author: PER CURIAM.

text:
    Walter C. DUMAS, Plaintiff-Appellant, v. DEMOCRATIC STATE CENTRAL COMMITTEE OF LOUISIANA et al., Defendants-Appellees.
    No. 10583.
    Court of Appeal of Louisiana, First Circuit.
    Aug. 29, 1975.
    Writ Refused Sept. 5, 1975.

      Walter C. Dumas, in pro. per.
    Thomas McFerrin, Ira S. George, Baton Rouge, for appellee.
    Before LANDRY, SARTAIN and ELLIS, JJ.
   PER CURIAM.

In this suit plaintiff Walter C. Dumas seeks by writ of mandamus to compel the Democratic State Central Committee and Honorable Wade O. Martin, Jr., Secretary of State of the State of Louisiana, to include his name on the ballot in the approaching primary election as a candidate for membership on the State Central Committee from District 26. From a judgment dismissing his suit on its merit, plaintiff has appealed.

The operable facts of the case, all of which were • stipulated, are as follows. Plaintiff possesses all of the qualifications necessary for candidacy for the office he seeks. Arthur C. Watson, Chairman of the Democratic State Central Committee is the proper person to receive the qualifying papers for that office. During the week preceding August 7, 1975, Mr. Watson was in Baton Rouge, Louisiana. On August 7, 1975, he was in his office at Natchitoches, Louisiana, all day until 5:00 o’clock p. m., during which time he received qualification papers from various candidates, and answered those phone calls which he could receive. It was stipulated that he would testify that he received qualifying papers from over 100 people and answered 178 phone calls on that day. The deadline for qualifying was 5:00 o’clock p. m., August 7, 1975.

Plaintiff attempted to reach Mr. Watson by phone from 1:15 o’clock p. m. until 3:00 o’clock p. m. on August 7, 1975, without success. At about 3:00 o’clock p. m., plaintiff contacted the office of Jesse Bankston, Secretary of the State Central Committee, and found that he was unavailable. Plaintiff then sent his qualifying papers to Mr. Watson by certified mail, which were deposited in the post office prior to 5:00 o’clock p. m. on August 7, 1975, and received by Mr. Watson on August 8, 1975.

Thereafter, the State Central Committee refused to certify plaintiff as a candidate and this suit followed.

The applicable provision of law is R.S. 18:397 which states:

“Whenever provision is made in this Part for the filing of any notice, deposit, or any other paper with any party committee or party officer, it shall be filed with the chairman of the proper committee. If the chairman is not available, absents himself, cannot be found or for any reason refuses to accept the paper or deposit, it may be filed with the secretary. If the secretary is not available, or refuses to accept the paper or deposit, or cannot be found, it may be deposited in the United States mail, at some point in Louisiana, by certified or registered mail in an envelope properly stamped and addressed to the chairman, which deposit in the mail constitutes a proper filing as of that date.”

Plaintiff argues that he did not make up his mind to become a candidate until 1:00 o’clock p. m. on August 7, 1975, and that, had he been successful in reaching Mr. Watson, and learning that he was in his office, plaintiff would have delivered the papers personally to Mr. Watson. He argues that, since he had no knowledge of the whereabouts of either the Chairman or the Secretary of the State Central Committee, they were not “available” within the terms of R.S. 18:397, and that it was proper to mail the papers as therein provided.

We find the argument to be without merit. The stipulations in the record show that Mr. Watson was in his office all day on August 7, until 5 :00 o’clock p. m., and that he received qualifying papers from over 100 candidates. If he was available to them, he was available to plaintiff.

We hold that, if a committee chairman is present at his home, office or usual place of business, during the hours when qualification papers may legally be filed and accepted, and is ready and willing to receive such papers, he is “available” within the terms of R.S. 18:397. See Jumonville v. Jewell, 317 So.2d 616 (La.App., 1 Cir., 1975) and Jordan v. 26th Senatorial District Democratic Executive Committee, 202 So.2d 681 (La.App., 4th Cir., 1967), writ refused 251 La. 65, 203 So.2d 86 (1967).

Under the circumstances appellant’s attempt to contact the Committee Secretary is of no moment. The Chairman being available the law requires that appellant qualify with the Chairman.

The Judgment is affirmed at appellant’s cost.

Affirmed.


source: Caselaw Access Project

author: SHORES, Justice.

license: Public Domain

text:
    B. H. KLEIN and/or B. H. Klein Realty Corp., et al., etc. v. MR. TRANSMISSION, INC.
    SC 773.
    Supreme Court of Alabama.
    Aug. 21, 1975.
    Miller, Hoffmann & Sundock, Montgomery, for appellants.
    George H. B. Mathews, Montgomery, for appellee.
   SHORES, Justice.

This is an appeal from a judgment entered on a jury verdict in the amount of $15,800 in favor of Mr. Transmission, Inc. (plaintiff) against B. H. Klein Realty Corporation (Klein) and Andrew & Dawson, individually and as partners doing business as a general building contractor. Roosevelt Jackson was also a defendant. He had entered into a subcontract with Andrew & Dawson to finish the wall after the original subcontractor walked off the job when the wall was approximately 70% complete. The jury returned a verdict in his favor.

Andrew & Dawson had contracted to build an addition to a building owned by Klein. Plaintiff occupied a building located directly north of the new addition and separated from it by approximately one and one-half feet. The north wall of the addition to the Klein building was 115 feet across and three stories high. It consisted of a brick veneer, 2-inch air space, and concrete block.

As of the end of work on May 23, 1973, the third floor portion of the north wall was tied in to the remainder of the building as follows:

At the floor level, the brick and block were resting on the floor. The brick had been “raised” all the way to the roof; and the block had been “raised” all the way to the ceiling. At the roof level, the brick was connected to the roof by dovetail anchors. The brick and block were connected to each other by metal ties. Pursuant to the specifications, these metal ties were to be spaced at 16-inch intervals, vertically. The north and east walls connected at the northeast corner of the addition. The west wall was complete through the second floor level, thus there was no connection for the north wall at its northwest corner. The north wall of the new addition collapsed on the night of May 23, and the third floor portion of the wall fell through the roof of the building occupied by the plaintiff.

Plaintiff’s suit charged negligence in the construction of the wall in failing to brace it during the construction, and in failing to follow the specifications with regard to placing metal ties at 16-inch intervals.

The action was defended on the assertion that there was no negligence in failing to brace the wall; that it was constructed in accordance with procedures normally followed in the construction of buildings in Montgomery; and that the wall fell not because of any negligence on the part of the defendants, but because of an act of God. According to Taylor Dawson, the fall was caused by “A wind that you couldn’t anticipate and couldn’t protect against.”

Andrew & Dawson, on appeal, argue that the trial court erred in denying the motion for directed verdict offered by them, because it is contended that the record is devoid of any evidence that the wall collapsed by virtue of any negligence on their part.

There is no question that the wall fell and damaged the building occupied by the plaintiff. What caused it to fall was a jury question. Each side offered evidence to support its position. From the plaintiff’s side came testimony from an expert witness, a structural engineer, who testified that he examined the construction site on May 24, 1973, not at the request of the plaintiff but at the request of the owner of the damaged building; and that, based upon his examination of the building specifications for the addition and an examination of the building itself, it was his opinion that the wall should have been braced. The witness testified:

“A In my opinion, given the circumstances that I know and the peculiar situation of this wall, I think it should have been braced.
“Q Tell the jury what you mean by peculiar situation relating to this wall. What was unique about this wall ?
“A As has already been described the wall is a hundred and fifteen feet long;, or was a hundred and fifteen feet long, and eleven feet, five inches high. It did not have any intersecting walls or partitions except, of course, the east wall, northeast corner. . . .”

This witness also testified:

“A At the stage of construction, it was not supported at the northwest corner, because of the absence of the west wall at the third floor. The wall was in effect supported only at the floor and, if completed, only at the roof. And I would — my evaluation as a structural engineer, I would think, it would be very weak in its structural strength in this condition until it had attained a full age as far as curing of the wall is concerned.”

He defined curing as meaning that it takes a 28-day period for mortar to obtain its designed strength; and that the mortar in this wall had not obtained that strength, the last part of the wall having just been completed prior to the time the wall fell.

The defendants introduced evidence which tended to show that the building was constructed in accordance with standard acceptable practice for construction, and assert that there was no evidence that any improper construction in the wall itself contributed to its collapse.

However, the building specifications were admitted into evidence and provide in part:

“THE CONTRACTOR MUST TAKE ALL NECESSARY PRECAUTIONS TO INSURE THE SAFETY OF THE WORKMEN EMPLOYED ON THE JOB, TO PREVENT DAMAGE TO PERSONS AND PROPERTY NOT CONNECTED WITH THE JOB AND TO PREVENT THE OCCURRENCE OF ANY ACCIDENTS WHATSOEVER DURING THE PROGRESS OF THE WORK.
“THE CONTRACTOR . . . SHALL PROTECT AND CARE FOR SURROUNDING BUILDINGS, SHOULD THERE BE ANY DANGER TO THEM CAUSED BY THE WORK.’2

Additionally, Mr. Dawson, one of the contractors, testified that the Southern Standard Building Code applies to construction in Montgomery; and, although there was disagreement among the parties as to whether certain provisions applied, it was conceded by Mr. Dawson that Section 2101.10 did apply to construction in Montgomery. That section provides:

“When a building or structure is to be carried above the roof of an adjoining building, protection for the skylights and roof of such adjoining building shall be provided, at his own expense, by the person constructing or causing the construction of such building or structure; provided that if the owner, lessee or tenant of the adjoining building should refuse permission to have the roofs and skylights protected, the responsibility and expense for the necessary protection shall devolve on the person refusing such permission.”

Mr. Dawson testified that he had not sought permission, nor had the owners of the adjoining buildings refused to allow him, to protect the roofs of their buildings.

