text:
    E. J. DUGAS, Plaintiff-Appellant, v. Dudley BROUSSARD, Defendant-Appellee.
    No. 6089.
    Court of Appeal of Louisiana. Third Circuit.
    Aug. 9, 1977.

      Edwards, Stefanski & Barousse by Larry C. Dupuis, Crowley, for plaintiff-defendant in reconvention-appellant.
    Shelton & Legendre by Byron P. Legendre, Lafayette, for defendant-plaintiff in reconvention-appellee.
    Before HOOD, DOMENGEAUX and WATSON, JJ.
   DOMENGEAUX, Judge.

E. J. Dugas sued Dudley Broussard for the balance of an alleged $4,000.00 cash' loan made to Broussard. Broussard denied the existence of the loan, and reconvened for reimbursement of the sum of $2,000.00, alleging that Dugas used coercion, harassment, and duress in obtaining the acknowl-edgement and partial payment of the “debt” in the said amount of $2,000.00. The district judge rejected Dugas’ claim and awarded Broussard his reconventional demand. Dugas has appealed. We affirm.

In October of 1967 Dudley Broussard was injured in an offshore accident. Sometime subsequent to the accident, Roy Benoit, a trucker for whom plaintiff Broussard was employed on a part time basis, advised him that Dugas could help him get an attorney. Dugas was operating a business known as Dugas Detective Agency.

Dugas did refer Broussard to an attorney, who subsequently obtained a settlement in his case for a substantial sum on April 19, 1971. A few days thereafter Broussard was hospitalized for pneumonia and asthma. While he was in the hospital on April 23, 1971, Dugas paid a visit to Broussard. Roy Benoit claimed he was present and witnessed an exchange whereby $4,000.00 was given to Broussard by Dugas and an “I.O. U.” given by Broussard to Dugas in ac-knowledgement of the “debt”.

Broussard denies he ever received $4,000.00, or that Benoit was present at the time of Dugas’ visit to him at the hospital on April 23, 1971. He testified:

Q. Was your case settled?
A. It was.
Q. Now before the settlement was made, did you have an occasion to speak again with Mr. Dugas?
A. I did.
Q. And at that time what did Mr. Dugas tell you?
A. He wanted $4,000.00 for his services.
Q. Did he tell you what services?
A. Well, I thought he was the one that had done the investigation.
Q. So what did you as a result of that?
A. Well, I give him $2,000.00. But he didn’t want me to tell my lawyers. So before he got the other two I called the attorneys and they told me that he did not do any investigation.

And later he stated:

Q. What did he tell you he would do if you didn’t pay him the $4,000.00?
A. Well, it was a threat on me or my family.
Q. Do you remember his precise words?
A. Well, he said something was going to happen.
Q. And then what did he do?
A. And I wasn’t in no shape then to have anything to do with Mr. Dugas, because he’s a dangerous man. I know he carries a gun. That’s why he got the $2,000.00.

Broussard claims the I.O.U. was extracted by threats to his family, as was his payment to Dugas of $2,000.00 in cash on April 27, 1971, only a few days after the I.O.U. was given. His claims are believable.

Canter v. Koehring, 283 So.2d 716 (La. 1973) states that reasonable evaluations of credibility should not be disturbed upon review. Here the trial judge did not believe Dugas’ story, but did believe Broussard’s version of what happened. A review of the record satisfies us that Dugas’ credibility was completely impeached. Dugas’ answers and testimony were evasive and suspicious. The judge flatly stated that he did not believe Dugas ever loaned the money, and the evidence taken as a whole justifies that conclusion. The trial judge made it very evident that plaintiff’s story was illogical, inconsistent with the facts, and unbelievable.

Our overview of the record shows that the trial judge was obviously satisfied, as we are, that plaintiff’s story was a sham and that the $4,000.00 “deal” was positioned on a fraudulent foundation. It is evident that Dugas was attempting to recover a fee (to which he was not entitled) from the ultimate money received in settlement by Broussard, and that the alleged $4,000.00 “cash” loan by Dugas to Broussard was never effectuated.

Because the judge found Dugas never loaned any money to Broussard, Broussard is entitled to a return of the $2,000.00 he was forced to pay Dugas.

For the above and foregoing reasons we affirm the judgment of the district court and costs are assessed against plaintiff-appellant.

AFFIRMED.

      . The plaintiff herein is identified in the record as the same E. J. Dugas of the cases Dugas v. Summers, 339 So.2d 934 (La.App. 4th Cir. 1976), and Gray v. Atkins, 331 So.2d 157 (La. App. 3rd Cir. 1976). His method of operations is fully described therein.

      . The same, corroborating witness for Dugas in Dugas v. Summers, supra,

      . At one stage of the proceedings, the trial judge stated for the record:
      “. . .1 think I know exactly what went on in this transaction, and if you want me to say — the evidence isn’t all in, but just so there won’t be any misunderstanding, I don’t believe you, Mr. Dugas. I don’t believe you loaned that man $4,000.00.
      You all go on with the case. I mean, I’m not going to sit up here like a bump on a log, you know.”

      . Unfortunately our only sanction in this case is to affirm the district judge. We would feel remiss, however, if we would not express our utter amazement that the plaintiff, Dugas, by his actions herein and in the two cases cited in footnote 1 has the temerity to utilize our civil courts in an attempt to seek monetary gains for his highly questionable activities. The fact that he was unsuccessful in securing judgment in Dugas v. Summers, supra, and herein, should not end the matter. The proper authorities should legally investigate this man’s activities and sanctions should be imposed if found to be due.


source: Caselaw Access Project

author: DOMENGEAUX, Judge,

license: Public Domain

text:
    MUNICIPAL CIVIL SERVICE COMMISSION, CITY OF OPELOUSAS, Plaintiff-Appellee, v. Kenneth L. MYERS, Defendant-Appellant.
    No. 6091.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 9, 1977.

      Sandoz, Sandoz & Schiff, by Leslie J. Schiff, Opelousas, for defendant-appellant.
    Richard B. Millspaugh, Opelousas, for plaintiff-appellee.
    Before HOOD, DOMENGEAUX, and WATSON, JJ.
   DOMENGEAUX, Judge,

This case arose out of the dismissal of Kenneth L. Myers (a municipal employee of the City of Opelousas) by joint order of the Opelousas Municipal Civil Service Commission (hereinafter the Commission) and the Mayor of Opelousas. Myers was dismissed for violating a regulation which requires that municipal employees live within the city limits. Myers appealed his dismissal to the Commission, and, the dismissal being affirmed after a full hearing, then took this appeal pursuant to the authority of the Louisiana Constitution of 1974, Article X, Section 12, which requires direct appeal from the Commission to the Court of Appeal. We affirm.

Kenneth Myers was classified by the City of Opelousas since 1964 as a power plant operator. Mr. Myers resided with his father within the city limits. Then, in April of 1974, he purchased some unimproved property about three miles outside of the city limits. At the time he was aware of the residency requirement and began to make inquiries with the Mayor and various city councilmen about the possibility of having the rule changed or suspended. According to Myers, he was assured that he would not be dismissed, however this was denied by all parties involved. Nevertheless, he moved onto his property early in 1975. (He had moved a house on the premises and renovated it for purposes of living in it.) He was subsequently dismissed after the Attorney General issued an opinion on August 28, 1975, (Opinion 75-1024) that the residency rule was valid. The dismissal was dated December 28, 1976, to take effect January 1, 1977. The Commission hearing was held February 16, 1977, and the decision was rendered March 4, 1977.

The Municipal Civil Service Commissions for smaller towns were established by public referendums pursuant to the Louisiana Constitution of 1921, Article XIV, Section 15, and were retained by the Louisiana Constitution of 1974 in Article X, Section 15. The power of the Commissions to make regulations having the force of law was also retained by the new Constitution.

A completely separate system called the Fire and Police Civil Service Commission was also created by the 1921 Constitution, Article XIV, Section 15.1, and retained by the 1974 Constitution, Article X, Section 16, with powers to make regulations having the force of law.

Mr. Myers argues that he has been denied the equal protection of the law under the Fourteenth Amendment of the United States Constitution and the Louisiana Constitution’s Bill of Rights, Article I, Section 3. He does not disagree with the Attorney General that the residency requirement has a “rational basis” and is thus valid. His main contention is that because firemen and policemen are not required to live within the city limits, the city has framed an irrational classification and has thusly discriminated against him. In a nutshell, he argues that some municipal employees receive unfair preferential treatment.

We find that neither the state nor the City of Opelousas has made an irrational classification. In the recent U.S. Supreme Court case Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 96 S.Ct. 2562, 49 L.Ed.2d 520 (1976), the Court said:

“This Court’s decisions give no support to the proposition that a right of governmental employment per se is fundamental. See San Antonio Independent School District v. Rodriguez, supra [411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16]; Lindsey v. Normet, 405 U.S. 56, 73, 92 S.Ct. 862, 874, 31 L.Ed.2d 36 (1972); Dandridge v. Williams, supra, 397 U.S. [471] at 485, 90 S.Ct. [1153] at 1162 [25 L.Ed.2d 491]. Accordingly, we have expressly stated that a standard less than strict scrutiny ‘has consistently been applied to state legislation restricting the availability of employment opportunities.’ Ibid.
We turn then to examine this state classification under the rational basis standard. This inquiry employs a relatively relaxed standard reflecting the Court’s awareness that the drawing of lines that create distinctions is peculiarly a legislative task and an unavoidable one. Perfection in making the necessary classifications is neither possible nor necessary. Dandridge v. Williams, supra, 397 U.S., at 485, 90 S.Ct., at 1162. Such action by a legislature is presumed to be valid.”

Earlier the U.S. Sixth Circuit Court of Appeal wrestled with a factually and legally similar case in Wardwell v. Board of Education of City School District, Cincinnati, 529 F.2d 625 (6th Cir. 1976). In that case a group of teachers who were longtime employees were exempted from a new rule requiring newly hired teachers to live within the city limits. The court then recognized the possibility of discrimination, but said:

“While we recognize that the limited applicability of the rule may be its most questionable feature, we do not believe that the residency requirement must fail because it does not apply to all teachers employed by the Cincinnati schools. The Supreme Court has pointed out that there is no constitutional requirement that regulations must cover every class to which they might be applied, see United States v. Carolene Products Co., 304 U.S. 144, 151, 58 S.Ct. 778, 82 L.Ed. 1234 (1938). It has further stated that ‘if the classification has some reasonable basis, it does not offend the constitution simply because the classification “is not made with mathematical nicety or because in practice it results in some inequality.” ’ Dandridge v. Williams, 397 U.S. 471, 485, 90 S.Ct. 1153, 1161, 25 L.Ed.2d 491 (1970). Affirmed.”

Defendant Myers also argues that there was an inordinate delay by the City in bringing the dismissal proceedings against him, and therefore the City is estopped from dismissing him under the doctrine of laches. The equitable doctrine of laches is applicable to Municipal Civil Service Commission cases. See Barnett v. Develle, 289 So.2d 129 (La.1974). The doctrine is based on the injustice that might result from the enforcement of long neglected rights.

