, and Travelers Insurance Company, Appellees.
    Nos. 51650, 51649.
    Supreme Court of Florida.
    March 30, 1978.
    As Corrected On Denial of Rehearing June 13, 1978.
    William H. Davis of Giles, Hedrick & Robinson, Orlando, for appellant.
    Janis M. Halker of Gurney, Gurney & Handley, Orlando, for appellees.
   PER CURIAM.

The primary question for decision here is the constitutionality of Section 440.11, Florida Statutes (1975), insofar as it grants immunity from suit for contribution by a third party tortfeasor to an employer under the Workmen’s Compensation Act when negligence was a proximate cause of the damages suffered by the employee. Appellant also asserts that an employer who has paid benefits to an employee under the act and whose negligence and wanton misconduct was a proximate cause of the employee’s injuries is jointly and severally liable in tort to a third party tortfeasor under Section 768.31, Florida Statutes (1975). In addition, appellant also asserts that an active tortfeasor has a right to implied indemnification for lawful damages he has paid to an injured third party from a joint tort-feasor who was guilty of willful and wanton misconduct which contributed to the injuries.

We hold that the questioned statute (Section 440.11, Florida Statutes) is constitutional, that an employer is not liable in tort to a third party tortfeasor under Section 768.31, Florida Statutes, under the circumstances argued and that an active tort-feasor does not have a right to implied indemnification for damages he has paid to an injured third party from a joint tort-feasor who was guilty of willful or wanton conduct which contributed to the injuries.

An “employer” under the clear language of the Florida Workmen’s Compensation Act is not liable to any third party tort-feasor on account of injury or death to his employees. The sole and total liability of such employer is that defined in the Act itself. Moreover, we find no constitutional infirmity because of the grant of immunity to such employer under Section 440.11, supra.

West Robinson Fruit Company, the employer, owned a bus in which its employees were being transported. The bus was involved in a collision with a train operated by Seaboard. The employees sued Seaboard as a third party tortfeasor. Seaboard filed a third party claim in the actions against West Robinson seeking contribution and implied indemnity against the driver of the bus, the employer and the insurance carrier. The basis of the claim for contribution was 768.31, Florida Statutes, (the Uniform Contribution Among Tortfeasors Act), the constitutionality of which was raised insofar as it failed to require liability in accordance with fault. It is from the ultimate order of the trial court dismissing the third party actions against the employer and holding the statutes constitutional against the challenge made, that this appeal is prosecuted.

Initially, it is pertinent to observe that there is a clear distinction between the common law right of indemnity and the present, and relatively new, remedy of contribution. This distinction is highly pertinent in the consideration of the equal protection argument of appellant. Indemnity—or the right to assert it—is founded on express or implied contract, upon the breach of some duty owed the party seeking indemnity by the underwriter or upon the character of the conduct as between the two.

Contribution was unknown to the common law. It is a statutory recognition of the common liability of multiple tort-feasors to the injured party. The statute provides for a distribution of that liability among the wrongdoers. In contrast to indemnity, contribution does not rest on the legal relationship between the tortfeasors.

The Workmen’s Compensation Act, by its express terms, replaces tort liability of the employer with strict liability for payment of the statutory benefits without regard to fault. An employer under this Act is not liable in tort to employees by virtue of the express language of the Act. Such immunity is the heart and soul of this legislation which has, over the years been of highly significant social and economic benefit to the working man, the employer and the State. And, whether the injury to the employee is caused by “gross negligence”, “wanton negligence”, “simple negligence” passive or active, or no negligence at all of the employer, is of no consequence. There is no semblance of suggestion in these statutes that the Legislature intended to make any distinction in degrees of negligence so far as the employer’s immunity is concerned and we see no reason or logic in any distinction. Section 440.11, supra, precludes an employer from being designated a person “jointly or severally liable in tort for the same injury to person or property” as used in the contribution act. This provision seems to be supported by the great weight of authority.

The key words of the contribution act are “common liability” to the employee. Such “common liability” cannot exist where the employer is immunized from liability by the Compensation Act for tort. In United Gas Pipeline Company v. Gulf Power Company, 334 So.2d 310 (Fla. 1st DCA 1976), that court observed:

“The legislature has exerted herculean efforts to provide workmen’s compensation benefits as the exclusive liability of an employer in lieu of his common law liability.” p. 313

We have heretofore said, and repeat here, that indemnity is bottomed on entirely different considerations from contribution. The latter arises only where there is a common tort liability to the injured person.

We have considered the suggestion of appellant’s counsel that we should construe these acts as he contends because the immunity theory is inconsistent with the notion of liability in accordance with fault as suggested in the Hoffman and Licenberg cases. We decline to do this simply because, in the final analysis, these statutes we have discussed here so clearly and concisely prohibit that course. We will nothing — ours is the responsibility to construe and interpret. But, as here, where the answers are found in the statutes, it is unnecessary to do more than point that out.