Roosevelt Jackson’s pretrial deposition was entered in evidence. It disclosed that when he took over the job of finishing the wall, the brick was approximately three feet short of the third floor and the concrete block was up to the third floor. When the wall fell on May 23, the block had been up to the third floor ceiling about two days. The brick had been "topped out” on May 23. Jackson said his responsibilities as masonry subcontractor were defined by his contract with the general contractor; he was not responsible for bracing the job; and, in his experience, bracing was never the subcontractor’s responsibility.

“Q Did anyone tell you to brace this wall as you were building it ?
“A No, no one told me to brace it. A subcontractor don’t brace walls no way.
“Q I see. You do what the plans and specifications and what the general contractor tell you to do in effect
“A I gets a contract from the general contractor, and it states that I’m supposed to do in my contract. It tells what I supposed to furnish and what I supposed to do. I’m supposed to furnish the mortar box, the mortar burgers, wheelbarrows, mortar mixes, saws where if necessary, and whatever necessary for me to lay the brick with. But I don’t furnish no mortar mix, no material at all, and I don’t brace. . . . ”

Jackson’s testimony was confirmed by Mr. Dawson, who said he hired Jackson to finish the masonry work and furnished Jackson with all of the raw materials.

There was evidence from which the jury could have concluded that the fact that the metal ties were not spaced at 16-inch intervals on all occasions by Jackson was not a contributing factor to the wall’s collapse.

We find no error in the court’s failure to grant Andrew & Dawson’s motion for directed verdict. Without delineating any further evidence, which we think is unnecessary, suffice it to say that there was a scintilla of evidence, at the least, which required that the case against them go to the jury. They argue in brief that the only testimony that the wall should have been braced came from the structural engineer, whose testimony is set out above, and that there was also evidence that the wall was constructed in accordance with the accepted practice for contractors, and that such practice does not require bracing.

What should have been done is fixed by a standard of reasonable prudence, whether it is usually complied with or not. Roberts v. Kurn, 231 Ala. 384, 165 So. 77 (1936). The court properly submitted the issue to the jury and defined negligence as follows:

negligence means the failure to exercise reasonable or ordinary care, that is such care as is [sic, a] reasonably prudent person would have exercised under the same or similar circumstances. Now, that’s what simple negligence is. In this case, it refers to the construction of a building. So it would have to be the same as a reasonable, prudent contractor in this particular area would have exercised under the same or similar circumstances.
“If you believe that the Defendants exercised that degree of caution, you might say, then you would have to find for the Defendants. If you agreed that they did not exercise that degree, then, of course, you could find for the Plaintiff. ...”

The trial court, in its charge, made it clear to the jury that the standard of care was what a reasonably prudent person would have done under the same or similar circumstances; and also apprised them that they should consider what a reasonable, prudent contractor in this particular area would have done. We agree with Andrew & Dawson that custom or practice may be considered on the question of due care, but as stated in 65 C.J.S., Negligence, § 16:

“The common usage of a business or occupation is a test of care or negligence, and is a proper matter for consideration in determining whether or not sufficient care has been exercised in a particular case, at least where the conduct in question is not inherently dangerous ; but customary methods or conduct do not furnish a test which is conclusive or controlling on the question, and negligence may exist notwithstanding the conduct pursued or the methods adopted were in accordance with those customarily pursued or adopted.”

Andrew & Dawson next argue that the trial court erred in refusing to grant their motion for a new trial. It is their contention that the jury’s verdict is contrary to the great weight of the evidence. As we have often said, the decision of a trial court in refusing to grant a new trial on the ground of insufficiency of the evidence will not be set aside on appeal unless, after allowing all reasonable presumptions in favor of the correctness of the ruling, the preponderance of the evidence clearly convinces us that the verdict is wrong and unjust. Woods v. Laster, 291 Ala. 139, 279 So.2d 121 (1973); Vinyard v. Duck, 278 Ala. 687, 180 So.2d 522 (1965), and cases collated at Appeal and Error Key. No. 1005(4), Ala. Dig.

The last argument made by Andrew & Dawson is that the verdict of the jury is inconsistent with the law and the evidence, in that the defendant Roosevelt Jackson was found not guilty of negligence; and that absent such a finding, the jury could not find that Andrew & Dawson were guilty of negligence.

There is no error to reverse here. There is nothing inconsistent with the verdict in finding for Jackson and against Andrew & Dawson, if the jury believed, as apparently it did, that the wall fell because it was not properly braced. There was no evidence suggesting that Jackson was responsible for bracing the wall. One of the theories advanced by the plaintiff for the wall’s collapse was that it was not built according to the specifications, in that the metal ties were not always spaced 16 inches apart, and at least two were found to be spaced 24 inches apart after Jackson commenced his work. However, there was alsp evidence that this failure was not a contributing factor in the collapse of the wall. Evidently, the jury believed this testimony.

The judgment in favor of the plaintiff and against Andrew & Dawson is affirmed.

We turn now to the position taken by Klein. At the close of the evidence, Klein asked for the directed verdict. The refusal of the court to grant that motion is assigned as error here. We agree that Klein was entitled to a directed verdict in its favor. We have read every word in the record and find that the evidence is without conflict that Klein, as owner, entered into a contract with Andrew & Dawson whereby Andrew & Dawson agreed to construct an addition to the Klein building. Andrew & Dawson were not agents of Klein. They were independent contractors. This state has long adhered to the proposition that the owner is not liable to third persons for the negligence of such independent contractors, absent certain exceptions which are not material here. Dwight Mfg. Co. v. Vaughn, 203 Ala. 462, 83 So. 327 (1919); Scoggins v. Atlantic & G. P. Cement Co., 179 Ala. 213, 60 So. 175 (1912).

The judgment against Klein, is therefore, reversed and rendered.

In all other respects, the judgment appealed from is affirmed.

HEFLIN, C. J., and MERRILL, MADDOX and JONES, JJ., concur.


author: FAULKNER, Justice.

text:
    Carolyn GERMAINE et al. v. L. L. DELAINE et al.
    SC 1140.
    Supreme Court of Alabama.
    Aug. 21, 1975.
    Atchley, Atchley & Cox, Chattanooga, Tenn., Erskine R. Lindsey and Hogan, Smith & Alspaugh, Birmingham, for appellants.
    Grady W. Agee, Henry L. Klein, Memphis, Tenn., Pruitt & Pruitt and W. Roscoe Johnson, III, Livingston, Powell Lipscomb, Bessemer, for appellees.
   FAULKNER, Justice.

This is an appeal from a decree of the Circuit Court of Sumter County, holding that an instrument between Sadie T. Phelps and Mary E. Hill, on 13 February, 1963, created a joint tenancy with right of survivorship. We affirm.

Because the construction of the deed is the principal issue, we show it in its entirety:

“STATE OF ALABAMA "I

COUNTY OF SUMTER J

“KNOW ALL MEN BY THESE PRESENTS: That this Indenture made and entered into on this day by and between Sadie T. Phelps, party of the first part, and Mary E. Hill, .party of the second part, WITNESSETH:

“THAT, WHEREAS, the said party of the first part owns and is in possession of a tract of land located in Sumter .County, Alabama, which will be hereinafter described. The party of the second part is a cousin of the party of the first part, and the parties hereto have grown up together, are closely associated and devoted to each other. It is the desire of the party of the first part that the party of the second part share with her in the ownership and possession of the said hereinafter described property, and that the title thereto pass to the survivor, in fee simple, at the death of the other.

“NOW, THEREFORE, the said party of the first part, for and in consideration of the love and affection which the said party of the first part has for the said party of the second part, the mutual benefits to be derived from the execution and delivery of these presents, and the sum of ONE AND NO/lOO DOLLAR, cash to her in hand paid by the said party of the second part, the receipt of all of which is hereby acknowledged, has granted, bargained, sold and conveyed, and does hereby grant, bargain, sell and convey unto the said party of the second part, such interest as is appropriate for the said parties hereto to own, have and hold the said hereinafter described land equally, jointly, as tenants in common, with equal rights and interest in said land, and to the survivor thereof, in fee simple, said land being situate, lying and being in the County of Sumter, State of Alabama, and particularly described as follows, to-wit:

“The E i/¿ of Section 11; The W ^ of W 1/2 of Section 12; The W 1/2 of the W Y2 of E 1/2 of Section 13; The NE E 14 of NW y4 and NE ¡4 of SE 14 of Section 14, all in Township 16 North, Range 4 West, containing 1240 acres, more or less.

“Together with all and singular the tenements, hereditaments, rights, ways, privileges and appurtenances thereunto belonging or in anywise appertaining.

“TO HAVE AND TO HOLD the same unto the said parties hereto, equally, jointly, as tenants in common, with equal rights and interest for the period or term of their lives, and to the survivor thereof at the death of the other.

“IN TESTIMONY WHEREOF, the said parties hereto have hereunto set their hands and seals on this the 13 day of February, 1963.

Sadie T. Phelps_(SEAL)

Party of the First Part

Mary E. Hill_(SEAL)

Party of the Second Part”

We read the granting clause as creating a joint tenancy, in compliance with § 19, Title 47, Code of Alabama. Section 19, as amended, recognizes joint tenancy, with right of survivorship in realty and personalty. The statute requires intent of survivorship expressed in the instrument of conveyance, and eliminates common law unity of time. Nunn v. Keith, 289 Ala. 518, 268 So.2d 792 (1972).

Sadie T. Phelps did not convey to herself and Mary E. Hill, but we are of the opinion the intent is clear, she created a joint tenancy, with right of survivorship, and no arbitrary rule of construction is required. Camp v. Milam, 291 Ala. 12, 277 So.2d 95 (1973). The statutory words, “and in which instruments it clearly appears that the intent is to create such a survivorship . . . ” is applicable in this case.

The remaining issue is whether Sadie T. Phelps was of sound mind when she signed the conveyance. On conflicting evidence, the trial judge found she was. Following the holdings of numerous decisions of this court on the presumption of correctness of the trial judge in ore tenus hearings, we do not disturb his findings on this issue. Our review of the evidence does not show he was palpably and clearly wrong.

Affirmed.