In the instant case we do not feel that the lapse between Myers’ residential change and his ultimate dismissal was an inordinate or prejudicial delay. During that time the Commission was investigating his case, seeking advice from the Attorney General to prevent making a possibly imprudent decision, and considering a change in the rule. Various and copious correspondence between the Mayor and the Commission resulted, which caused the delay in the final termination of employment. However, this delay did not indicate a neglect on the Commission’s rights to fire Myers, but a careful and cautious exercise of them in order to protect Myers’ constitutional rights. Therefore we do not find this delay a bar to the City’s action.

For the above and foregoing reasons the holding of the Municipal Civil Service Commission of the City of Opelousas is affirmed, and costs are assessed against defendant-appellant.

AFFIRMED.


author: WATSON, Judge.

text:
    James R. ANDRUS, Plaintiff-Appellant, v. EMPLOYERS INSURANCE OF WAU-SAU et al., Defendants-Appellees.
    No. 6092.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 9, 1977.
    Drewett, Jacques & Thomas by Robert W. Thomas, Lake Charles, for plaintiff-appellant.
    Brame, Bergstedt & Brame by John E. Bergstedt, Lake Charles, Louis M. Kieffer and Ronald L. Ronzello, New Orleans, for defendants-appellees.
    Before HOOD, DOMENGEAUX and WATSON, JJ.
   WATSON, Judge.

The issue presented is whether the trial court erred in sustaining a plea of prematurity in this workmen’s compensation suit.

Plaintiff, James R. Andrus, sued his employer, Fuller-Austin Insulation Company, Inc., and its compensation insurer, Employers Insurance of Wausau, for workmen’s compensation benefits, medical expenses, penalties and attorney’s fees. An exception of prematurity was filed.

The question of prematurity centers around payment of medical expenses. It appears from the record that, although there may have been some slight delay, the weekly compensation benefits have been paid. However, while certain medical bills were paid, others, particularly those of Dr. Melton for $119 and Lake Charles Memorial Hospital for a balance of $18.40, were not paid for a period of approximately six months. The latter were not paid at the time of the original hearing in the trial court nor at the time a motion was made for new trial but had been paid when the motion was heard.

This court has held in the past that the test for prematurity in a suit for compensation benefits is not whether there are unpaid medical bills but whether the injured employee has been furnished proper medical attention. Moore v. American Motorist Insurance Company, 216 So.2d 674 (La.App. 3 Cir. 1969) writ refused 253 La. 629, 218 So.2d 902; Jack v. Fidelity & Casualty Company of New York, 306 So.2d 806 (La. App. 3 Cir. 1975).

Here, there is no showing of a failure to furnish medical attention and the suit is therefore premature.

However, medical expenses which have not been paid may be demanded in an independent action. Blanchard v. Liberty Mutual Insurance Co., 280 So.2d 592 (La.App. 3 Cir. 1973). The record here indicates that the medical expenses have now been paid, although with some delay. However, in the event that there are unpaid medical expenses,

“ . . . the judgment appealed from herein, which sustains the exception of prematurity filed by defendants and dismisses the suit, does not preclude plaintiff from maintaining another action against defendants to recover any other medical or hospital expenses incurred by plaintiff for treatment of the above injuries, which may be due by defendants and are still unpaid or unreimbursed.” Cooley v. Liberty Mut. Ins. Co., 346 So.2d 1352 at 1354 (La.App. 3 Cir. 1977).

The exception of prematurity was correctly maintained by the trial court and the judgment is affirmed.

Costs are taxed against plaintiff.

AFFIRMED.


author: HOOD, Judge.

text:
    Joyce Stewart PATE, Plaintiff-Appellant, v. William H. PATE, Defendant-Appellee.
    No. 6111.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 9, 1977.

      Holt, Wagner & Lee by Richard E. Lee, Pineville, for plaintiff-appellant.
    Polk, Foote, Randolph, Percy & Ledbetter by William H. Ledbetter, Jr., Alexandria, for defendant-appellee.
    Before HOOD, DOMENGEAUX and WATSON, JJ.
   HOOD, Judge.

William H. Pate seeks a judgment specifying the times when he can visit his minor son. The defendant-in-rule is Mrs. Joyce Stewart Pate, mother of the child. Judgment was rendered by the trial court granting specific visiting privileges to the father. Mrs. Pate appealed.

The issue presented is whether the judgment of the trial court granting visitation privileges to the father constitutes the awarding of divided custody of or a division of authority over the child.

Mr. and Mrs. Pate were married in 1964, and of that union one child was born on November 16, 1966. A judgment was rendered on November 10, 1976, decreeing a divorce between the parties, awarding custody of the child to the mother and granting reasonable visitation privileges to the father.

The instant proceeding was instituted by Mr. Pate on February 22, 1977. Judgment was rendered by the trial court on March 14, 1977, specifying primarily the dates on which Mr. Pate could visit his child during the last nine months of the year 1977. The judgment provided, in substance, that Mr. Pate could visit his child at the following times: (1) For seven days during Easter, 1977; (2) for five days during Christmas, 1977; and (3) on 15 specified weekends during the 39 week period beginning on April 1 and ending on December 31, 1977. Each of the above weekend visits is to be for a period of 48 hours, from 5:00 P.M. on a Friday, until 5:00 P.M. on the following Sunday.

The judgment also decreed that Mr. Pate should have visiting privileges during the Thanksgiving holidays, in 1978, but no times were set for that visit. In his reasons for judgment, the trial judge stated that “Prior to 1978 the court will, upon motion of either side, fix the weekend visitations and the period of time for Thanksgiving visitation, unless the parties on their own agree to the weekend and holiday visitations for the year 1978.”

Mrs. Pate contends that the visitation privileges granted by the trial court are excessive, that they are not in the best interests of the child, and that the judgment establishes dual custody of and divided authority over the child.

When the parents of the minor child are separated or divorced and the custody of the child has been awarded to one parent, the other has the right to see and visit with the child at reasonable times, unless that right has been forfeited by the parent who claims it, or unless the exercise of that privilege would injuriously affect the child. The paramount consideration in determining the specific visitation privileges which should be granted in any case is the welfare of the child. Generally, the best interest of the child is served by placing him in the custody of one parent and not alternatively in the custody of each. The award of visitation privileges, therefore, should not be extended to the point where it becomes divided custody of or a division of authority over the child. Much discretion is vested in the trial court in determining the times when and the conditions under which a parent may have access to his child, and the decision of the trial judge as to the visitation privileges will not be disturbed unless there has been an abuse of discretion. Johnson v. Johnson, 214 La. 912, 39 So.2d 340 (1949); Newson v. New- son, 176 La. 694, 146 So. 472 (1933); Vinet v. Vinet, 184 So.2d 33 (La.App. 4 Cir. 1966); Bowlin v. Bowlin, 222 So.2d 637 (La.App. 2 Cir. 1969); Spencer v. Spencer, 273 So.2d 605 (La.App. 4 Cir. 1973); Holley v. Holley, 158 So.2d 620 (La.App. 3 Cir. 1963); Ogden v. Ogden, 220 So.2d 241 (La.App. 1 Cir. 1969).

With the above rules in mind, we have concluded that the judgment rendered by the trial court in the instant suit, granting specific visitation privileges to Mr. Pate, does not constitute the awarding of divided custody of or the establishing of a division of authority over the child. The evidence convinces us that the visits authorized by that judgment will not adversely affect the welfare of the child. We hold, therefore, that the trial judge was within the bounds of his discretion in his award of visitation rights. See Vinet v. Vinet, supra; Doherty v. Mertens, 326 So.2d 405 (La.App. 3 Cir. 1976); Brown v. Brown, 245 So.2d 501 (La. App. 3 Cir. 1971); Sims v. Sims, 340 So.2d 397 (La.App. 2 Cir. 1976).

We distinguish all of the cases cited and relied on by appellant, Mrs. Pate. In Cor-mier v. Cormier, 193 La. 158, 190 So. 365 (1939), for instance, the trial court rendered judgment granting the wife a separation, awarding her the custody of the children and giving the father substantial visitation privileges. The husband appealed primarily on the ground that the trial judge erred in granting the separation to his wife instead of to him on his reconventional demand. The Supreme Court affirmed, adopting the reasons assigned by the trial court. We are unable to determine from the judgment of the reviewing court whether the visitation rights were an .issue on appeal. In Ogden v. Ogden, supra, the court of appeal reduced the father’s right to visit his children from two weekends to one weekend per month, primarily because of the 150 mile trip required for each visit and because the burden of frequent packing and travel had become an ordeal for the children. In Bow-lin v. Bowlin, supra, the reviewing court found no abuse of discretion on the part of the trial judge in allowing the father to have his children every other Saturday. And, in Holley v. Holley, supra, we reversed that part of the trial court’s judgment which rejected the father’s request for visitation rights, and held instead that he was entitled to all of the visitation privileges which he sought.

Our conclusion is that there is no error or abuse of discretion in the judgment appealed from, and that the judgment should be affirmed.

For the reasons assigned, the judgment appealed from is affirmed. The costs of this appeal are assessed to appellant, Mrs. Pate.

AFFIRMED.


text:
    Dr. O. B. CROCKER et al. v. FARMERS AND MERCHANTS BANK et al.
    No. 49443.
    Supreme Court of Mississippi.
    May 25, 1977.
    Fant, Crutcher, Moore & Spencer, L. G. Fant, Jr., William C. Spencer, Holly Springs, Armis E. Hawkins, Houston, Ottis B. Crocker, Jr., Gibson & Newlin, Donald F. Newlin, Bruce, for appellants.
    Yancy & Easley, C. R. Easley, Jr., Charles W. Cook, Bruce, Perry, Phillips, Crockett, Morrison & Herring, Rubel L. Phillips, Jackson, for appellees.
   Appeal from Chancery Court, Calhoun County; Kermit R. Cofer, Chancellor.

Before GILLESPIE, C. J., and ROBERTSON and LEE, JJ.

AFFIRMED ON DIRECT AND CROSS-APPEALS.


author: BROOM, Justice, SMITH, Presiding Justice,

text:
    Charles B. TAYLOR v. Bobbie TAYLOR.
    No. 49102.
    Supreme Court of Mississippi.
    Aug. 10, 1977.

      Cecil G. Johnson, Biloxi, for appellant.
    Sekul, Hornsby, Wallace & Teel, Thomas L. Wallace, Walter W. Teel, Biloxi, for ap-pellee.
    Before GILLESPIE, SMITH and WALKER, JJ. •
   BROOM, Justice,

for the Court:

ON PETITION FOR REHEARING

The former opinion of the Court herein handed down on April 27, 1977, is withdrawn and the following is now the opinion of the Court.

Contempt of court, and reduction of alimony, are the chief aspects of this appeal by Charles B. Taylor from a decree entered by the Harrison County Chancery Court, Second Judicial District. Taylor was held in contempt of court, and judgment was entered against him for $650 as delinquent alimony and attorney’s fees previously awarded his former wife, Bobbie Taylor. The decree reduced future alimony from $100 to $70 per month and required Mr. Taylor to give security for such payments. By cross-appeal Mrs. Taylor claims that the amount of future alimony payments should not have been reduced. We affirm in part and reverse in part.