As to the constitutional challenge of Section 440.11, as set forth above, we adopt as ours the views expressed in Coates v. Potomac Electric Power Co., 95 F.Supp. 779 (D.D.C.1951), with reference to the Federal counterpart of our Workmen’s Compensation Act, when the Federal employer immunity was challenged as against the due process clause because the tort liability immunity precluded a third party tortfeasor from obtaining contribution from a negligent employer, as follows:

“[3,4] Enactment of the Longshoremen’s and Harbor Workers’ Compensation Act has been held a valid exercise of the constitutional authority of the Congress .
by the holding that the Gas Company is lifted from the category of joint tort-feasor by § 905, Potomac Electric is deprived of the right to contribution which it otherwise might have claimed. However, the right to contribution is not a vested right on which legislation may not impinge . . liability in tort is several not joint, however many participate in inflicting the wrong and whether they act separately or in conjunction. Tort-feasors come severally into court, however, many may be brought together, and each is bound to the injured person separately and for the full injury. .
In a case where the employer has paid compensation under the Act, a balancing of the equities does not require allowance of contribution. The Longshoremen’s Act substitutes for the employer’s common law liability for damages to an injured employee an absolute duty to pay the prescribed compensation, broadening his duty to pay compensation to include injuries for which he otherwise would not be required to respond, ... ‘To impose a noncontractual duty of contribution on the employer is pro tanto to deprive him of the immunity which the statute grants him in exchange for his absolute, though limited, liability to secure compensation to his employees.’ ...” Pages 782, 783.

We are not persuaded by appellant’s argument that an active tortfeasor has a right to indemnification for lawful damages he has paid to an injured third party from a joint tortfeasor guilty of wanton or willful misconduct which contributed to the injuries, where, as here, the third party tort-feasor was an “employer” under the Florida Workmen’s Compensation Act. We have heretofore stated that we find no basis for applying different degrees of negligence in determining liability under such circumstances. But, appellant urges, equitable principles should apply to the rule of indemnity in these cases and cite as authority Stuart v. Hertz Corporation, 302 So.2d 187 (Fla. 4th DCA 1974). This case was considered by us on certiorari granted and we rejected the equitable argument in favor of indemnification and also, in that case, dwelt at length on the difference between contribution and indemnity.

We find no error in the judicial act of the trial court in dismissing the third party claim of Seaboard against West Robinson for indemnity or contribution.

Affirmed.

OVERTON, C. J., and BOYD, ENGLAND, SUNDBERG, HATCHETT and KARL, JJ., concur.

       The following opinion and judgment by Drew, J. (Ret.), prepared prior to his death on February 9, 1978, is hereby adopted as the opinion and judgment of this Court.

      . The pertinent language of Sec. 440.11 is as follows:
      “(1) The liability of an employer prescribed in § 440.10 shall be exclusive and in place of all .other liability of such employer to any third party tortfeasor and to the employee, . on account of such injury or death,

      . The pertinent language of § 768.31 is as follows:
      “(a) Except as otherwise provided in this act, when two or more persons become jointly or severally liable in tort for the same injury to person or property, or for the same wrongful death, there is a right of contribution among them even though judgment has not been recovered against all or any of them.
      (b) The right of contribution exists only in favor of a tortfeasor who has paid more than his pro rata share of the common liability, and his total recovery is limited to the amount paid by him in excess of his pro rata share. No tortfeasor is compelled to make contribution beyond his own pro rata share of the entire liability.”

      . Mims Crane Service, Inc. v. Insley Mfg. Corp., 226 So.2d 836 (Fla. 2nd DCA 1969) (contract); Seaboard Air Line Ry. Co. v. American District Electric Protective Co., 106 Fla. 330, 143 So. 316 (1932) (duty); Winn-Dixie Stores, Inc. v. Fellows, 153 So.2d 45 (Fla. 1st DCA 1963) (active-passive negligence).

      . For a thorough analysis of the differences in indemnity and contribution, see Ianire v. University of Delaware, 255 A.2d 687 (Del.Super.1969).

      . Kamali v. Hawaiian Electric Co., Inc., 54 Hawaii 153, 504 P.2d 861 (1972); Ianire v. University of Delaware, supra footnote 4; Farren v. New Jersey Turnpike Authority, 31 N.J.Super. 356, 106 A.2d 752 (1954); Baird v. John McShain, Inc., 108 F.Supp. 553 (D.D.C.1952); Baltimore Transit Co. v. State, 183 Md. 674, 39 A.2d 858 (1944); Cacchilio v. H. Leach Machinery Company. 111 R.I. 593, 305 A.2d 541 (1973). Also see Annotation 53 A.L.R.2d 977 (1957); 156 A.L.R.2d 467 (1945).

        .Hoffman v. Jones, 280 So.2d 431 (Fla.1973); Licenberg v. Issen, 318 So.2d 386 (Fla.1975).

      . Frank M. Stuart, M.D., P.A., and Underwriters at Lloyds v. The Hertz Corporation, George Holbrook, Individually and as father and next friend and guardian ad litem of Stafford Hol-brook, a minor, 351 So.2d 703 (1977).