HEFLIN, C. J., and BLOODWORTH, ALMON and EMBRY, JJ., concur.


author: MERRILL, Justice. JONES, Justice

text:
    Patricia M. HERRICKS v. The MUTUAL LIFE INSURANCE COMPANY OF NEW YORK, a corporation.
    SC 1157.
    Supreme Court of Alabama.
    Aug. 21, 1975.
    James L. Shores, Jr., Birmingham, for appellant.
    James W. Gewin, Birmingham, for ap-pellee.
   MERRILL, Justice.

Patricia M. Herricks brought suit to recover the proceeds of a life insurance policy on her deceased husband, Douglas C. Herricks, Jr. She appeals from a summary judgment rendered in favor of the defendant, The Mutual Life Insurance Company of New York (MONY).

Herricks had worked in insurance business many years. According to plaintiff’s deposition, her husband once worked for MONY but the father of his then wife “started an insurance company and offered Doug a job.”

Herricks applied for the policy in 1969 and its effective date was July 11, 1969. Renewal premiums were payable on each anniversary date. The policy lapsed twice, in July, 1971 and July, 1972.

The policy contained the following “REINSTATEMENT” clause:

“If any premium is not paid by the end of the grace period, and if this Policy has not been surrendered for cash, it may be reinstated at any time within 5 years after the due date of the premium first in default upon (1) evidence satisfactory to the Company of the Insured’s insurability and (2) payment of all overdue premiums and payment or reinstatement of any indebtedness to the Company, together with payment of a compound interest on such premiums and indebtedness at 5% per year.” (Emphasis added.)

On each occasion, there was no premium payment within the 30-day grace period, and it was necessary for Herricks to execute an application for reinstatement. These applications were executed on October 16, 1971 and September 23, 1972. Her-ricks died on August 9, 1973, as a result of a hepatic coma brought on by cirrhosis of the liver. MONY subsequently rescinded the policy, Tit. 28, § 6, Code 1940, because of alleged misrepresentations made by Herricks in the applications for reinstatement.

Question No. 6 in the two applications for reinstatement appeared as follows:

“6. Are you, so far as you know:
a) In impaired physical or mental health ?
b) Under any kind of medication or on any diet ?”

Herricks responded “No” to both parts of the question on both applications for reinstatement. It is undisputed that the answers on both applications for reinstatement were in Herricks’ handwriting and that he prepared them and delivered or mailed them to MONY’s agent.

Dr. Robert L. Whitten, however, testified in his deposition that he observed Mr. Herricks on October 1, 1971, that Herricks was suffering from cirrhosis of the liver, that he placed Herricks on a strict diet, and that he informed him that he, Her-ricks, had a serious illness which could be fatal and he should “never, ever take another drink as long as he lived.”

Summary judgment is properly granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. ARCP 56(c).

Plaintiff contends that there is a genuine issue of material fact as to whether MONY had such knowledge of Herricks’ alcoholism as to prevent it from relying on Herricks’ misrepresentations as a defense; and that the credibility of MONY’s agent, Richard S. Bullock, Sr., who handled the original application and the two applications for reinstatement, is put in issue by the plaintiff’s counter-affidavit of Clarence E. Bishop, Jr.

Bullock’s affidavit, filed August 15, 1974, reads in part as follows:

“ * * * At the time Mr. Herricks executed each of these applications for reinstatement he denied any ‘illness, disease or injury’ within the five years preceding the date of the respective applications. He also denied, in each application for reinstatement, any consultation, examination or treatment by any physician; and he denied any impairment to his physical or mental health, and denied that he was under any medication or on any diet on each occasion.
“At the times that Mr. Herricks, Jr., executed each of the applications for reinstatement I was unaware that he was an alcoholic; I was unaware that he was being treated for his alcoholism in October 1971; and I was unaware that he had cirrhosis of the liver at the time he executed either of the applications for reinstatement. Douglas C. Herricks, Jr. who was personally known to me, never told me of his problem with alcoholism; he never told me of his liver condition; and I knew of neither of these conditions at the times Mr. Herricks executed the applications for reinstatement. I have made inquiry of the employees of this office and have been assured that no person was familiar with Mr. Herricks’ alcoholism, either at the time he executed the application for coverage originally in 1969, or at the times he executed the applications for reinstatement in 1971 and 1972. Moreover, none of the employees of this office and no representative of MONY to my knowledge was aware that Mr. Herricks was suffering from cirrhosis of the liver prior to his death.”

Bishop’s counter-affidavit stated that he became acquainted with Herricks in 1956. They were both in the insurance business. Bishop worked for Protective Life Insurance Company. Bishop later (in 1965 and 1966) employed Herricks for a time and sent him to Indiana. All of this time, Herricks “continued his drinking.” The only statement in Bishop’s affidavit that forms a basis for plaintiff’s argument that Bullock, MONY’s agent, knew that Her-ricks was an alcoholic is paragraph 7, which reads:

“Based upon my years of experience in the life insurance business, it is my opinion that all persons engaged in selling life insurance who were acquainted with Douglas C. Herricks, Jr., were aware of and knew of his problem with alcohol and the affect that it had upon his insurability.”

That statement does not name Bullock, shows no circumstances under which Bullock had opportunity to learn of Her-ricks’ “problem with alcohol” and, without more, it would not be admissible in evidence, and is far too general to raise a genuine issue of material fact as to knowledge on the part of Bullock or to his credibility.

We need not, however, reach either of plaintiff’s contentions. Even assuming that Bullock knew that Herricks was an alcoholic, and that he had cirrhosis of the liver, MONY was nevertheless entitled to the summary judgment.

The rule in this state is that ordinarily, knowledge by the local agent authorized to solicit insurance, take and forward applications, and collect premiums, of misrepresentations by the applicant, is not available as a waiver of such breach in the face of a stipulation to the contrary in the policy. First Nat. Life Ins. Co. of America v. Rector, 225 Ala. 116, 142 So. 392; North Carolina Mutual Life Ins. v. Kerley, 215 Ala. 100, 109 So. 755; Jones v. Liberty Nat. Life Ins. Co., 35 Ala.App. 52, 47 So.2d 222, affirmed 254 Ala. 111, 47 So.2d 227.

The evidence established that Bullock was only a soliciting field underwriter. MONY could not be charged with facts known to such an agent but not contained in the original written application or application for reinstatement and, as a result, could not be held to have waived the misrepresentations of Herricks. As pointed out, post, in this opinion, there was no evidence by affidavit or otherwise to show that MONY or any of its agents had knowledge of the misrepresentations.

Plaintiff argues another contention. On the second page of the original policy application appeared the following questions:

“4. Have you or anyone else proposed for insurance, so far as you know, ever been treated for or had indication of (underline applicable item):
‡ >}* * % % *
d) Heart trouble, heart murmur, high blood pressure, or any blood or blood vessel disorder ?
* * * * * *
p) Alcoholism or drug habit ?”

Herricks responded “Yes” to question 4(d) and stated that he underwent a “Co.Exam” by “Dr. Gilbert Douglas—B’ham. Ala.” Herricks responded “No” to question 4(p).

At the bottom of the second page, the decedent signed an authorization for MONY to obtain any desired information from any physician who observed or treated him.

Plaintiff insists that MONY would have discovered Herricks’ alcoholism had it made an inquiry of Dr. Douglas about Herricks’ answer to the “heart trouble” question in the original policy application.

While it is true that Dr. Douglas’ records do disclose that Herricks was suffering from alcoholism at the time of the issuance of the policy in 1959, Herricks could not place the burden of discovering his alcoholism on MONY by making the “heart trouble” disclosure. There was absolutely nothing in either of the applications of October 16, 1971 or September 23, 1972 for “REINSTATEMENT WITHOUT EXAMINATION” to indicate that Herricks was an alcoholic. In addition to the negative answers shown to question No. 6, supra, he also answered two of the inquiries in question No. 5 “ * * * since the date of issue of the above policy * * * have you ever: * * * (b) Had, so far as you know, any illness, disease or injury?” and “(e) Consulted or been examined or treated by any physician or practitioner?” by checking the “No” column.

It was also undisputed that these misrepresentations by Herricks materially increased the risk of loss to MONY; that the misrepresentations were relied upon by MONY; that had Herricks’ true condition been known, the policy would not have been reinstated on either occasion, and that when Herricks’ true condition was discovered, the beneficiary was properly notified that the policy had been cancelled.

The undisputed evidence is that MONY knew nothing of Herricks’ true medical history prior to his death. MONY submitted the affidavit of John D. Eisner, an attorney associated with MONY. Item 10 of that affidavit appears as follows:

“10. That Mutual between the dates of August 9, 1973 and October 15, 1973 obtained from the University of Alabama Hospital, Dr. Whitten, Dr. Gilbert Douglas, Jr., and the Jefferson-Blount-St. Clair Health Authority copies of certain medical records of the deceased which disclosed — for the first time — Mr. Her-ricks’ true medical history including treatments for liver disease in October and November, 1971; that Mutual thereafter promptly rescinded the policy and fully refunded to Plaintiff all premiums of reinstatement made by the deceased. * * * ”

Title 28, § 6, Code 1940, applicable in the instant case, provided:

“No written or oral misrepresentation, or warranty therein made, in the negotiation of a contract or policy of insurance, or in the application therefor or proof of loss thereunder, shall defeat or void the policy, or prevent its attaching, unless such misrepresentation is made with actual intent to deceive, or unless the matter misrepresented increase the risk of loss.”

This court said in Liberty National Life Ins. Co. v. Hale, 285 Ala. 198, 230 So.2d 526:

“An insurance company is entitled to all material information bearing upon the obligation it undertakes in issuing a policy. As stated in New York Life Ins. Co. v. Horton, 235 Ala. 626, 180 So. 277, 282:
“ ‘A candid and truthful answer would have enabled the insurer to discover the true facts with reference to the insured’s health. Insurance companies are entitled to candid and truthful answers, and when such candor is withheld and involves matters material to the risk, no just complaint can be raised, when, in after investigations, the falsity is discovered and the policies issued in reliance upon the truthfulness of the statements, are avoided.’ ”

It was also held in Horton, supra, that Tit. 28, § 6, applied equally, whether it related “to the original policy, or to a renewal, revivor, or reinstatement of the same.”