The Taylors were divorced in 1968 and subsequently Mrs. Taylor married another man. That marriage ended in another divorce, after which the Taylors remarried each other. In 1974 Mrs. Taylor sued Taylor for separate maintenance and for support and custody of their, two children. She abandoned the separate maintenance claim and was granted a divorce upon her amended bill. The divorce decree (dated February 11, 1975) entered without any contest by Mr. Taylor directed him to pay Mrs. Taylor $200 per month for the support of their two children and awarded Mrs. Taylor their general custody. All child support payments have apparently been made and no issue of child support is before us. In addition to the child support, the court awarded Mrs. Taylor $100 per month as alimony.

There were a series of hearings culminating with the hearing at which the decree now appealed from was entered. Mrs. Taylor had petitioned the court to cite Mr. Taylor for contempt for failure to pay alimony. Mr. Taylor’s answer admitted that he had paid no part of the alimony, and by crossbill he (seeking modification of the decree) averred changes in circumstances and conditions, and that, under present circumstances, the amount of alimony, when added to the $200 child support payments, was oppressive and beyond his ability to pay.

Following a full hearing upon the issues presented by these pleadings (at which both parties testified at length), the chancellor decreed that: (1) Mr. Taylor was in civil contempt of the court for failure to pay alimony and an attorney’s fee allowed at a previous hearing; (2) Mrs. Taylor was awarded judgment against him in the amount of $650 representing delinquent alimony amounting to $300 and attorney’s fees previously allowed in the amount of $350; (3) alimony awarded in the divorce decree be reduced from $100 to $70 per month; (4) Mr. Taylor pay $250 to reimburse Bobbie Taylor for additional attorney’s fees incurred; (5) Mr. Taylor enter into bond in the amount of $420 to secure the faithful performance of the decree as to the attorney’s fees allowed and future alimony; and (6) Mr. Taylor might purge himself of contempt by faithfully performing terms of the decree and that “should the defendant fail to make the alimony payments . . . when due or should he fail to post said bond when due, the Clerk . is directed . . .’’to issue process for Taylor’s arrest and confine him in “Jail until such time as he does enter into bond or until such time as he makes said alimony payments . . ..”

Mr. Taylor presents the argument that, as contended in his crossbill which he filed in response to Mrs. Taylor’s petition to cite him for contempt, the chancellor erred in not eliminating alimony completely. Noteworthy in this regard is the fact that Mr. Taylor did not appeal from the divorce decree which awarded the alimony and it follows that the decree is res judicata of the facts which then existed. Upon such a record, we cannot hold that the award of alimony was error.

The chancellor heard testimony with reference to Mr. Taylor’s request that alimony be terminated or reduced. The rule is well established in our jurisprudence that alimony is subject to modification under certain circumstances and conditions; usually modification is permissible upon a showing of a substantial change in circumstances. Mrs. Taylor cogently argues that Kincaid v. Kincaid, 213 Miss. 451, 57 So.2d 263 (1952), is authority which should have precluded the chancellor from reducing her alimony. Kincaid requires that modification of an alimony decree should not be decreed without the petitioner “showing that he has performed it or that its performance has been wholly impossible.” Such a showing must be with particularity and not in general terms. Upon this record it cannot logically be held that Mr. Taylor’s failure to pay at least some fraction of the alimony was “wholly impossible.” Although he said he was not able to pay the alimony, in itemizing his living expenses he shows that he spends $48 per month for gasoline which was admittedly partly for pleasure. The itemization also includes monthly expenses for cigarettes, club dues, going to the movies and “one thing and another.”

It is clear that Mr. Taylor failed to prove with particularity the impossibility of his paying some part of the alimony as decreed. One cannot admittedly spend money on pleasure driving, movies, cigarettes and “one thing and another” and be heard to say that it was wholly impossible for him to comply, at least partially, with a decree ordering alimony. Therefore, reduction of monthly alimony was error because under Kincaid, supra, Mr. Taylor was not in proper posture to assert that circumstances had changed since alimony was decreed. As to the changes of circumstances relied upon by Mr. Taylor as grounds to have the decree modified regarding alimony, we note that the changes of circumstances were not clearly shown and such changes were hardly more than minor changes (even if Mr. Taylor had complied with the decree).

Accordingly, we reverse Item 3 of the decree appealed from dated May 21, 1975, which reduced alimony from $100 to $70 per month. Also, we reverse Item 6 of the decree which authorized the clerk to issue process for Mr. Taylor’s arrest and confinement should Taylor “fail to make the alimony payments . . . when due ..”' This portion of the decree was in excess of the power of the court because confinement of Taylor under such a decree without a hearing would have denied him due process of law. All other provisions of the decree are affirmed and Mr. Taylor is ordered to pay Mrs. Taylor an additional $125 (one-half that ordered below) attorney’s fee in connection with the appeal.

In conclusion we point out that trial of the cause when the divorce decree, child support, and alimony were ordered was by one of the chancellors of the district; the proceedings which led to the decree appealed from were tried by another chancellor. Difficult issues were raised and presented on conflicting evidence, but we hold that the decree appealed from should be affirmed except those portions which this opinion states are reversed.

The case was considered by a conference of the Judges en banc.

AFFIRMED IN PART AND REVERSED IN PART AND DECREE ENTERED HERE IN ACCORDANCE WITH THE FOREGOING OPINION.

PATTERSON, C. J., INZER, P. J., and ROBERTSON, SUGG, WALKER and LEE, JJ., concur.

SMITH, P. J., dissents.

BOWLING, J., took no part.

SMITH, Presiding Justice,

dissenting:

I respectfully dissent from that part of the decision which directs the continuance of alimony payments by Charles Taylor.

I cannot concur in the conclusion that Taylor should continue to pay his divorced wife alimony. He is paying, and has never sought to evade paying, the amount allowed for the support of his children. Alimony is not a punishment or should not be. Appellant is completely and finally divorced from Charles Taylor, does not live with him, and performs no services for him whatever. She is a self-supporting adult and I do not believe that public policy or any cogent reason requires that Taylor continue to be burdened with alimony payments to her under the circumstances of this case. Nor is this view affected by the fact that, as the majority points out as a justification of its decision, Taylor will have left out of his income “$48.00 for gasoline which was admittedly partly for pleasure” and also he pays for “cigarettes, club dues ($4.00 per month to Elks Club), going to movies and one thing and another.” One can hardly imagine a more austere existence or more frugal indulgence in personal “pleasures” than Taylor’s — Nothing has been more truly said than this, “Man does not live by bread alone.”


text:
    Alva E. HEMMING v. STATE of Mississippi.
    No. 49613.
    Supreme Court of Mississippi.
    Aug. 17, 1977.
    Roy Pitts, Meridian, for appellant.
    A. F. Summer, Atty. Gen., by Frankie Walton White, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Lauerdale County; Lester F. Williamson, Judge.

Before INZER, P. J., ROBERTSON and BOWLING, JJ„ and W. W. BROWN, Commissioner.

AFFIRMED.


text:
    Bobby BRINKER v. STATE of Mississippi.
    No. 50048.
    Supreme Court of Mississippi.
    Aug. 17, 1977.
    Jimmy D. Shelton, Leroy Henderson, Jr., Tupelo, for appellant.
    A. F. Summer, Atty. Gen. by Karen Gil-foy, Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Lee County; Neal Biggers, Jr., Judge.

Before PATTERSON, C. J., and WALKER and LEE, JJ.

AFFIRMED.


text:
    Mrs. Blanche FERGUSON v. The CITIZENS & SOUTHERN SERVICING COMPANY.
    No. 50053.
    Supreme Court of Mississippi.
    Aug. 17, 1977.
    M. Wyatt Collins, Ellisville, J. Robert Sullivan, Laurel, for appellant.
    Pack, Ratcliff & Thaxton, Kalford C. Ratcliff, Laurel, for appellee.
   Appeal from Circuit Court, Jones County; James D. Hester, Judge.

Before PATTERSON, C. J., and SUGG and WALKER, JJ.

AFFIRMED.


text:
    Mrs. Patricia Garrett RUTLEDGE v. Ray F. GARRETT.
    No. 49898.
    Supreme Court of Mississippi.
    Aug. 17, 1977.
    Fair & Mayo, James C. Mayo, Louisville, for appellant.
    Frank M. Deramus, Louisville, for appel-lee.
   Appeal from Chancery Court, Choctaw County; Edward C. Prisock, Chancellor.

Before PATTERSON, C. J., and SUGG and WALKER, JJ.

AFFIRMED.


text:
    Jessie Taylor "Pete” WHITE v. STATE of Mississippi.
    No. 49871.
    Supreme Court of Mississippi.
    Aug. 17, 1977.
    Edward L. Whitten, Sr., Hernando, for appellant.
    A. F. Summer, Atty. Gen. by Catherine W. Underwood, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Grenada County; Clarence E. Morgan, Jr., Judge.

Before PATTERSON, C. J., and WALKER and LEE, JJ.

REVERSED AND REMANDED.

INZER and SMITH, P. JJ., and ROBERTSON, SUGG, BROOM and BOWLING, JJ., concur.


text:
    In re VALIDATION OF $80,000.00 GENERAL OBLIGATION AIRPORT BONDS, SERIES 1976 COVINGTON COUNTY, Mississippi. Robert McPHAIL v. BOARD OF SUPERVISORS OF COVINGTON COUNTY, Mississippi.
    No. 50174.
    Supreme Court of Mississippi.
    Aug. 24, 1977.
   Appeal from Chancery Court, Covington County; J. W. Walker, Chancellor.

Cupit & Maxey, John L. Maxey, II, Jackson, for appellant.

John K. Keyes, Collins, William A. Bacon, State Bond Atty., Bacon, Smith & Jernigan, Jackson, Robert B. Henderson, Natchez, for appellee.

Before INZER, P. J., and ROBERTSON and BOWLING, JJ.

AFFIRMED.


text:
    MELODY MOBILE HOMES, INC. v. Charles W. McMULLAN et al.
    No. 49592.
    Supreme Court of Mississippi.
    Aug. 24, 1977.
    Gipson, Gipson & Williamson, Champ C. Gipson, Meridian, for appellant.
    Mr. and Mrs. Charles W. McMullan, pro se.
   Appeal from Chancery Court, Lauderdale County; Howard R. Pigford, Chancellor.

Before SMITH, P. J., and BROOM and LEE, JJ.

AFFIRMED.


text:
    Melvin PATTON v. Forrest H. DANIEL.
    No. 49603.
    Supreme Court of Mississippi.
    Aug. 24, 1977.
    Eaves & Eaves, John Arthur Eaves, Jackson, for appellant.
    McLaurin, Nicols & Kelly, John C. McLaurin, Brandon, for appellee.
   Appeal from Circuit Court, Rankin County; Rufus H. Broome, Judge.