The action taken by the trial court was not abrupt or hasty. The suit was filed in October, 1973, and after answer denying liability, depositions were taken December 18, 1973, interrogatories filed March 18, 1974 and answered May 28, 1974, and another deposition was taken on March 27, 1974. The motion for summary judgment, with supporting depositions, affidavits and documents, was filed August 15, and plaintiffs counter-affidavit was filed November 8. The cause was argued on November 15, 1974 and the motion for summary judgment was granted. Plaintiff filed a motion to set aside the judgment and the hearing was set for January 25, 1975. Appeal was taken on February 13, 1975.

We find no reversible error in the granting of the motion for summary judgment by the trial court because “there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” ARCP 56(c); Twine v. Liberty National Life Ins. Co., Ala., 311 So.2d 299.

Affirmed.

HEFLIN, C. J., and MADDOX and EMBRY, JJ., concur.

JONES, J., concurs in the result.

JONES, Justice

(concurring in the result) :

I have had considerable difficulty with this case. I do not agree with that portion of the opinion which holds that, even if Bullock knew that Herricks was an alcoholic and that he had cirrhosis of the liver, MONY was still entitled to a summary judgment. I concur in the result, however, because I agree that all admissible portions of Bishop’s affidavit are insufficient to raise even an inference to rebut Bullock’s denial of any knowledge of Herrick’s condition.


author: MERRILL, Justice.

text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, a corporation v. Martin N. ANDERSON.
    SC 1106.
    Supreme Court of Alabama.
    Aug. 21, 1975.
    Rehearing Denied Sept. 11, 1975.
    Rives, Peterson, Pettus, Conway & Burge, and Edgar M. Elliott, Birmingham, for appellant.

      Sirote, Permutt, Friend & Friedman and William G. West, Jr., Birmingham, for appellee Martin N. Anderson.
    William M. Warren, Jr., Birmingham, for appellee The Travelers Ins. Co.
    Collins & Johnston, Birmingham, for Alva E. Killian.
   MERRILL, Justice.

This appeal is from a decree in a declaratory judgment proceeding in which the trial court held that State Farm Mutual Automobile Insurance Company is liable to defend Dr. Martin N. Anderson in a law suit arising out of a collision of Anderson’s Lincoln Continental with another automobile on November 1, 1973.

Dr. Anderson’s bill of complaint alleged as a basis for finding that there was coverage the fact that the defendant, with knowledge that the accident had occurred, negotiated and deposited plaintiff’s check for a premium admittedly drawn and mailed after the expiration of the policy and received after the loss. Such conduct, it asserted, constituted a waiver of defendant’s right to deny coverage.

The answer of defendant State Farm admitted the existence of a policy, that the accident occurred, that plaintiff gave notice of the same to the defendant, that the check was negotiated and deposited after knowledge of the accident and after the expiration of the policy, but denied that the premium was mailed prior to the accident or that it was accepted in payment of a past due premium. It further averred that the check was accepted to reinstitute the lapsed policy as of November 2, 1973, subsequent to the accident.

Most of the facts are not disputed. Dr. Anderson’s policy was to expire on October 10, 1973 and he received a premium notice in early September. The gross premium was $112.90, but with a dividend of $6.80, the amount due was $106.10. Dr. Anderson decided not to pay it then because he did not “have any money in the bank.” He “presumed” he had a 30-day grace period but the policy did not so provide. A check dated October 29 in the amount of $106.10 was mailed to State Farm. (The date of mailing is in dispute.) The accident occurred in the evening of Thursday, November 1. The envelope containing the check was postmarked November 2nd and received by State Farm on November 3. State Farm had been notified of the accident. On November 7, State Farm negotiated and deposited the check and later in the month sent Dr. Anderson a new policy effective from November 3, and billed him for the $6.80 dividend which had reduced the premium. Premiums are due each six months and they are not paid to the agent but are mailed to the regional office in Birmingham.

Kenneth Dean, a witness for Dr. Anderson and a resident of Snead, Alabama, testified that he was stopped at a red light in Homewood, that Mr. Killian (the plaintiff in the damage suit against Dr. Anderson), was just behind him and the Anderson car hit Killian’s, and the Killian car rammed the rear of Dean’s car. The next morning, Dean called State Farm and talked with a man named George — (he was not sure of the last name) and asked if Dr. Anderson’s car was insured and, after some minutes, the man stated that “Dr. Anderson was covered.” He said he was told to take it to Jim Skinner Ford and have it fixed. He later called the Roebuck office of State Farm and was again told that Dr. Anderson was covered, to take his car to Jim Skinner Ford and to “rent you a car if you need to.” Dean had not sued Anderson because his damages, $10,000.00 personal injuries and $2,000.00 automobile, had been paid under the uninsured motorist provision of his own policy.

Mrs. Anderson, who operates a nursing home with her husband, testified that she signed the check on October 29, and mailed it that afternoon at Five Points South.

George Gomperts testified that he was agency manager for State Farm and had been for 17 years; that he had twelve agents under his supervision, one of whom was Leon Waters, who handled the Anderson policy; that he and Dr. Anderson had been personal friends for more than 10 years; that Dr. Anderson had notified him of the accident on the morning of November 2; and that he had never talked to Kenneth Dean.

The trial court, in its opinion, stated in part:

“ * * * The pivotal question for determination by the Court is that of whether or not the negotiation and depositing of Plaintiff’s check by State Farm constituted a waiver or estoppel which would effect a binding obligation on State Farm as provided in its policy. Under the attendant facts set forth in the trial of this cause, this Court finds that the acceptance by State Farm of the policy premium after the aforesaid loss occurred does constitute a waiver of the delinquency in payment and amounted to an intentional relinquishment of any right which State Farm might have had to the denial of coverage under its policy.”

A motion for a new trial was overruled.

In Mobile Life Insurance Co. v. Pruett, 74 Ala. 487 (1883), it was said:

“A receipt of a premium, after a breach of the condition for its payment has occurred, is, doubtless, a waiver of the forfeiture. The payment must however, be made to the insurer, or to an agent having authority to receive it. And it must be made fairly and honestly; there must be no misrepresentation or concealment of material facts known to the party making the payment, of which the insurer can not reasonably be presumed to have knowledge. * * *”

In Life & Casualty Ins. Co. v. Eubanks, 19 Ala.App. 36, 94 So. 198, the Court of Appeals said:

“As a general rule, a contract of insurance is to be strictly construed against the insurer, and is to be liberally construed in favor of the insured, and, with respect to forfeitures, the courts will adopt that construction most favorable to the insured, and it may be said that forfeitures for nonpayment of premiums are not favored. Manhattan Life Ins. Co. v. Parker, 204 Ala. 313, 85 So. 298; Mutual Life Ins. Co. of New York v. Lovejoy, 201 Ala. 337, 78 So. 299, L.R. A.1918D, 860.
******
“The right to insist upon a forfeiture of a liability under a contract being a right which may be waived by the party in whom the right resides, such waiver may be implied from conduct inconsistent with the intention to exercise it, for neither party to a contract may receive the benefits accruing thereunder and avoid the liabilities created thereby. Romanoff Co. v. Cameron, 137 Ala. 217, 33 So. 864.”

In Washington Nat. Ins. Co. v. Scott, 231 Ala. 131, 164 So. 303, this court stated:

“Probably there is no principle of insurance law more firmly settled, nor better grounded in justice and reason, than that an insurer, who receives and retains premiums, the very consideration for carrying the insurance risk, with knowledge of facts which, under stipulations for his benefit, would, in the absence of such knowledge, empower him to treat the policy as having never been in force, or as being no longer in force, will be held to have waived such stipulations. Waiver, strictly speaking, is a matter of intent. But, in such case, no proof of actual intent is required. Any other intent, in such case, would work a positive wrong or fraud on the insured. The law charges the insurer with the intent to waive under the doctrine of estoppel.”

The above paragraph is quoted with approval in Alabama Farm Bureau Mutual Casualty Ins. Co. v. Hicks, 272 Ala. 574, 133 So.2d 221. The trial court cited Hicks, and both sides on this appeal argue that Hicks supports their contentions. A majority of this court in Mutual Savings Life Ins. Co. v. Noah 291 Ala. 444, 282 So.2d 271, concurred in the following statement:

“* * * In the case of Alabama Farm Bureau Mutual Casualty Insurance Company v. Hicks, 272 Ala. 574, 133 So.2d 221, this court held that retention by an insurer of a past due premium payment, with knowledge that a loss was sustained during the defaulting period, constituted a waiver of the condition that premiums paid late did not cover losses sustained during the period of default and rendered insurer liable for such loss. Though Hicks involved an automobile liability policy, the basic principles found therein are applicable to the instant case. * * * >>

There is no question here but that the loss was sustained during a defaulting period, and that the check was payment of a past due premium, and that an authorized agent of State Farm was notified of the loss before the check was negotiated and paid after State Farm had learned of the loss.

We cannot agree with the statement in State Farm’s brief that “The facts controlling the issues on this appeal are not in dispute.” Several inferences and questions arise from the facts — some favoring the insurer and some favoring the insured.

The trial court saw and heard the witnesses and it decided a very close question in favor of the insured. In Daugherty v. Gulf Shores Motel, Inc., 292 Ala. 252, 292 So.2d 454, this court said:

“Where the evidence is heard orally before the trial court, the finding of the court has the effect of a jury’s verdict and will not be disturbed on appeal unless plainly erroneous. And we must affirm the trial court’s decree if fairly supported by credible evidence under any reasonable aspect, regardless of what might be our view of the evidence. Lott v. Keith, 286 Ala. 431, 241 So.2d 104; Norton v. Norton, 280 Ala. 307, 193 So. 2d 750.”

Affirmed.

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


author: BLOODWORTH, Justice.

text:
    Eddie L. MOON v. Dr. Jack R. NOLEN and Baptist Memorial Hospital.
    SC 916.
    Supreme Court of Alabama.
    July 31, 1975.