Before SMITH, P. J., and BROOM and LEE, JJ.

AFFIRMED.


text:
    James Edward NAPIER v. STATE of Mississippi.
    No. 49914.
    Supreme Court of Mississippi.
    Aug. 24, 1977.
    Fledell Chain, Collins, for appellant.
    A. F. Summer, Atty. Gen. by Wayne Snuggs, Special Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Covington County; George B. Grubbs, Judge.

Before PATTERSON, C. J., and SUGG and WALKER, JJ.

AFFIRMED.


text:
    Mark McNATT V. STATE of Mississippi.
    No. 50217.
    Supreme Court of Mississippi.
    Aug. 24, 1977.
    Mitchell M. Lundy, Grenada, for appellant.
    A. F. Summer, Atty. Gen., by Karen Gil-foy, Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Grenada County; Clarence E. Morgan, Jr., Judge.

Before PATTERSON, C. J., and SUGG and WALKER, JJ.

AFFIRMED.


text:
    Frank Hungerford SANTMEYER, Jr. v. STATE of Mississippi.
    No. 50280.
    Supreme Court of Mississippi.
    Aug. 24, 1977.
    Rex K. Jones, Hattiesburg, for appellant.
    A. F. Summer, Atty. Gen., by Catherine W. Underwood, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Lamar County; R. I. Prichard, III, Judge.

Before PATTERSON, C. J., and SUGG and WALKER, JJ.

AFFIRMED.


text:
    Louise TAYLOR v. MISSISSIPPI EMPLOYMENT SECURITY COMMISSION et al.
    No. 49992.
    Supreme Court of Mississippi.
    Aug. 24, 1977.
    Dennis L. Horn, Hazlehurst, for appellant.
    Stephen L. Platt, Jackson, for appellee.
   Appeal from Circuit Court, Hinds County; Francis S. Bowling, Judge.

Before PATTERSON, C. J., and SUGG and WALKER, JJ.

AFFIRMED.

BOWLING, J., took no part.


text:
    Charles WILLIAMS v. Jerry WIGGINS.
    No. 50029.
    Supreme Court of Mississippi.
    Aug. 24, 1977.
    Gaston H. Hewes, Jr., Boyce Holleman, Gulfport, for appellant.
    Bryan, Nelson, Allen & Schroeder, David L. Cobb, Gulfport, for appellee.
   Appeal from Circuit Court, Hancock County; Floyd J. Logan, Judge.

Before PATTERSON, C. J., and SUGG and WALKER, JJ.

AFFIRMED.


text:
    Cecil STEVE v. Tianie Lynn AMOS by next friend and Janice Amos.
    No. 50069.
    Supreme Court of Mississippi.
    Aug. 24, 1977.
    Edward A. Williamson, Philadelphia, for appellant.
    Laurel G. Weir, Philadelphia, for appel-lee.
   Appeal from Chancery Court, Neshoba County; John C. Love, Jr., Chancellor.

Before PATTERSON, C. J., and SUGG and WALKER, JJ.

AFFIRMED.


text:
    Thomas Homer COOPER v. Barbara Jean Basic COOPER.
    No. 49557.
    Supreme Court of Mississippi.
    Aug. 24, 1977.
    Hurlbert & O’Barr, Clyde Hurlbert, Biloxi, for appellant.
    Estes & Blackwell, George Estes, III, Gulfport, for appellee.
   Appeal from Chancery Court, Harrison County; John S. Morris, Chancellor.

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

REVERSED AND REMANDED.

PATTERSON, C. J., INZER, P. J., and ROBERTSON, WALKER, LEE and BOWLING, JJ., concur.


author:
EMBRY, Justice.
      JONES, Justice SHORES, Justice BEATTY, Justice

text:
    Robert CHILDERS et al. v. Joe COUEY.
    SC 1986.
    Supreme Court of Alabama.
    May 6, 1977.
    Rehearing Denied Aug. 12, 1977.

      John S. Key of Eyster, Eyster & Key, Norman W. Harris of Harris, Harris, Shinn & Harris, Decatur, for appellants.
    James D. Whitmire of Lentz & Nelson, Decatur, for appellee.
   EMBRY, Justice.

At issue in this case is the constitutionality of a 1973 Amendment of Tit. 26, § 312, Code of Ala. (Liability of party other than employer, etc.). This is an appeal by permission pursuant to Rule 5, ARAP.

Joe Couey, plaintiff below, seeks to maintain a third party action in tort against Robert Childers, a co-employee, and four individuals who are supervisory personnel of Couey’s employer.

Plaintiff is a lineman employed by the City of Decatur and the Municipal Utilities Board of Decatur, Morgan County, Alabama.

The suit arises out of an accident which occurred while plaintiff was working atop a pole supporting electrical wires, and in which plaintiff allegedly received severe electrical shock causing him to fall to the ground sustaining serious injuries and permanent total disability.

Defendants are Robert Childers, lineman and co-employee of plaintiff, James Coulter, Richard Watkins, Frank Chenault, Jr., and Mason Pearce, supervisor, manager, assistant manager and superintendent, respectively, for the Electric Department of the Municipal Utilities Board.

Plaintiff alleges each defendant was negligent in the performance of his duties and that as a proximate consequence of that negligence, plaintiff was injured. Also named as defendants were the City of Decatur, and its Municipal Utilities Board, which were granted summary judgment, The Hartford Insurance Company and The Hartford Accident and Indemnity Company who provide Workmen’s compensation coverage for the Utilities Board, none of whom are parties to this appeal. Plaintiff seeks $1,500,000 in damages.

The five individual defendants named above filed motion for summary judgment, with supporting affidavits, on the following grounds: that the City of Decatur, and its Municipal Utilities Board, are subject to the Workmen’s Compensation Laws of Alabama; that plaintiff had received $26,-975.48 in compensation and medical benefits from the Workmen’s compensation insurance carrier for the City of Decatur; that at the time of the accident defendants and plaintiff were employed by the Municipal Utilities Board of Decatur; that the basis of plaintiff’s action arose out of and in the course of his employment and that by reason of Tit. 26, § 312, Code of Ala., the defendants are not third-party tort feasors against whom a suit can be maintained. The motion was accompanied by affidavits of officials of the City of Decatur showing the City had elected to be, and was, bound by the Workmen’s Compensation Laws of Alabama, that plaintiff had notice of this prior to his accident, and that plaintiff had Workmen’s compensation payments as a result of the injuries made the basis of the action.

In opposition to the motion, plaintiff filed affidavits of former State Senator William Melton and John Pemberton, Clerk of the Alabama House of Representatives. Both affidavits concern an Amendment to Tit. 26, § 312, Code, which, because it contains an alleged clerical error, failed to achieve its alleged purpose: deleting that portion of § 312 which prohibits third-party actions against co-employees and others. Plaintiff also filed what purports to be a certified copy of original House Bill 1273, and a certificate of Mabel S. Amos, former Secretary of State, containing a copy of House Bill 1273 as adopted by the 1973 Alabama Legislature as Act No. 1062.

Defendants moved to strike plaintiff’s affidavits and certificates on the grounds that such materials sought to contradict and impeach the validity of Tit. 26, § 312, Code, and in that regard were not proper for consideration by the court. Defendants also moved for summary judgment. The court granted the motion to strike, but denied the motion for summary judgment. The court entered an order in compliance with Rule 5, ARCP, and defendants appeal the denial of the motion for summary judgment.

The key issue here is whether defendants are entitled to summary judgment in a third-party tort action in view of Tit. 26, § 312, Code of Ala. (1975 Supp.). The resolution of the issue requires answers to several questions concerning the validity of a portion of that statute. We find that defendants are entitled to summary judgment and therefore reverse the trial court below.

The latest promulgation of Tit. 26, § 312, Code of Ala., appears in the 1975 Interim Supplement. As approved November 13, 1975, the pertinent portion reads:

“§ 312. (7587) Liability of party other than employer and procedure governing; liability of employer for attorney’s fees in settlement. — Where the injury or death for which compensation is payable under article 2 of this chapter was caused under circumstances also creating a legal liability for damages on the part of any party other than the employer whether or not such party be subject to the provisions of article 2 of this chapter the employee, or his dependents in case of his death, may proceed against the employer to recover compensation under article 2 of this chapter, or may agree with the employer upon the compensation payable under article 2 of this chapter, and at the same time may bring an action against such other party to recover damages for such injury or death, and the amount of such damages shall be ascertained and determined without regard to article 2 of this chapter; provided, however, neither an officer, director, agent, servant or employee of the same employer nor his personal representative, nor any workmen’s compensation insurance carrier of the employer, nor any officer, director, agent, servant or employee of such carrier, nor any labor union, or an official or representative thereof, making a safety inspection for the benefit of the employer or its employees, shall be considered a party other than the employer against whom such an action may be brought. * * * ” (emphasis ours)

The language emphasized above was placed in the statute by a 1973 Amendment. Prior to that time it was possible to maintain a third-party tort action against co-employees. United States Fire Insurance Co. v. McCormick, 286 Ala. 531, 243 So.2d 367 (1970). It is this language, precluding the maintenance of a civil action by an employee for damages from an injury occurring in his employment against another employee of the same employer, which plaintiff-ap-pellee contends is invalid. Plaintiff bases this contention on the allegation that there is a material variance between the enrolled bill (Act No. 1062, Approved Sept. 17, 1973) signed by the Governor, and the bill which actually passed the 1973 Legislature.

The amendment on which plaintiffs contentions are based, as deleting the pertinent portion of § 312, reads:

“Delete § 27 amending § 36 of Title 26 as it appears on page 29 and renumber remaining sections.” (emphasis ours)

The use of § 36 in the Amendment was a mistake, says plaintiff, the action cited should have been § 312. He urges the Court to look at page 29 of the original bill, to which the Amendment refers, and there it will be discovered there is no § 36 on page 29, but there is § 312. Plaintiff says that if we simply delete the words “amending § 36” from the Amendment, we can see that the true intent of the Amendment was to delete that portion of the statute prohibiting suits against co-employees. Thus corrected, the Amendment will achieve its “true purpose,” which it did not achieve when actually passed by the Legislature.

An Act of the Legislature as enrolled and approved by the Governor is valid unless it varies in a material respect from the bill passed by the Legislature. King Lumber Co. v. Crow, 155 Ala. 504, 46 So. 646 (1908); Moog v. Randolph, 77 Ala. 597 (1884).

In determining whether there is a material variance between a bill actually passed by the Legislature and the enrolled bill signed by the Governor the only competent evidence which can be considered by this Court is the enrolled bill and the Journals of the House and Senate. It must affirmatively appear from an inspection of these two sources that the bill signed and approved by the Governor, and enrolled, materially varies from the bill passed by the Legislature. Robertson v. State, 130 Ala. 164, 30 So. 494 (1901); Ex parte Howard-Harrison Iron Co., 119 Ala. 484, 24 So. 516 (1898).