      Ralph E. Coleman, Birmingham, for appellant.
    Dortch, Wright & Ford, Gadsden, for appellees.
   BLOODWORTH, Justice.

Appellant, Eddie L. Moon, brought this medical malpractice action against defendants, Dr. Jack Nolen and Baptist Memorial Hospital, seeking to recover for the death of appellant’s premature infant. The Circuit Court of Etowah County entered judgment on a jury verdict for defendants and plaintiff has appealed to this Court. We affirm.

About twenty-four weeks into her pregnancy, appellant’s wife was admitted to Baptist Memorial Hospital where, under the care of Dr. Nolen, she gave premature birth to an infant male who weighed only two pounds, three ounces (996 grams), and who suffered from severe respiratory distress. Dr. Nolen attempted to aid the infant’s respiration by means of skin stimulation and artificial respiration, but no oxygen was administered in the delivery room. Dr. Nolen pronounced the infant dead and the infant was covered with a blanket and taken to the “suspect nursery,” a room used to isolate deceased infants and infants with contagious diseases. Dr. Nolen then informed the family that the infant had died. When the grandparents were taken' to the “suspect nursery,” at their insistence, to see the infant, they discovered he was still alive. The infant was later removed to the regular nursery where oxygen was administered.

Hospital personnel testified that the child was taken to the regular nursery at 4:35 p.m., as recorded in the hospital record. However, the infant’s grandparents testified that he was not removed from the “suspect nursery” until approximately 5:35 p.m. An examination of the hospital record shows that the original entry was “5:35” and that a “4” had been written over the “5.” A nurse testified she made an error in the original entry and corrected it.

At 6:00 p.m., hospital personnel summoned a pediatrician, Dr. Griffith. The infant was not attended by a physician from the time it left the delivery room until Dr. Griffith’s arrival at 6:15 p.m. Dr. Griffith found the child suffering from a severe acid imbalance in the blood caused by lack of oxygen resulting from the infant’s respiratory distress. Dr. Griffith testified that he prescribed and administered the drug sodium bicarbonate in an attempt to remedy the child’s acid imbalance. The hospital record, however, indicates that the infant was administered magnesium sulfate. (Magnesium sulfate is commonly prescribed to achieve results the opposite of those for which sodium bicarbonate is commonly prescribed.) A nurse testified that magnesium sulfate was not actually given the child but that its entry in the hospital record was merely an error. (Testimony at trial indicated that in premature deliveries the obstetrician sometimes advises the parents to obtain a pediatrician to be present at the delivery. In this case, however, that advice was not given.)

After initial improvement in response to Dr. Griffith’s treatment, the infant’s acid imbalance reached a level inconsistent with life and the infant died the next day, within 24 hours of its birth.

After a jury verdict for defendants, appellant filed a motion for new trial which the trial court denied. On this appeal, appellant asserts the grounds set out in his motion for new trial as the basis for a reversal of the judgment of the trial court.

T. Appellant contends that the trial court committed reversible error in excluding plaintiff’s exhibit number 3, a photograph depicting the deceased infant in its casket. Appellant offered the photograph as bearing on a material fact in issue, the infant’s physical condition. It is beyond dispute that the infant’s physical condition was a central issue in the trial court. Dr. Nolen’s defense was based on the contention that his treatment was the proper care and treatment to be accorded the infant and was justified in view of the child’s weight and gestational age; that infants of that weight and age were not usually expected to survive; and that no support is normally given to premature infants with such a poor chance for survival. Dr. Griffith testified, however, that the determination to place a premature baby aside without support varies with the general physical condition of the child, as well as its age and weight. Appellant contends that the photograph was relevant to the jury’s determination respecting Dr. Nolen’s care and treatment of the infant, that it would have impressed upon the jury the fact that the child was normal — that he bore the physical appearance of humanness and was not merely “a blob of protoplasm.”

A photograph is “generally relevant and admissible for the purpose of explaining and applying the evidence” when it enables the jury “to have a better understanding of a person, place, object or conditions.” Thompson v. Magic City Trucking Service, 275 Ala. 291, 296, 154 So.2d 306, 311 (1963).

Nevertheless, the application of the rule to a particular photograph offered for admission remains a matter within the sound discretion of the trial court. The trial judge is vested with discretion not only in his determination as to the preliminary proofs offered to identify the photograph or to prove that the photograph is an accurate representation of the objects it purports to portray (International Union, etc. v. Russell, 264 Ala. 456, 88 So.2d 175 (1956), aff'd 356 U.S. 634, 78 S.Ct. 932, 2 L.Ed.2d 1030 (1958)), but also in his determination of whether the picture will aid the jury or tend to confuse or prejudice it. (International Union, etc. v. Russell, supra). The discretion of the trial court in such matters is not reviewable in the absence of a gross abuse of that discretion. Godwin v. Jerkins, 282 Ala. 11, 208 So.2d 210 (1968).

We have examined the photograph in question and find that it justifies its exclusion by the trial court. The photograph is a small one, taken some distance from the casket, showing only the infant’s head, the body being completely covered. The photograph does not illustrate the normalcy of the child’s physical development nor does it provide any reference point from which his size may be judged. Although the photograph was offered to support appellant’s contention that Dr. Nolen was negligent in his judgment as to the infant’s chance for survival, judged as of his condition at birth, the photograph was taken at a time when the child’s appearance was quite different from that as of the time of his birth. Testimony at trial indicated that at birth the child’s head was discolored due to its respiratory problems, this being one of the factors upon which Dr. Nolen made his determination as to the condition of the child. There is some evidence which indicates that at the time this photograph was taken, the infant’s discoloration had disappeared since the body had already been put through the embalming process. In short, the evidence supports the trial judge’s decision to exclude the photograph for the purpose for -which it was offered. We find no abuse of discretion in the exclusion of this exhibit.

2. In the course of appellant’s cross-examination of co-defendant Nolen on the occasion of the taking of his deposition, the following question was posed:

“And whatever changes have been made on the hospital record were made when you first came back to review ?”

The trial court sustained an objection to the question and appellant contends this ruling denied appellant’s right to the “thorough and sifting” cross-examination guaranteed under Title 7, section 443 of our Code.

The scope and extent of cross-examination is a matter reserved for the sound discretion of the trial court. The exercise of discretion in the limitation of cross-examination is not reviewable in the absence of gross abuse. Moody v. Stanfield, 292 Ala. 185, 291 So.2d 301 (1974). Moreover, prejudicial error must be shown. Carlisle v. Miller, 275 Ala. 440, 155 So.2d 689 (1963).

We find no abuse of discretion by the trial court in this instance for at' least two reasons. First, the sustained objection was that “He is asking for a conclusion of the witness.” Opposing counsel specified that their objection was to “the form of the question” and the judge was equally specific, as is evidenced by his explanation, “I am going to sustain the objection; I think it calls for a conclusion.” This ruling left counsel for appellant free to rephrase his question and to pursue the same information. Second, the record does not support the charge that appellant was deprived of a “thorough and sifting” cross-examination. In fact, the record refutes this contention. Appellant read into evidence parts of the witness’ deposition, comprising 38 pages of the record, his cross-examination of the witness comprising 36 pages of the record, and his re-cross-examination comprising 7 pages of the record. The objection in question was the only objection made during the entire course of appellant’s examination of this witness. Thus, it is clear that appellant was not denied an opportunity for a “thorough and sifting” cross-examination of the co-defendant.

Moreover, appellant could have sought the same information from Dr. Nolen himself when the latter took the stand and testified. As this Court wrote in Jordan v. State, 267 Ala. 361, 102 So.2d 4 (1958): “Considering the record as a whole, we do not think there was any abuse of sound discretion in the rulings upon the cross-examination.” 267 Ala. at 365, 102 So.2d at 8.

3. Rule 51 of the Alabama Rules of Civil Procedure provides that a party may not assign error with respect to the court’s charge unless he makes a specific objection to the alleged error before the jury retires. Although appellant did not comply with the requirements of Rule 51, he now seeks a review of certain portions of the court’s charge to the jury. Appellant was given opportunity to preserve his objections to the court’s charge when, at the close of the court’s initial instructions to the jury, the court requested counsel to present their exceptions outside the jury’s presence. Appellant made no exceptions at that time.

The federal case law is to the effect that it is incumbent upon counsel to assert the right to preserve exceptions and that such right may be waived by a failure to so assert. Swift v. Southern Ry., 307 F.2d 315 (4 Cir. 1962); Cosper v. Southern Pac., 298 F.2d 102 (9 Cir. 1961).

Appellant appears to contend, in brief, that the errors presently asserted were sufficiently preserved by counsel’s conversation with the court in chambers. We have carefully reviewed these proceedings and we can nowhere find any objections, or grounds therefor, as specifically required by Rule 51, A.R.C.P., to preserve the alleged error. We conclude that appellant’s failure to properly preserve his exceptions to the court’s charge constitutes a waiver of the alleged error.

4. After several hours of deliberation, the jury requested that it be recharged. At first, the trial court refused this request upon appellant’s objection. After a week-end recess, the court reconsidered the jury’s request and re-charged the jury by reading a transcript of the original instructions. Again, appellant made no specific objection thereto in accordance with Rule 51, A.R.C.P. Appellant, however, did object to the court recharging the jury. Appellant now contends that this repetition of the court’s original charge “re-emphasized” the prejudice to appellant originally injected by the court’s initial charge. In view of appellant’s failure to preserve exceptions to the error allegedly injected during the initial charge, appellant cannot now be heard to complain of the cumulation of such error allegedly caused by the court’s recharge.

In the case of American Pamcor, Inc. v. Evans, 288 Ala. 416, 261 So.2d 739 (1972), this Court recognized the trial court’s discretion in the giving of additional instructions, particularly when done at the request of the jury. We find no merit in appellant’s contention that the court’s re-charge constituted reversible error.

5. Appellant further contends that reversible error was committed in the court’s denial of appellant’s motion for new trial on the grounds that one juror failed to respond truthfully on voir dire. A juror had failed to indicate on voir dire that his wife was currently a patient in the defendant hospital. Appellant’s counsel had asked jurors whether they “have any relationship” with the hospital or “have done business” with it.