Through the cooperative efforts of the Department of Archives and History of Alabama we were able to examine the enrolled bill (Act No. 1062) and the bill as it appears in the Journals of the House and Senate. We must note here that at no place in either the House Journal or the Senate Journal is the entire bill (House Bill 1273-Act No. 1062) spread on the Journals. All reference to the bill is in its title and the Amendments offered to it. It does appear from the Senate and House Journals that several Amendments to the Workmen’s Compensation Laws were adopted. We do find in that part of the Melton Amendment, here under discussion, the language pointed out by plaintiff: “Delete Section 27 amending Section 36 of Title 26 as it appears on page 29 and renumber the remaining sections.” (emphasis ours) At no place do we find reference to an Amendment to § 312, nor instructions to delete all or a portion of § 312 from the bill. The Journals completely fail to show that § 312 should not have been in the enrolled bill as passed by the Legislature and signed by the Governor. Thus § 312, as it appears in the 1975 Supplement to the Code, became law upon its approval by the Governor. § 125, Constitution of 1901. Therefore, it does not affirmatively appear that the bill signed by the presiding officers of the Legislature and approved by the Governor is materially variant from the bill passed by the Legislature. In the absence of a material variance we cannot hold the statute, or any portion of it, constitutionally invalid.

Assuming without deciding, that a clerical error in the Melton Amendment did occur, we would be forced to look beyond the enrolled bill and the Journals of the Legislature in order to establish the existence of an ambiguity which would require a construction of the statute. We cannot engage in such collateral attack. It is not the province of this Court to correct, edit, or otherwise amend the Legislative Journals. It is the inherent right and power of the Legislature to amend its Journals so as to make them reflect the true meaning and purpose of legislation. Mayor and Alderman of West End v. Simmons, 165 Ala. 359, 51 So. 638 (1910).

This case comes to us on appeal from denial of defendants’ motion for summary judgment. We have reviewed the pleadings, the motion for summary judgment and supporting affidavits. From these it is established that plaintiff and defendants are employed by the Municipal Utilities Board, an agency of the City of Decatur; that the Board and City are subject to the Workmen’s Compensation Laws of Alabama; that plaintiff’s injuries resulted from an accident which arose out of and in the course of his employment, and that by virtue of Tit. 26, § 312, Code, co-employees are not third-party tortfeasors against whom an action such as this can be brought.

Plaintiff attacks the statute but has not successfully carried the burden of proving its invalidity. The evidence thus established, there is no genuine issue as to any material fact. Defendants are entitled to summary judgment. The order of the trial court is due to be and is hereby reversed.

REVERSED AND RENDERED.

TORBERT, C. J., and BLOODWORTH and FAULKNER, JJ., concur.

ALMON, J., concurs in result.

JONES, J., dissents with opinion.

SHORES, J., dissents with opinion in which MADDOX, J., joins.

BEATTY, J., dissents with opinion.

JONES, Justice

(dissenting):

I concur with the dissenting opinion filed by Justice Shores and, in addition thereto, I respectfully add the following comments:

As long as an appellate court follows precedent, or departs from precedent for good cause stated, it is pursuing its proper function. When it does neither, the propriety of its action is called into question. In the face of clear and unequivocal authority to treat as corrected self-correcting legislative clerical or typographical error — as pointed in Justice Shores’ dissent — the majority opinion either overrules well-established case law without stating reasons therefor or simply ignores that such precedent exists. When, as here, the majority holds contrary to clear and applicable precedent without expressly overruling that precedent or without acknowledging its existence and application, I am constrained and duty bound to speak out, respectfully but strongly, against such holding.

In the context of this case, if “Section 36” is not self-correcting to read “Section 312”, the rule of Bracken and Harper (cited in Justice Shores’ dissent) can never be given a field of operation. Not only does the sentence in the Melton Amendment, which mistakenly identifies Section 36, contain the page number of the referenced bill (page 29), it also specifies “Section 27” of H.B. 1273. The only “Section 27” of the original amendment, which appears on “page 29” of H.B. 1273, amends Section 312 of Title 26. The average man on the street could hardly be left in doubt about the correct section here intended. There is no “Section 36” on “page 29”. There is no “Section 27” to H.B. 1273 which purports to amend “Section 36 of Title 26”. All of H.B. 1273 contained amendments to the Workmen’s Compensation Act (Title 26, beginning with § 253), while Section 36 of Title 26 relates to an entirely different subject matter (coal mining inspection reports) — a subject not covered by H.B. 1273.

If this were not enough, the whole of the Melton Amendment renders inescapable the conclusion that the intended reference was to Section 312. The other two portions of the Melton Amendment complement the intended amendment to Section 312 by conforming the definitions section (Section 262) and the immunity section (Section 272) so as to make all sections of the comp act consistently exclude fellow employees as embraced in the third-party provisions of Section 312. Given the first two portions of the Melton Amendment that did pass, all doubt is removed concerning the mistaken reference to Section 36. H.B. 1273 amended Sections 262, 272, and 312 to include fellow employees within the definition of “employer” and make them equally immune to suit. The Melton Amendment restored the original language to the first two sections and the third portion of the Amendment could only have intended to restore the original language to Section 312.

The majority opinion fails to address the anomaly brought about by the Act as signed by the Governor.. The Act, to be complete, requires consistency of language in all three sections. This was accomplished by H.B. 1273 which, in all its pertinent sections, prohibited suits against fellow employees as third parties, and the Melton Amendment accomplished this consistency by permitting, in all its pertinent sections (all of which was passed by both houses), third-party suits against fellow employees. The Act as signed did neither. It contained the Melton Amendment to Sections 262 and 272 and the original H.B. 1273 Amendment to Section 312. In this hybrid posture, aside from the issue of self-correcting error, are fellow employees suitable as third parties? At any rate, whatever the answer to this question, it is apparent that the clerical error in the use of “Section 36” is self correcting to read “Section 312”.

The result obtained by the majority opinion is of relative unimportance. Indeed, the 1973 amendment, as it relates to third-party practice had a duration of only two years. The legal principle on which this result is founded is tremendously important. Either we recognize, as part of the jurisprudence of this State, a self-correcting of clerical and typographical errors rule (“patent mistake” rule) or we do not. Bracken (1908) and Harper (1895) are old cases, but they should not be casually overruled or lightly ignored.

To be sure, the reason for the rule is dramatized in the case at bar. Government, in its three separate and equal branches and in all its aspects, does not operate in a vacuum or through some mystic or mechanical device. It is run by human beings — erroring and fallible. Indeed, human error within the judicial branch is not altogether unheard of, and it is here that the self-correcting error rule is most frequently applied. Even “Homer himself hath been observed to nod.”

The legislative process is tedious and complex. Simplistic answers are rarely readily available to complicated problems. Preciseness and clarity of language, when applied to various and many times unforeseeable situations, are likened unto the illusive butterfly. The task of interpretation and search for legislative intent is one of the essential roles of the judiciary. It is in the exercise of this role of accommodation to the other two branches of government that the judiciary finds its highest expression and exemplifies its finest hour.

Where human error in the legislative process is manifest and patent and intent is clear, it is our duty to give effect to that intent (unless, of course, such intent is constitutionally proscribed.) Otherwise, the judicial and legislative branches of government set themselves one against the other and the function of government is thwarted. A republic works only because its people want it to, not because the seeds of success are inherent in its mere political design. It should be apparent to any student of legal history that it is out of these considerations that the “patent mistake” rule of Bracken and Harper evolved and pertains in this jurisdiction, and any opinion of this Court which undermines this rule serves only to weaken our institutions of government. On well-established and sound legal precedent, this case is due to be reversed and remanded for trial.

SHORES, Justice

(dissenting):

I agree with the majority that all we can look to for a determination of whether an act signed by the Governor materially differs from the bill actually passed by the legislature are the Journals of the House and Senate and the enrolled bill. The Journals of both houses indicate that the Melton Amendment to H.B. 1273 did pass both the Senate and the House. The enrolled bill contains every provision of the Melton Amendment except one. The Senate Journal, however, from whence the amendment emanated, reflects that every provision of the Melton Amendment passed. Under these circumstances, the Journal must prevail.

In Bachelor v. State, 216 Ala. 356, 362, 113 So. 67, 72 (1927), the following appears:

“The rule prevailing in this jurisdiction is that every enrolled act, regular on its face and found in the custody of the Secretary of State, authenticated by the signature of the President of the Senate and the Speaker of the House as prescribed by the Constitution, is prima facie evidence that it was constitutionally enacted, and this presumption can only be overcome by the contrary being affirmatively made to appear by the legislative journals. . . . ”

The journals unequivocally and affirmatively show that every provision of the Melton Amendment passed in both houses. The amendment offered by Senator Melton to H.B. 1273 was as follows, as shown by Senate Journal 1973, at pages 3301 and 3302:

SENATE JOURNAL, SPECIAL SESSION AND REGULAR SESSION, 1973, VOL. 3

“Mr. Melton then offered the following amendment to the Bill, H.B. 1273, as amended, to-wit:
“AMENDMENT TO H. B. 1273, AS AMENDED:
“In the title, delete the following Sections 272; 262 of Title 26, Section 36 of Title 26, Section 7 of Act 180, 1951 Regular Session, Section 6, Act 521, 1967 Regular Session, Section 6, Act 668, 1971, Regular Session.
“Also strike out beginning on line 24 the following ‘providing immunity under certain circumstances from suits to co-employees to workmen’s compensation insurance carriers of employers, and to persons or companies making certain safety inspections’.
“In Section 4, Subsection (d) of Section 262 of Title 26 delete the following beginning on line seven of said subsection (d) ‘such insurer being entitled to the employer’s rights, immunities and remedies under this chapter’.
“Delete Section 9 amending Section 272 of Title 26 as it appears on page 4 and renumber the remaining sections.
“Delete Section 27 amending Section 36 of Title 26 as it appears on page 29 and renumber the remaining sections.
“Delete Section 31 amending Section 7 of Act 180, 1951 Regular Session as it appears on page 32 and renumber the remaining sections.
“Delete Section 37 amending Section 6, Act 521, 1967 Regular Session as it appears on page 34 and renumber the remaining sections.
“Delete Section 43 amending Section 6, Act 668, 1971 Regular Section as it appears on page[s] 36 and 37 and renumber the remaining sections.”

All provisions of the Melton Amendment were incorporated into the act as enrolled except that one which reads: “Delete Section 27 amending Section 36 of Title 26 as it appears on page 29 and renumber the remaining sections.”

The reference to various sections contained throughout the Melton Amendment were references to particular sections of H.B. 1273. The reference to 27 was a reference to that section of H.B. 1273 as it appeared on page 29 of that bill. H.B. 1273 was a comprehensive amendment to the Workmen’s Compensation Act. Every provision of the amendment offered by Senator Melton and adopted by both houses was designed to delete from that bill any provision which would immunize certain third parties from common law liabilities for torts by equating such persons to “employer as defined in the Workmen’s Compensation Act. By the amendment, both houses deleted from the act a provision “ ‘providing immunity under certain circumstances from suits to co-employees, to workmen’s compensation insurance carriers of employers, and to persons or companies making certain safety inspections’.” Section 4(d) was amended to delete the following language: “ ‘such insurer being entitled to the employer’s rights, immunities and remedies under this chapter’.” Section 9 of H.B. 1273, before its deletion, amended § 272 of Title 26 which would have excluded other remedies against any employee and “any employer’s workmen’s compensation insurance carrier . . . any person or company making any safety inspections for the benefit of the employer or his employees . any officer, director, agent, servant, or employee of such employer . ”

Each of the provisions of the amendment passed by the legislature was designed to delete from H.B. 1273 any provision which would extend immunity to third parties beyond that which existed by law at the time H.B. 1273 was being considered.