Such a denial of motion for new trial by the trial court strengthens the presumption of the correctness of the jury’s verdict. South Highlands Infirmary v. Camp, 279 Ala. 1, 180 So.2d 904 (1965).

In Norris v. Presley, 292 Ala. 155, 290 So.2d 643 (1974), this Court held that the determination of probable prejudice arising out of a juror’s failure to properly respond on voir dire is a matter within the sound discretion of the trial court and is not subject to review in the absence of an abuse of discretion. We find no abuse of discretion under the facts of this case. The evidence before the trial court, if believed, supports his ruling. Specifically, there was evidence before the court to support the proposition that counsel for appellant were speculating on the outcome of the case because one of appellant’s counsel (who was in the same Sunday school class with the juror and was personally acquainted with him) had learned of the juror’s wife’s being in defendant hospital before the trial was over but made no effort to bring the matter to the attention of the court.

Moreover, we think the question as phrased is vague and indefinite in asking as to “relationship” and having “done business” with the hospital. It may not have been clear to the juror that the hospitalization of his wife constituted a “relationship” (a generic term) or amounted to having “done business” (a past occurrence).

Finally, appellant submits that the verdict was contrary to the great preponderance of the evidence. In support of this contention, appellant lists several facts in evidence which strongly suggest that defendants’ negligence constituted a violation of the duty of care owed by them to appellant’s child. However, after having reviewed the record in this case, we find that the tendencies of the evidence most favorable to the defendants support the jury’s verdict in their favor.

We reiterate as we did in Hodges & Company, Inc. v. Albrecht, 288 Ala. 281, 259 So.2d 829 (1972), the holding, viz:

* * * New trial was sought on grounds that the jury’s verdict was not sustained by the great preponderance of the evidence.”
“ ‘ * * * This court has held many times that verdicts are presumed to be correct and no ground of a motion for a new trial is more carefully scrutinized than that the verdict is against the weight of the evidence. Dollar v. McKinney, 267 Ala. 627, 103 So.2d 785. Furthermore, verdicts are presumed correct and the presumption in favor of the correctness of the verdict is strengthened when a new trial is denied by the court. Mintz v. Millican, 266 Ala. 479, 97 So.2d 769. Furthermore, on appeal from a judgment for the plaintiff this court must review the tendencies of the evidence most favorable to the plaintiff allowing such inferences as the jury was free to draw. Jeffrey Mfg. Co. v. Hannah, 268 Ala. 262, 105 So.2d 672.’ Grandquest v. Williams, 273 Ala. 140, 135 So.2d 391 (1961).

“See, 15A Ala.Dig., New Trial, <®=72.

“Moreover, this court has held that,

“ ‘ * * * “the decision of the trial court, refusing to grant a new trial on the ground of the insufficiency of the evidence, or that the verdict is contrary to the evidence, will not be reversed, unless, after allowing all reasonable presumptions of its correctness, the preponderance of the evidence against the verdict is so decided as to clearly convince the court that it is wrong and unjust.”—Cobb v. Malone, 92 Ala. 630, 9 So. 738, 740.’ Southern Railway Company v. Reeder, 281 Ala. 458, 204 So.2d 808 (1967).

“See, 2A Ala.Dig., Appeal and Error, «=>1003.

“[7] We have reviewed the pertinent evidence in this case, and concede that it presents a close case on the facts. However, in view of the presumptions in favor of the trial court’s ruling, as well as the jury’s verdict, we cannot say that ‘the preponderance of the evidence against the verdict is so decided as to clearly convince’ this court that the verdict was wrong and unjust.”

288 Ala. at 285-86, 259 So.2d at 832.

We do not find “the preponderance of the evidence against the verdict . so decided as to clearly convince the court that it is wrong and unjust,” and must therefore affirm the judgment below.

In view of the result we reach, we need not consider the efficacy of the appellees’ several motions, to strike the transcript of the evidence and to strike the record transcript.

Affirmed.

HEFLIN, C. J., and FAULKNER, AL-MON and EMBRY, JJ., concur.


text:
    In re Elder James KNIGHT v. STATE. Ex parte Elder James Knight.
    SC 1414.
    Supreme Court of Alabama.
    Sept. 11, 1975.
    Donald R. Adams, Auburn, for petitioner.
   SHORES, Justice.

Petition of Elder James Knight for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Knight v. State, 55 Ala.App. 399, 316 So.2d 230 (5 Div. 280).

Writ denied.

HEFLIN, C. J., and MERRILL, MADDOX and JONES, JJ., concur.


text:
    In re BANK OF HEFLIN v. M. M. MILES. Ex parte M. M. MILES et al.
    SC 1026.
    Supreme Court of Alabama.
    Aug. 21, 1975.
    Rehearing Denied Sept. 18, 1975.

      Rives, Peterson, Pettus, Conway & Burge and W. Eugene Rutledge, Birmingham, and Inzer, Suttle, Inzer and Pruett, Gadsden, for petitioners.
    Steiner, Crum & Baker and M. R. Nach-man, Jr., Montgomery, and John S. Casey, Heflin, for respondent.
   FAULKNER, Justice.

The questions for decision in the instant case are whether or not stockholders are entitled to examine all of the records of the Bank of Heflin when demand has been made as required, and whether or not the extraordinary writ of mandamus should issue in this case. We grant the writ.

M. M. Miles wrote two letters, dated 12 and 19 August, 1974, to the Bank of Hef-lin, requesting an unlimited inspection of the books and records of the Bank. The second letter alleged one or more proper purposes for an inspection: to ascertain whether any action had been taken contrary to the best interests of the stockholders, such as misuse of corporate funds; abuse of corporate office; diversion of corporate assets to the personal benefit of any officer, director, employee, or stockholder; misapplication of corporate assets, or favoring of certain customers of the Bank because of personal connections with officers or directors of the Bank; and to determine whether the directors have lived up to their fiduciary obligation to the stockholders.

Uncertain of the propriety of disclosing all of its records, the Bank filed a complaint for declaratory judgment, asking the circuit court to determine what records the defendant, Miles, was entitled to under Title 10, § 21(46). Similar letters were received from Mr. and Mrs. Jack R. Wood, also stockholders of the Bank. They were added as defendants. Miles and the Woods counterclaimed for the statutory penalty of 10% of the value of the shares they owned. All parties filed motions for summary judgment, along with numerous affidavits and depositions. No oral testimony was taken before the court.

On October 23, Judge Parker granted summary judgment for the complainant and issued his orders in the case. He found that proper notice had been given and one or more proper purposes alleged; that the filing of suit by the Bank was not a “refusal” to allow inspection of its records; that the directors have a fiduciary duty to the stockholders and customers and that because of the confidential relationship between the Bank and its customers, the stockholders’ right to examine the Bank’s records was limited. Judge Parker appointed a master to examine the Bank’s records so that the stockholders could get a full and adequate review of the Bank’s business without bringing about an unnecessary invasion of the private, confidential relationship between the Bank and its customers. He said that upon receipt of the master’s report, he would set the time and place for review of the books and records of account, minutes, and record of stockholders and whatever else was deemed proper.

The defendants, Miles and the Woods, then petitioned for an alternative writ of mandamus or a rule nisi. The rule nisi was issued on November 13. The case is here for decision on the writ of mandamus.

The petitioners assert that they have, since they have made a proper demand alleging a proper purpose, a right of access to any and all records and writings of any kind or nature relating to the Bank of Hef-lin. They also contend that mandamus in this case is a proper method of reviewing the orders issued by the trial judge. They contend that mandamus is required, since an appeal would be inadequate; that the books and records of the Bank would change with time and could never be reconstructed to their present state. To review the appointment of a master and to expedite the disposition of the case, mandamus is the proper proceeding.

The position of the Bank in the initial controversy, and its position at the current stage, is that it has a duty to its customers not to disclose certain confidential memo-randa, individual files, and materials from which the books and records of the account are prepared. This duty exists because of the Bank’s fiduciary relationship with its customers and because of the strictures imposed on it by the banking laws and regulations. Stockholders can examine certain records if they have a “proper purpose;” certain others can never be viewed by the stockholders. The Bank is unsure which records should be disclosed; for this reason it argues that the trial court properly used its powers in appointing a master to ascertain which records the stockholders have a right to examine. It approves the action of the trial court judge and asserts that review of his action should be by appeal.

In addition to common law inspection rights, stockholders now have rights under statutes. Alabama’s statute, Title 10, § 21(46), is based largely on the ABA-ALI Modern Business Corporation Act, § 52, which enlarged and extended the common law right. Numerous cases in Alabama have upheld the shareholders’ inspection rights based on the common law and statutes. Alabama Gas Corp. v. Morrow, 265 Ala. 604, 93 So.2d 515 (1957); Loveman v. Tutwiler Inv. Co., 240 Ala. 424, 199 So. 854 (1941); Burns v. Drennen, 220 Ala. 404, 125 So. 667 (1930); Birmingham News v. State ex rel. Dunston, 207 Ala. 440, 93 So. 25 (1921); Foster v. White, 86 Ala. 467, 6 So. 88 (1889).

In Birmingham News, while interpreting the Code of Alabama 1907, § 3477, the precursor to Title 10, § 21(46), this court held that the statutory inspection right in Alabama was equally inclusive with the common law right. And, at common law the inspection right covered all the books and records of the corporation, including corporate documents, contracts and papers, but not including secret researches and the results of skilled and technical investigations. Cf. Otis-Hidden Co. v. Scheirich, 187 Ky. 423, 219 S.W. 191 (1920); Electro-Formation v. Ergon Research Laboratories, 284 Mass. 392, 187 N.E. 827 (1933).

The only express limitation of our statutory right of inspection is that it must be exercised at reasonable and proper times; an implied limitation is that it must not be exercised from idle curiosity, or for improper or unlawful purposes. Smith v. Flynn, 275 Ala. 392, 155 So.2d 497 (1963). In all other respects the statutory right is absolute. The purpose of the statute, like that of the common law right, is to protect small and minority shareholders against the mismanagement and faithlessness of their agents and officers, by furnishing the mode and opportunity to ascertain, establish, and maintain their rights.

What inspection can be made by a stockholder of a bank? One that is for a proper purpose and does not interfere with the bank’s conduct of its business. The inspection rights of stockholders of a bank are the same as stockholders of a corporation generally.

A case similar to the one at hand is Cooke v. Outland, 265 N.C. 601, 144 S.E.2d 835 (1965). There, a North Carolina statute, G.S., § 55-38, similar to the Alabama provision, Title 10, § 21(46), was construed to apply to domestic bank corporations and to authorize an inspection of the bank’s books and records by a shareholder for the purpose of determining the value of his stock, the financial condition of the bank, and the efficiency of the bank’s management. Subsequently, the North Carolina legislature modified the law to restrict the inspection, but permitted it for “good cause shown.” Good cause can be found in this case.

The Bank asserts that mandamus will not lie in the absence of a prior application to the court below to set aside the order complained of. Citing Wood v. City of Birmingham, 247 Ala. 15, 22 So.2d 331 (1945); Ex parte Edwards, 123 Ala. 102, 26 So. 643 (1899); and Ex Parte Bozeman, 213 Ala. 223, 104 So. 402 (1925).

It would be a futile gesture for Miles and Woods to file a petition to set aside the court’s order. The trial judge says he ordered the appointment of a master because he did not know what records were kept by the Bank of Heflin; that he must have some knowledge of the number and description of the records kept by the Bank.

This court in ordering that the rule nisi be issued to the trial judge, ordered him to enter an order allowing examination and audit of all books and records of the Bank, or show cause why he should not.

The trial judge answered in brief that the remedy here is appeal, and mandamus is no substitute for appeal. In this case we are of the opinion appeal is not an adequate remedy. Here the right of inspection of the Bank’s records is a clear legal right. And, where the right sought to be enforced is a clear legal right, the allowance of which is a matter of peremptory duty, and not of judicial discretion, there can be but little doubt or difficulty in determining the propriety of the remedy by mandamus. Ex Parte Watters, 180 Ala. 523, 61 So. 904 (1913). The test for issuing mandamus depends on whether remedy by appealing is adequate to prevent undue injury. Ex Parte Weissinger, 247 Ala. 113, 22 So.2d 510 (1945). If these parties have to wait for a master’s report, and then appeal, it may be impossible to ascertain the state of the records at the time of the alleged wrong done them. Thus, they would suffer undue injury.

It is obvious that certain activities of the Bank are not reflected in the ledger of official action. The principles of equity, fair dealing, and good faith give the stockholders the right to know how the affairs of the Bank are conducted, and whether the’ capital, a part of which they contributed, is being prudently and profitably employed. The petitioners do not want to ramble through the books and records; they want merely an inspection by their accountants.

The right to inspect was a broad right at common law; Alabama has codified the common law, with slight exceptions. Banks are to be regarded as corporations under the Alabama statute. The applicable statute is not limited to “relevant” books and records; it is to be liberally construed. The shareholders advanced a proper purpose for inspection; their request was not overly broad, as it tracked the language of the statute. Hostility on the shareholders’ part toward the officers of the Bank will not defeat their request; neither will the fact of mere confidentiality of the books and records sought. The inspection by the petitioners will not unnecessarily interfere with the Bank’s conduct of business.

The writ is due to be granted.

HEFLIN, C. J., and BLOODWORTH, ALMON and EMBRY, JJ., concur.


author:
ALMON, Justice.
     EMBRY, Justice

text:
    Annie Mae GREEN v. The HOSPITAL BUILDING AUTHORITY OF the CITY OF BESSEMER, a Public Corporation.
    SC 733.
    Supreme Court of Alabama.
    Aug. 21, 1975.

      James R. Shaw, Bessemer, for appellant.
    White E. Gibson, Jr., Birmingham, for appellee.
   ALMON, Justice.

This is an action for personal injuries sustained by appellant, plaintiff below, while she was a non-indigent patient in ap-pellee city hospital. According to appellant’s deposition, an attendant nurse employed by the hospital had closed a door on which appellant had been supporting herself with one hand. Appellant’s left ring finger was caught between the door and the door frame resulting in a hematoma and a fracture of the distal phalanx.

The parties stipulated that appellee was, at the time of the alleged incident, engaged in the operation of a hospital under the authority of Act No. 109, Acts of Alabama 1961, p. 134; as codified, Tit. 22, Ch. 6, Art. 5A, Code of Alabama 1940, Recompiled 1958 (1973 Supp.). Further, it was stipulated that no express promises were made by appellee (nor any of its agents or employees) regarding the reasonableness of the care appellant was to receive while a patient at the hospital.

The complaint in three separate counts alleged respectively, breach of implied contract, simple negligence and wanton misconduct on the part of appellee hospital. Count A of that complaint setting forth appellant’s implied contract theory alleged in pertinent part:

"... Plaintiff was admitted to said hospital as a patient and on said date entered into an implied contract with defendant wherein and whereby, for valuable consideration, the defendant impliedly promised and agreed to nurse and care for the plaintiff for the duration of her confinement and to furnish to plaintiff all special facilities and nursing services and further impliedly promised and agreed to use reasonable care in the performance of said implied promise to furnish to plaintiff all special facilities and nursing service and on said 27th day of March, 1972, pursuant to said contract, the plaintiff entered the said hospital after having agreed to pay all reasonable compensation charges and defendant breached said implied promise to use reasonable care in the performance of said implied promise to furnish to plaintiff all special facilities and nursing services, for that, on the 3rd day of April, 1972, a nurse, or a nurses’ aid, or another employee of said hospital, employed by defendant and while acting within the line and scope of said employment closes [sic] a door on plaintiff’s hand and as a proximate consequence of said breach of said implied contract plaintiff was injured and damaged as follows . . . ”

Appellee demurred to all three counts and subsequently moved for summary judgment under ARCP 56. The trial court relying on the holding in Smith v. Houston County Hospital Board, 287 Ala. 705, 255 So.2d 328 (1971), granted appellee’s motion for summary judgment.

The question is whether the allegations set out in Count A of the complaint, along with the stipulation and deposition of appellant, made out a cause of action sufficient to resist appellee’s motion for summary judgment. More specifically, whether a suit can be maintained, ex contractu, for breach of an implied promise to use reasonable care in furnishing all special facilities and nursing services by a hospital otherwise statutorily immunized from tort liability.

The question of where the demarcation between causes of action sounding in tort and those sounding in contract falls, is by no means a novel one in .this State nor amenable to any ready test. See Western Union Telegraph Co. v. Littleton, 169 Ala. 99, 53 So. 97 (1910). The touchstone is said to be found in Wilkinson v. Moseley, 18 Ala. 288 (1850):

“It is often a matter of difficulty to determine whether an action is in form ex contractu or ex delicto. Perhaps the best criterion is this; if the cause of action, as stated in the declaration [complaint], arises from a breach of promise, the action is ex contractu; but if the cause of action arises from a breach of duty, growing out of the contract, it is in form, ex delicto and case. . . . ” 18 Ala. at 190.

We view the narrow question here presented to be whether the law will imply a promise on the part of a hospital to use reasonable care in treating a patient in the absence of an express contract to that effect.

Clearly, an action for negligence would be maintainable under these facts in the absence of statutory immunity. The election of remedies between an action ex delicto and ex contractu is permissible where the duties imposed by each (contract-tort) overlap. When a given act is both a breach of a contractual duty (expressed or implied) and a duty imposed by tort law, the plaintiff has the opportunity of electing his remedy. There are many instances in our law where these separate duties are concomitant. It is not the character of the act constituting the breach which necessarily determines the remedy; it is rather the character or nature of the duty or duties breached which determines the remedy or remedies available.

It is perhaps unfortunate that the court has on occasion used the misfeasance-non-feasance concept to distinguish whether a contract or tort action would lie. The mode of breach is not so important as the duty breached. It is possible for both a contractual duty and a tort duty to be breached by misfeasance as well as nonfea-sance. Certainly, the tort duty to act prudently can be breached by both an act or a failure to act (commission-omission), and the same is true with regard to a contractual duty. For example, in the present case if the hospital had expressly agreed to use reasonable care in the treatment of appellant, no one would have even bothered to attach any significance to whether the breach was one of misfeasance or nonfea-sance, for the result would have been the same.

There are two kinds of implied contracts — those implied in fact and those implied in law. Contracts implied in law are more properly described as quasi or constructive contracts where the law fictitiously supplies the promise to prevent a manifest injustice or unjust enrichment, etc.

It is conceivable that an action based on a contract implied in fact could be maintainable against a city hospital. This would depend upon the particular facts of a given case and the circumstances surrounding the hospital-patient relationship. The matter of contracts implied in fact, however, is not now before us. While some of the language in our decisions on the subject of contracts implied in law is not always uniform, the result of those decisions are to the effect that the law will not imply a promise on the part of a hospital to use due care. Garig v. East End Memorial Hospital, 279 Ala. 118, 182 So.2d 852 (1966); Waters v. American Cas. Co. of Reading, Pa., 261 Ala. 252, 73 So.2d 524 (1953).

We think the wiser course is to refrain from distrubing the well established line of cases which have refused to imply a promise where none actually exists.

The difficulty has arisen where the plaintiff, foreseeing some impediment to recovering in tort (shortened statute of limitations, lack of evidence demonstrating negligence, inability to secure expert testimony, or, as here, statutory immunity) attempts to plead himself within the language of Vines v. Crescent Transit Co., 264 Ala. 114, 85 So.2d 436 (1956), but fails to aver any specific terms of the contract allegedly breached. In other words, the complaint simply alleges that out of the hospital-patient relationship there arises an implied contract that the hospital not negligently allow its patient to be injured. This was the nature of the complaint presented in Garig, supra, where the Court held:

“. . . There is no averment of any specific terms in the contract requiring the exercise of reasonable care in performing the contract. In the absence of express terms to this effect in the contract, such terms will not be implied. Waters v. American Casualty Co., supra.” 279 Ala. at 121, 182 So.2d at 855.