Each of the provisions of this amendment deleting certain portions of H.B. 1273 was followed in the act which was signed by the Governor except the provision referring to Section 27 of H.B. 1273 set out above. However, that provision also passed both houses of the legislature, as shown by the Senate Journal, in compliance with Section 64 of the Constitution of 1901. This creates a material variance between the bill as passed by the legislature and that signed by the Governor. The majority say that this fact does not appear in the journals of the legislature, because the reference is to Title 26, § 36. I disagree. The reference is clearly to Section 27 of H.B. 1273 as it appears on page 29 of that bill. The clerical error in referring to § 36 of Title 26 is self-correcting.

It is this court’s function to give effect to the intent of the legislature, and, to do that, it is necessary to look to the whole act.

“ . . . A statute is passed as a whole and not in parts or sections and is animated by one general purpose and intent. Consequently, each part or section should be construed in connection with every other part or section so as to produce a harmonious whole. . . . ” Sands, Sutherland Statutory Construction, Vol. 2A, Section 46.05 (4th ed. 1973).

In State v. Bracken, 154 Ala. 151, 154, 45 So. 841, 842 (1908), this court said:

“ . . . It is true that apparent mistakes will be considered as corrected, where the other provisions of the act or the journals of the Legislature furnish the means of correcting the same, so that the intention of the Legislature is clearly manifest. . . . ”

In Harper v. State, 109 Ala. 28, 19 So. 857 (1895), this court was called upon to pass upon the constitutionality of an act passed in 1895 which purported to amend an act approved in 1891. The title to the 1895 act read:

“ ‘To amend an act for the trial of misdemeanors in Shelby County, approved February 12th, 1891.’ The first section [of the act read:] ‘That an act entitled an act to regulate the trial of misdemeanors in Shelby county, approved February 21st 1893, be amended so as to read as follows,’ ” (Emphasis Supplied) (109 Ala. at 31, 19 So. at 858.)

There, the court found that it was the intention of the legislature to amend the 1891 law, and upheld the 1895 act notwithstanding the mistake in referring to the wrong act in the body of the bill. The court said:

“. . . Here is an obvious, patent mistake, in the title or in the body of the act. It is well settled that legislative enactments are not, any more than any other writings, to be defeated on account of mistakes, errors or ommissions [sic], provided the intention of the legislature can be collected from the whole statute. . ” (109 Ala. at 31, 19 So. at 858.)

Such, I believe, is the case here. I agree that we are limited to what appears in the journals of the legislature and the enrolled act to determine the legislative intent. However, from those sources, it is quite clear that the legislature intended to delete from H.B. 1273, Section 27, which, as it appeared in H.B. 1273, would have amended § 312 of Title 26. The fact that the amendment offered to H.B. 1273 incorrectly referred to § 36 of Title 26 should not be allowed to defeat what the legislature clearly intended to accomplish. In Crawford, The Construction of Statutes, Section 201 (1940), the following appears:

“. . . [I]f the true meaning of the legislature appears from the entire enactment, errors, mistakes, omissions and misprints may be corrected by the court, so that the legislative will may not be defeated. As a result, spelling, grammar, numbers, and even words, may be corrected. This, as already stated, is simply making the strict letter of a statute yield to the obvious intent of the legislators.

Also:

“An obvious clerical error can be corrected by construction, as e. g., the reference to a wrong date or to a wrong chapter or section number of a statute when the intended reference is clear. . . .”65 Pa.L.Rev. 207, 219 (1917).

I think these rules are controlling here. I think the legislature intended to, and did, delete from H.B. 1273 Section 27 of that bill which bill, as originally authored, would have amended § 312 of Title 26. The net effect of this action would have left § 312 of Title 26 unaltered by H.B. 1273. Because the act signed by the Governor materially differs from the bill passed by the legislature, Section 26 of Act No. 1062, amending § 312 of Title 26, approved September 17, 1973 (which H.B. 1273 became), is void.

In taking this position, I am mindful of the general rule that “. . . [W]here the Governor approves a bill, and the bill as approved materially varies in substance and legal effect from the bill as passed by the General Assembly, ‘then there exists such a want of legal and actual identity .between the bill passed and the one approved, that neither of them acquires the force of a valid and constitutional enactment.’ . . .” Stem v, Leeper, 78 Ala. 517, 521 (1885), citing Jones v. Hutchinson, 43 Ala. 721 (1868). However, it is equally well settled that:

“. . .A statute may contain some such provisions, and yet the same act, having received the sanction of all branches of the legislature, and being in the form of law, may contain other useful and salutary provisions, not obnoxious to any just constitutional exception. It would be inconsistent with all just principles of constitutional law to adjudge these enactments void because they are associated in the same act, but not connected with or dependent on others which are unconstitutional. ... If, when the unconstitutional portion is stricken out, that which remains is complete in itself, and capable of being executed in accordance with the apparent legislative intent, wholly independent of that which was rejected, it must be sustained. . . ” Cooley’s Constitutional Limitations 211, 212 (5th ed. 1883).

As noted earlier, H.B. 1273 was a comprehensive revision of the Workmen’s Compensation Law. It contained many provisions unrelated to suits against third-party tort-feasors. As finally passed by both houses, the third-party immunity sought to be extended by the bill as first offered, was deleted by the Melton Amendment. The variance in the bill, as signed by the Governor and that passed by both houses of the legislature, is limited to one section of the bill relating to third-party suits. Provisions of the bill unrelated to third-party liability passed both houses and was signed by the Governor in the form passed by both houses. Those sections are, therefore, complete within themselves and capable of being executed, consistent with the legislative intent. They are unrelated to and unconnected with the third-party provisions. Therefore, they are not rendered constitutionally defective because of the variance in part of the third-party provisions, the subject of this lawsuit.

MADDOX, JONES and BEATTY, JJ., concur.

BEATTY, Justice

(dissenting):

I join in Justice SHORES’ dissent because I an convinced that the provision in question was a clerical error which may be adjudged corrected when we consider the manifested intent of the legislature as expressed otherwise in this legislation. I make no comment upon any other aspect of either the majority opinion, Justice SHORES’ dissent, or Justice JONES’ dissent.

ON REHEARING

The application raises nothing which was not exhaustively argued originally. However, brief amicus curiae was filed after grant of leave to do so. That brief raises the question of the constitutionality of Tit. 26, § 312, Code, when placed alongside Article 1, Section 10 of, and the Fourteenth Amendment to, the Constitution of the United States as well as Article 1, Sections 10 and 13 of the Constitution of Alabama.

A summary of the argument of these points is:

1. Section 312, Tit. 26, impairs the right of contract by destroying the right of election to come under the Workmen’s Compensation Act.

2. Section 312, Tit. 26, deprives the workman of property without due process of law; the right to sue for injury.

3. Section 312, Tit. 26, bars the workman from prosecuting or defending before any tribunal of this State.

4. Section 312, Tit. 26, takes away the common law right of the workman to sue for injury without giving anything in return.

None of these arguments were made by the litigants in this case, either originally or on application for rehearing. We find no authority that permits an amicus to raise them for the first time, therefore, we cannot address these issues.

APPLICATION FOR REHEARING OVERRULED.

TORBERT, C. J., BLOODWORTH and FAULKNER, JJ., concur.

ALMON, J., concurs in result.

MADDOX, JONES, SHORES and BEAT-TY, JJ., dissent.


author: FAULKNER, Justice. MADDOX, Justice JONES, Justice

text:
    Odina L. ATCHISON, etc. v. William Clyde HORTON et al.
    SC 2035.
    Supreme Court of Alabama.
    May 6, 1977.
    Rehearing Denied Sept. 9, 1977.
    Lanny S. Vines of Emond & Vines, Benjamin B. Spratling, III of McMillan & Sprat-ling, Birmingham, John A. Taber of Williamson & Taber, Greenville, for appellants.
    W. Gerald Stone and James B. Kierce, Jr. of Stone, Patton & Kierce, Bessemer, for appellees.
   FAULKNER, Justice.

This is an appeal from an order of the Circuit Court of Jefferson County, dismissing a wrongful death suit against co-employees. We affirm.

On May 14, 1975, Ben Atchison was electrocuted while working in the scope of his employment. On February 10, 1976, Odina Atchison, wife of the decedent, brought a wrongful death suit against five of his coworkers for negligently failing to provide the decedent with a reasonably safe place to work and with reasonably safe equipment for work. The co-workers filed a motion to dismiss on the basis of the Workmen’s Compensation Act, in particular, Title 26, § 312 of the Code of Alabama 1940, as amended 1973. Atchison claimed that § 312, as it existed prior to the 1975 amendment, permitted suits against a co-employee as a third party. The trial court granted the motion to dismiss. Atchison appeals this order.

There are two issues: (1) whether the 1973 amendment to Tit. 26, § 312 of the Code of Alabama as it appeared in the 1973 cumulative supplement was validly enacted, and (2) whether the 1975 amendment to Tit. 26, § 312 of the Code of Alabama was applicable to a cause of action which arose shortly before the amendment was passed and on which suit was filed shortly after the amendment was passed.

As to the first issue of whether the 1973 amendment was validly enacted, we follow the holding of Childers v. Couey, Ala., 348 So.2d 1349, rendered this date by this court, and hold that it was.

Because we hold that the 1973 amendment was validly enacted and, thus, co-employees could not be sued, we need not decide the second issue as to the retrospective application of the 1975 amendment.

The order of the trial court dismissing the action is affirmed.

AFFIRMED.

TORBERT, C. J., and BLOODWORTH and EMBRY, JJ., concur.

ALMON, J., concurs in the result.

MADDOX, JONES, SHORES and BEAT-TY, JJ., dissent.

MADDOX, Justice

(dissenting).

I joined Justice Shores’ dissent in Childers v. Couey, Ala., 348 So.2d 1349 [released May 6,1977]. I adhere to the same views in this case.

JONES, Justice

(dissenting).