The barrier to recovery here is not due to the fact that our contract law is wanting in this respect, but rather to the statutory immunity of appellee. In other words, the culprit so far as the appellant is concerned is immunity. This Court in Jackson v. City of Florence, S.C. 934, July 10, 1975, approached the problem head-on by overruling those cases which had in effect judicially imposed the immunity doctrine.

An equally compelling reason for holding as we do is that when the Legislature employed the term ex delicto; this term, as used in that context, had a definite meaning. “Ex delicto” had been judicially defined so far as we are here concerned and could be construed as a term of art. If we were to now give it a different meaning the result would be to totally frustrate legislative intent.

What we are saying is simply this; the law will not impose upon a hospital an implied contractual duty to keep its patients free from any and all negligent injuries.

We are therefore of the opinion that the trial court properly entered summary judgment for the appellee.

Affirmed.

MERRILL, BLOODWORTH, MADDOX, FAULKNER, JONES and SHORES, JJ., concur.

EMBRY, J., with whom HEFLIN, C. J., concurs, dissents.

EMBRY, Justice

(dissenting):

I respectfully dissent. The opinion of my brother Almon is capsulated in the sentence therein:

“ * * * while some of the language in our decisions on the subject of contracts implied in law is not always uniform, the result of those decisions is to the effect that the law will not imply a promise on the part of a hospital to use due care. * * *”

In support, principle reliance is placed on Garig v. East End Memorial Hospital, 279 Ala. 118, 182 So.2d 852 (1966) and authorities discussed therein. The error of such reliance is found in the very next sentence following the above quote:

“We think the wiser course is to refrain from disturbing the well established line of cases which have refused to imply a promise where none actually exists.”

However, a perusal of Garig shows that there this court was considering whether there was such an implied promise in the contract:

“ * * * In the absence of express terms to this effect in the contract, such terms will not be implied.” Id. at 121, 182 So.2d at 855. (emphasis added)

Garig did not give sufficient consideration to quasi or constructive contracts. In the case of quasi contract the duty imposed by law implies the contract. Thus, by its decision today, the majority leaps from the holding of Garig that its facts would not support a finding of a duty under the contract to a broad and general holding that a hospital is under no duty to use due care under an implied contract. Under a quasi or constructive contract, the terms of which are imposed (implied) by law it has that duty.

My views concerning use of quasi contract as a theory upon which to base an action ex contractu have recently been expressed in Lorence v. Hospital Board of Morgan County, Ala., 320 So.2d 631, 1975. This is a duty implied apart from the express contract between patient and hospital, or from one implied in fact based on the conduct of the parties (actual or tacit consent). The breach of such a duty is capable of remedy by an action ex contractu. Historically the action would be in assump-sit for restitution in order to make reparation to one for loss or injury previously inflicted.

The breach of duty imposed by law may be tortious or a tortious breach of contract; express, implied by law or implied in fact, either of which is subject to proof. The remedy is at the election of the party complaining of the wrong which resulted in injury. Tennessee Coal, Iron & Railroad Co. v. Sizemore, 258 Ala. 344, 62 So.2d 459 (1952); Sellers v. Noah, 209 Ala. 103, 95 So. 167 (1923). The following from Am.Jur.2d is the most clear expression of the differences between express contracts, implied contracts and quasi or constructive contracts:

“Both express contracts and contracts implied in fact are based on consent. Evidently, in view of the fact that these are the contracts which are usually before the courts, it has been said that there is no contract without the consent of the parties. Clearly, however, such an observation must have been made without regard to the existence of certain legal duties which, though of a contractual nature, are not based on consent. These are sometimes spoken of as contracts implied in law, but are more properly called quasi-contracts or constructive contracts. They are contracts in the sense that they are remediable by the contractual remedy of assumpsit. In the case of such contracts, the promise is purely fictitious and is implied in order to fit the actual cause of action to the remedy. The liability exists from an implication of law that arises from the facts and circumstances independent of agreement or presumed intention. The intention of the parties in such case is entirely disregarded, while in cases of express contracts and contracts implied in fact the intention is of the essence of the transaction. As has been well said, in the case of actual contracts the agreement defines the duty, while in the case of quasi-contracts the duty defines the contract.” 66 Am.Jur.2d, Restitution and Implied Contracts, § 2, pp. 942-943; Broyles v. Brown Engineering Co., 275 Ala. 35, 151 So.2d 767 (1963); Cowan v. Martin & Huckaby, 246 Ala. 378, 20 So.2d 769 (1945).

One further observation. Under our system of pleading, failure to allege the specific terms of a contract implied (imposed) by law (quasi or constructive contract) can have no effect on the substantive law which, in my view, defines the legal duties imposed upon the Hospital Building Authority. Those duties are of a contractual nature. For breach of these duties in this case plaintiff has a remedy ex contractu. The defined legal duties (contract terms) are to use due care in and about providing the lodging, food, nursing, treatment, care, medications, supplies and other services (including attendance from one place to another in the hospital) incident to hospitalization in skillfully operated .hospitals.

HEFLIN, C. J., concurs.

       This case was originally assigned to a justice formerly on this Court and later reassigned to the writer.

      . Although the complaint was filed on March 27, 1972, before the effective date of the ARCP, the order granting summary judgment was entered after the effective date. Implicit in the trial court’s dispositional ruling, was a finding that application of the new rules worked no injustice on the litigants. ARCP Rule 86. Appellant has made no allegations to the contrary either to the trial court below or here on appeal.

      . Being a municipal hospital statutorily organized as a public corporation for the purpose of providing public hospital facilities for lease to and use by a municipality, appel-lee is subject to suit, “by others in any form of litigation other than an action ex delicto.” (Emphasis ours). Tit. 22, § 204(41h) (1973 Supp.). Appellant has made no challenge, constitutional or otherwise, upon such immunity.


text:
    In the Matter of Honorable G. Ross BELL, Circuit Judge, Tenth Judicial Circuit.
    Misc. No. 463.
    Supreme Court of Alabama.
    Aug. 7, 1975.
    G. Ross Bell, pro se.
    No appearance for appellee.
   PER CURIAM.

Honorable G. Ross Bell has filed a petition with this Court in which he seeks to get credit toward retirement for time he served as a judge of the Recorder’s Court in the City of Birmingham. The Retirement System recommends that his claim for this credit should be disallowed. We agree that the Judicial Retirement Act does not make provision for Judge Bell to claim this time toward retirement.

Section 9 of the Judicial Retirement Act (Act No. 1163, Acts of Alabama, 1973) provides as follows:

“This Act shall not apply to nor in any wise affect benefits paid to justices of the supreme court nor to judges of either of the courts of appeals or of the circuit court who have become supernumerary justices or judges pursuant to the provisions of Code of Alabama 1940, Title 13, Sections, 31-33, or Act No. 288 (General Acts of Alabama 1945, p. 478) or any other applicable Act as such Acts have been amended, supplemented or superseded. Provided further that any judge of a circuit court holding office at the time this Act becomes law who is entitled to credit for prior service toward earning supernumerary status in a position other than as a circuit judge, shall be entitled to have all such service credited toward retirement status under this bill provided he does so within three years from the date this Act becomes law by notifying the supreme court in writing of the service for which he is at that time entitled to credit toward obtaining supernumerary status and for which he desires credit toward retirement under the judicial retirement fund provided by this Act. Upon receipt of such notice the supreme court shall make a judicial determination of the amount of such credit to which such judge is entitled and shall notify the board of control of the state employees’ retirement system of this determination and such service shall be credited to such judge’s retirement benefits and shall be counted as time of service as a circuit judge under this Act.” (Emphasis added.)

We have failed to find any provision of law which would allow Judge Bell to credit, for the purposes of attaining any supernumerary status, his service as judge in the Recorder’s Court in Birmingham. In his request for a judicial determination, Judge Bell states, in part, as follows:

“The Recorder’s Court of the City of Birmingham is the largest court of its kind within the state. Its caseload is heavier than any county court within the state. On many occasions the American Bar Association, U.S. Supreme Court Justices, and the members of the Alabama Supreme Court have all emphasized the importance of these courts to the judiciary within the state and nation.
“On November 30, 1956, I was appointed a judge in the Birmingham Recorder’s Court to serve on a parttime basis. On February 24, 1958, my status with that court was changed to a full-time judge. At that time it became necessary for me to abandon the practice of law and devote all my time and energies to the work of the court. That court has a staff of three fulltime judges and many supportive personnel. In 1963, I was appointed Chief Judge of that court and served in said capacity until I resigned the position to become Judge of the Juvenile and Domestic Relations Court of Jefferson County in 1965.
“It is my understanding that the Retirement System of Alabama recommends that my prior judicial service with the Juvenile and Domestic Relations Court be allowed because it is a county court. It recommends that my prior judicial service with the Birmingham Recorder’s Court be disallowed because it is not a county court. I do not see any logic nor do I feel that it would be appropriate to disallow my prior judicial service in the Recorder’s Court of the City of Birmingham because it was not a county court.
“I believe that the intent of the Legislature as expressed in Section 9 of Act No. 1163, Regular Session, 1973 Acts, clearly provided that anyone who had devoted their fulltime work and energy as a member of the judiciary would be entitled to credit for the prior judicial service toward earning supernumerary status. I do not believe that it was the intent of the legislation to distinguish between municipal and county courts. I think any person in such a position should be entitled to have all such prior judicial service credited toward retirement status. To hold otherwise would be, in effect, declaring that many large recorder courts are not worthy of credit while the small county courts throughout the state are.”

We are not unmindful of the responsibilities and duties which Judge Bell had as a judge in the Recorder’s Court in Birmingham, but, in the absence of specific statutory authority, we do not believe that the Judicial Retirement Act, as presently written, allows Judge Bell to credit his prior service as judge in the Recorder’s Court toward retirement.

The Clerk of this Court is directed to notify the Board of Control of the State Employees Retirement System and the Honorable G. Ross Bell of this determination.

HEFLIN, C. J., and MERRILL, MADDOX, JONES and SHORES, JJ., concur.