The reasons for my dissent are stated in my dissenting opinion in Childers v. Couey, Ala., 348 So.2d 1349 [released May 6,1977],


author: BLOODWORTH, Justice.

text:
    Bonnie Gale ZIMMERMAN, a minor, and Miles Raymond Zimmerman, Jr., a minor, et al. v. The FIRST NATIONAL BANK OF BIRMINGHAM, as Trustee Under the Will of Hattie Lee Guess Matthews, Deceased. The FIRST NATIONAL BANK OF BIRMINGHAM, as Trustee Under the Will of Hattie Lee Guess Matthews, Deceased v. The FIRST NATIONAL BANK OF BIRMINGHAM, as Executor Under the Will of Harriet Matthews Zimmerman, et al. Bonnie Gale ZIMMERMAN, a minor, and Miles Raymond Zimmerman, Jr., a minor, et al. v. The FIRST NATIONAL BANK OF BIRMINGHAM, as Trustee Under the Will of Hubert W. Matthews, Deceased. The FIRST NATIONAL BANK OF BIRMINGHAM, as Trustee Under the Will of Hubert W. Matthews, Deceased v. The FIRST NATIONAL BANK OF BIRMINGHAM, as Executor Under the Will of Harriet Matthews Zimmerman, et al.
    SC 1987, SC 1987-X, SC 1988, SC 1988-X.
    Supreme Court of Alabama.
    May 27, 1977.

      Michael F. Bolin, Birmingham, for Unknown Heirs and/or Unknown Parties in Interest.
    Frank Dominick, Birmingham, for FNB as Executor under Will of Harriet Matthews Zimmerman.
    Johnathan E. Lyerly, W. A. Jenkins, Jr., Birmingham, for Miles Raymond Zimmerman, individually and as guardian for Bonnie Gale and Miles R. Zimmerman, Jr., minors.
    Rodney E. Nolen, Birmingham, guardian ad litem for Bonnie Gale Zimmerman, a minor and Miles R. Zimmerman, Jr., a minor.
    Erie Pettus, Jr., Birmingham, for appel-lee and cross appellant FNB, as Trustee under Wills of Hattie Lee Guess Matthews and Hubert W. Matthews, deceased.
    Jack B. Porterfield, Jr., Birmingham, for Wm. Hutchins Cole, Jr. and Hubert Matthews Cole.
    John T. Natter, Birmingham, guardian ad litem for Wm. Hutchins Cole, III and all yet unborn children of Wm. Hutchins Cole, Jr.
    Walter L. Mims, Birmingham, for Harriet Lee Cole Wiltsie.
    Harold D. Rice, Jr., Birmingham, for Donna Lee Wiltsie and George Arthur Wilt-sie, Jr.
   BLOODWORTH, Justice.

This is an appeal from a judgment in consolidated actions for the construction of the wills of Hubert W. Matthews (“Testator”) and his wife Hattie Lee Guess Matthews (“Testatrix”). We affirm in part and reverse in part and remand.

There are three issues which we answer as follows:

I. Was the trial court correct in holding that ITEM THREE of each will does not violate the Rule Against Perpetuities? Yes.

II. Was the trial court correct in holding that the term “my daughter’s children” in each will does not include certain adopted children? No.

III. Was the trial court correct in assessing attorneys’ fees for all parties against the trust estates of the Testator and the Testatrix? No.

The wills of the Testator and the Testatrix were executed in 1958. The Testator died on September 1, 1960, and the Testatrix died on January 5, 1966.

Both issues I and II, regarding the construction of the wills, arise from ITEM THREE, which in each will is substantially the same. The following is ITEM THREE of the Testatrix’s will:

“ITEM THREE: All the rest and residue of my estate, real, personal or mixed, I give, devise and bequeath to my husband Hubert W. Matthews [my wife Hattie Lee Matthews, and my nephew, Cecil J. Matthews] in trust, for the following uses and purposes:
(a) For and during the lifetime of my daughter Harriet Matthews Cole, the income from the trust estate shall be paid annually or in more frequent installments to my said daughter.
(b) Upon the death of my daughter my trustees shall continue to hold and manage said trust estate and shall pay the income therefrom in equal shares, per stirpes, to my daughter’s children for their education, support and maintenance. At the time each of my daughter’s children attains the age of twenty-five years my trustees shall pay one half of the share of the trust estate to said child and the remaining one half at the time said child attains the age of thirty-five years. When the last of my daughter’s children attains the age of thirty-five years the trust shall terminate. If any of my daughter’s children die before receiving his or her share of the trust estate and leaving no bodily heirs, said share shall in that event be divided equally among the surviving children and shall be merged with and administered in like manner to other property held for him or her. . . . ” [Italics supplied.]

ITEM THREE of the Testator’s will contains the bracketed language instead of “my husband Hubert W. Matthews,” and it contains a provision for payment of the income of the trust to his wife during her lifetime and then to his daughter during her lifetime. Section (b) above is identical to section (c) in the will of the testator.

The Testatrix was survived by her only child, Harriet Matthews Cole Zimmerman, who died on December 13, 1972. Harriet was survived by three children of a prior marriage to William H. Cole and by two children of her marriage to Miles Raymond Zimmerman, to whom she was married at the time of her death.

William H. Cole, Jr., a natural child was 27 years old at the time of his mother’s death. Harriet Lee Cole Wiltsie (“Lee”) was adopted in 1948 and was 25 years old at the time of her mother’s death. Hubert M. Cole, also a natural child, was 21 years old at the time of his mother’s death.

Bonnie Gale Zimmerman was adopted on August 30, 1965, the final decree being entered on April 3, 1967, and was seven years old at the time of her mother’s death. Miles R. Zimmerman, Jr., was adopted on April 27, 1966, the final decree being entered on January 29, 1968, and was six years old at the time of his mother’s death.

Both testators were fully aware of the adoption of Lee and had, in fact, been instrumental in her adoption. Lee lived in the home of the testators from the date of her adoption until shortly before the death of the Testator. She was accepted as a grandchild by the testators and was treated in the same manner as the two natural grandchildren.

Mr. W. H. Sadler, who had prepared both wills in 1958, testified without contradiction that he was instructed by the Testator to establish a trust for Harriet’s three children. Harriet’s only children at that time were William, Jr., Hubert, and Lee. The Testator also directed Mr. Sadler as to the terms of the Testatrix’s will.

The Testator died before the adoption or even the birth of either of the Zimmerman children. The ' Testatrix died before the final adoption decree was entered for Bonnie Gale and before Miles, Jr., was born. The adoption of Bonnie Gale was begun about six months before the death of the Testatrix, who had, however, been completely senile for a period of three to four years prior to her death. There is no evidence that she was ever fully aware of Bonnie Gale.

After, the death of the daughter Harriet, the First National Bank of Birmingham, as Trustee under the will of Hubert W. Matthews and as Trustee under the will of Hattie Lee Guess Matthews, brought the present actions for declaratory judgments construing the wills.

The trial court rendered the following judgment, inter alia: (1) “The provisions of ITEM THREE of the subject wills are not violative of the Rule Against Perpetuities”; (2) “Harriet Lee Cole Wiltsie, the adopted daughter of Harriet Matthews (Cole) Zimmerman, is included in the term ‘my daughter’s children’ as used in ITEM THREE of the subject wills,” but “Bonnie Gale Zimmerman and Miles Raymond Zimmerman, Jr., also the adopted children of Harriet Matthews Zimmerman, are not included in the term ‘my daughter’s children’ as used in Item Three of the subject wills;” and (3) attorneys’ fees for attorneys representing all the parties to the two actions “shall be paid equally by the testamentary trusts created by Hubert W. Matthews and Hattie Lee Guess Matthews.”

Appeals have been taken from the judgment by the Zimmerman children, by the First National Bank of Birmingham, as Executor under the will of Harriet Matthews Cole Zimmerman (“Executor”), by a representative of unknown heirs and parties, and by Miles Raymond Zimmerman, individually and as guardian for the Zimmerman children.

The First National Bank, as Trustee under the wills of the Testator and the Testatrix (“Trustee”), has appealed the order directing it to pay all attorneys’ fees from the trust estates.

I. Rule Against Perpetuities

The trial court’s rationale for its holding that ITEM THREE does not violate the Rule Against Perpetuities is summarized in the following paragraph from the court’s final decree:

“Applying the rule against perpetuities to the bequest found in ITEM THREE, it is apparent that the interest will vest within the period of the rule. Summarizing the application of the rule briefly, Hattie Lee Guess Matthews and Harriet Matthews Zimmerman are the measuring lives for purposes of this rule. Upon the death of Hubert W. Matthews, the interest will vest in the children of his daughter, but subject to open if additional children are later born. Upon the death of Harriet Matthews Zimmerman, the class of ‘children’ is finally ascertained and closed because of the fact that it would be impossible for Harriet Matthews Zimmerman to have additional children after the time of her death. At this time, the interest immediately and finally vests in those children who are in being. Since the interest vests no later than the death of Harriet Matthews Zimmerman, the life in being, it vests within the time period set forth in the rule against perpetuities; i. e., 21 years after some life in being. Thus, the requirements of the rule are satisfied.”

As appellant on this issue, the Executor (under Harriet’s will) relies primarily on the provision of ITEM THREE that if any child died leaving no bodily heirs his share would be divided equally among the surviving children and merged with and administered with the other property held for the survivors. The Executor argues that this provision indicates that the interests were not to vest until each child reached age 25 and age 35 and that consequently the interests might not vest within the Perpetuities period.

We hold that the gifts to “my daughter’s children” in the wills of the Testator and the Testatrix do not violate the Rule Against Perpetuities.

Unless the testator clearly expresses an intention to the contrary, remainders are construed as vesting at the earliest possible moment, generally the death of the testator. Springer v. Vickers, 259 Ala. 465, 66 So.2d 740 (1953).

In the wills under consideration, there are certain provisions which might appear, at first blush, to indicate an intention to postpone vesting. We are thus confronted with the issues as to whether such an intention is expressed and, if it is, whether the time set for vesting is too remote.

The first provision which might appear to indicate an intention to postpone vesting is the clause which says, “If any of my daughter’s children die before receiving his or her share . . . leaving no bodily heirs, said share shall in that event be divided equally among the surviving children. . ” [Italics supplied.] This clause does not, however, indicate a clear intention to postpone vesting. Thus, the following rule of construction applies:

. . When conditional language in a transfer (i. e., ‘hut if’ ‘provided that,’ etc.) follows language which, taken alone, would be said to create a vested remainder, the condition so created is a condition subsequent. If, however, the conditional language appears before the language creating the remainder, or the conditional language appears to be part of the description of the person receiving the remainder (the remainderman), the condition created thereby is a condition precedent. .

Bergin & Haskell, Preface to Estates in Land and Future Interests 75 (1966).

The clause under consideration here follows language which, as will be seen, would, if taken alone, be said to create a vested remainder. Thus, the clause is a condition subsequent, which may operate to divest the vested interest of any of the children should he or she not live long enough to receive his or her share. Id. at 74. See also Gray, The Rule Against Perpetuities § 108 (4th ed. 1942). The interest created, we hold, is a vested interest subject to complete divestment, or total defeasance, and does not violate the Rule Against Perpetuities. Crawford v. Carlisle, 206 Ala. 379, 388, 89 So. 565 (1921); Simes & Smith, The Law of Future Interests §§ 113, 1269 (2d ed. 1956).

A caveat is in order, however. Although the gift to “my daughter’s children” is good because vested, the divesting provision and the executory gift over are, according to these authorities, bad because based upon a contingency which may occur too remotely. There is no occasion, however, to pass upon this issue because the divesting contingency has not occurred. Crawford v. Carlisle, supra.

The second provision which might appear to indicate an intention to postpone vesting is the clause which says, “At the time each of my daughter’s children attains the age of twenty-five years my trustees shall pay one half of the share of the trust estate to said child and the remaining one half at the time said child attains the age of thirty-five years.” This language does not, however, clearly indicate an intention on the part of the testators to postpone vesting until the times set, but merely indicates the times at which each child’s share of the corpus is to be paid or distributed. The applicable rule of construction is that, if futurity is annexed to the substance of the gift, it is contingent, but if annexed to the time of payment, enjoyment, or delivery of possession, it is vested. Austin v. Pepperman, 278 Ala. 551, 562, 179 So.2d 299 (1965); Crawford v. Carlisle, supra. Cf. Simes & Smith, supra at § 586.

The final provision which might indicate an intention to postpone vesting is that which makes the gift a class gift to “my daughter’s children.” Because Harriet survived the testators, the size of the class was uncertain at the death of the testators. The rule of construction applicable to this provision is stated in Blue v. Davis, 273 Ala. 450, 452, 142 So.2d 702, 704 (1962):

“. . [I]n the absence of a clear expression of a contrary intention on the part of the grantor, a remainder to the children of a life tenant is a remainder to a class, the members being composed of all the children of the life tenant without regard to the time of birth. . . .”
“The principle is thus stated in I Simes, Law of Future Interests, § 76, p. 120:
‘A remainder limited without words of condition to a class of persons, one or more of whom is in existence and ascertained, is vested, though subject to be divested in part by the coming into existence or ascertainment of other members of the class.’ ”

The interest thus created has been designated a vested remainder subject to open, or to partial divestment. Bergin & Haskell, supra at 73; Gray, supra at § 110.1; Simes & Smith, supra at §§ 114, 146. Nevertheless, the interest may not be said to be vested at the death of the testator for purposes of the Rule Against Perpetuities. As this Court said in Crawford v. Carlisle, supra, 206 Ala. at 386, 388, 89 So. at 572-573, 574:

“. . . [W]hen a future estate or interest in property is given to a class, and such estate or interest is vested in certain members of the class subject to open and let in other members born af-terwards, or afterwards fulfilling a condition . . . the shares in such remainder or interest will be obnoxious to the rule against perpetuities if their number, and therefore their size, may not be determinable until too remote a period
* # # Hi * *
“This class of remainders as the rule against perpetuities touches may not always be placed under the head of or in the class of vested remainders. For there may be remainder that is vested only in so far as it is certain that whenever and however the preceding estate determines there will be one or more persons who will come into possession thereof, ‘but in so far as it is not certain what the number of those persons will be, or, in other words as the number and consequent size of the shares,’ it is contingent; and such remainder cannot be said to be vested as respects the rule against perpetuities. The imperfect character of the vesting in such class or classes is illustrated by Mr. Gray, and, as he said, is brought out by the application of the rule that interests or estates in all respects vested ‘never come within the rule, but when there is a gift in remainder to a class which has become vested in a living person, if the number of persons who will finally constitute the class may not be determined until a remote period, the remainder is void. . . . This is apparently an exception to the rule that vested interests are never too remote, but in truth remainders of this sort, although called vested, are not really so; at a certain point, and on the point which the rule against perpetuities touches, they are, in fact, contingent.’ Sections 110a, 205a, 205b.”

Although the remainder in this case did not, for purposes of the Rule Against Perpetuiti-es, “vest” at the death of the testators, the size of the class was certain to be determined well within the time allowed by the Rule. The size of the class would be finally determined at the death of Harriet, the life tenant, because the class consisted of her children and obviously she could have no more children after her death. Consequently, the remainder would and did “vest,” for purposes of the Rule, upon the death of Harriet. See Simes & Smith, supra at § 640.

Therefore, we affirm the trial court’s holding that the gift to “my daughter’s children” does not violate the Rule Against Perpetuities.

II. “My Daughter’s Children’’

The trial court’s holding that the Zimmerman children are not included in “my daughter’s children” and that Lee Wiltsie is included is based on its analysis of relevant Alabama cases, from which it drew the following conclusion:

“. . . [T]he criterion to be satisfied in determining whether or not an adopted child should take under a class gift to ‘my children’ is:
(1) That the child must have been in contemplation by the testator at the time his will was executed;
(2) That the testator knew of or was otherwise aware of the adoption of the child or that the child was in being; and
(3) That the testator treated or otherwise regarded the child as a member of his family and to all human appearance recognized the child as an object of his solicitude and bounty. . . .”

The Zimmerman children and those aligned with their interests, as appellants with respect to this aspect of the trial court’s judgment, contend basically that Alabama case law concerning adopted children should be modified so that adopted children are treated exactly as natural children, unless a contrary intent clearly appears.

The modification urged by the appellants was effected, after this case was orally argued and submitted, in McCaleb v. Brown, 344 So.2d 485 (Ala.1977), in which this Court held that an adopted child “is presumptively within the designation of the adopter’s descendants unless the context or circumstances clearly establish a contrary intention.” Since the term “descendants” includes children, we can see no reason for following a different rule with respect to the term “children.” There being no indication of contrary intention on the part of the testators, we hold that the phrase “my daughter’s children” in both wills includes adopted children.

The most cogent argument for reaching a different result is that the testators may have relied on our previous case law that the term “children” does not include adopted children. See Whitfield v. Matthews, 334 So.2d 876, 878 (Ala.1976). This argument is vitiated in this case because there is testimony to the effect that the testators intended that the phrase “my daughter’s children” include adopted children. When the wills were executed, one of the testators’ daughter’s children was, in fact, adopted. The wills spoke of Harriet’s children in terms of “him or her,” but Harriet’s adopted child was her only female child then existing. Furthermore, Mr. Sadler testified that the Testator indicated to him that he intended for the adopted child Lee to be included in the class “my daughter’s children.” Since the testators obviously intended for one adopted child to be included in the class, they saw no need to mention specifically that the term “my daughter’s children” was meant to include adopted children.

Even under our previous case law, Lee would probably have been included in the class “my daughter’s children” without a specific mention in the will. But, surely any scrivener who had those previous cases in mind would not have left the inclusion of an adopted child to an event as unpredictable as a court’s interpretation of the testator’s intent. Apparently, the testators were not relying on our previous holdings that “children” does not include adopted children, but were using the term as it is commonly used to include all children, whether natural or adopted.

Therefore, we reverse the trial court’s holding that the class “my daughter’s children” does not include Bonnie Gale Zimmerman and Miles Raymond Zimmerman, Jr.

III. Attorneys’ Fees

The trial court did not cite any authority for its order directing payment of all attorneys’ fees out of the trust estates. All parties to the appeal of this order agree, however, that the principal issue is whether the court’s action is authorized by Tit. 46, § 63, Code of Alabama 1940 (Recompiled 1958):

“In all suits and proceedings in the probate courts and circuit courts and other courts of like jurisdiction, where there is involved the administration of a trust, or where there is involved the sale of property for distribution, or where there is a partition in kind of real or personal property between tenants in common, the court having jurisdiction of such suit or proceeding may ascertain a reasonable attorney’s fee, to be paid to the attorneys or solicitors representing the trust, joint, or common property, or any party in the suit or proceeding, and is authorized to tax as a part of the costs in such suit or proceeding such reasonable attorney’s fee, which is to be paid when collected as the other costs in the proceeding to such attorneys or solicitors as may be directed or ordered by the court and to be a lien on the several parts in case of partition in kind.” [Italics supplied.]

On its appeal of this order, the Trustee contends, and we here hold, that under Tit. 46, § 63, the trial court has the power to charge a trust with attorneys’ fees for services rendered for the common benefit of the beneficiaries of the trust, but not for services rendered in opposition to the validity of the trust or for services rendered in behalf of individual interests only.

The appellees on the appeal of this order contend that Tit. 46, § 63, does not require that services be rendered for the common benefit, but authorizes payment of attorneys’ fees for “any party in the suit or proceeding”.

All parties agree that the trial court properly awarded attorneys’ fees for guardians ad litem appointed under Rule 17(d), ARCP.

According to a well-established line of cases,

“[sjeetion 63, Title 46, Code, is largely an enactment of the ancient principle of equitable origin, and there enforceable, which was referred to as costs between solicitor and client and said statute makes it apply at law as well as in equity when justified. That principle is that a complainant in equity, who at his own expense has maintained a successful suit for the preservation protection or increase of a common fund or of common property, or who has created at his own expense or brought into court a fund in which others may share, may have paid to him, or sometimes directly to his attorney, an attorney’s fee for such services. , .”

Penney v. Pritchard & McCall, 255 Ala. 13, 17, 49 So.2d 782, 784 (1950). Or, as stated in Pate v. Law, 277 Ala. 608, 612, 173 So.2d 596 (1965),

“[t]he allowance of attorney’s fees under . [Tit. 46, § 63] is on the basis of, and solely for, benefits inuring to the common estate, and the tenants in common. Owens v. Bolt, 218 Ala. 344, 118 So. 590; Dent v. Foy, 214 Ala. 243, 107 So. 210; Snead v. Lee, 218 Ala. 44, 117 So. 469. This does not include a controversy as to the respective rights or interests of the tenants in common [or, in the ease of a trust, the beneficiaries], and to permit counsel for respondent to have a fee out of the common estate, he must have been employed to render, and did perform some service for the common estate, which in due course of the proceeding other counsel had not been employed to perform. Matthews v. Lytle, 220 Ala. 78, 124 So. 197.”

In Troy Bank & Trust Co. v. Brantley, 263 Ala. 428, 82 So.2d 618 (1955), Justice Mayfield, with Justice Simpson concurring in his opinion, unsuccessfully attempted to overrule this line of cases. Although a majority of the Court concurred in the result reached by Justice Mayfield, a majority did not concur in his construction of Tit. 46, § 63. Moreover, this Court has, in subsequent opinions, adhered to the common-benefit rule. See, e. g., McCulloch v. Roberts, 292 Ala. 451, 296 So.2d 163 (1974); Pate v. Law, supra.

We must reject the appellees’ contention that services rendered in opposition to the validity of the trust or in behalf of individual interests were for the common benefit. The services rendered must be for the common benefit of all the beneficiaries. Farmers’ Bank & Trust Co. v. Borroughs, 217 Ala. 97, 99, 114 So. 909 (1927). Neither destroying the trusts nor increasing the number of beneficiaries can reasonably be regarded as benefitting all the beneficiaries. It is therefore that we reverse the trial court’s judgment awarding fees to attorneys for all parties out of the trust estates.

In conclusion, we affirm the trial court’s judgment holding that ITEM THREE of each will does not violate the Rule Against Perpetuities, and, reverse and remand the judgment holding that the wills do not include certain adopted children and awarding attorney’s fees to all parties. We remand for entry of a judgment in conformity herewith.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED WITH DIRECTIONS.

TORBERT, C. J., and JONES, ALMON and EMBRY, JJ., concur.