author: SUGG, Justice:

text:
    MEDART DIVISION OF JACKES-EVANS MANUFACTURING COMPANY, INC. and Fireman’s Fund Insurance Company v. Frances E. ADAMS.
    No. 49274.
    Supreme Court of Mississippi.
    March 30, 1977.
    Daniel, Coker, Horton, Bell & Dukes, Roger C. Clapp, Jackson, for appellant.
    Fraiser & Burgoon, James W. Burgoon, Jr., Greenwood, for appellee.
    Before INZER, SUGG and LEE, JJ.
   SUGG, Justice:

Claimant, Frances E. Adams, was employed in December, 1971 by the defendant, Medart Division of Jackes-Evans Manufacturing Company, Inc. Her duties included punching holes in locker handles with an air drill. On January 17, 1972, while working at Medart, claimant reached into a fifty-five gallon barrel where the locker handles were stored. After securing a box of locker handles from the barrel she began to straighten up and felt a sharp pain in her back. She reported the incident to the personnel manager who in turn referred her to the company physician. Claimant was placed on medication and told to remain in bed for several days. By the first of February claimant’s condition had not improved so she was referred to Dr. Blake, an orthopedic surgeon. Dr. Blake placed her in a hospital in Greenwood for physical therapy for a period of fourteen days.

Claimant was examined several times by Dr. Blake after being released from the hospital and because her condition had not improved by the first of March she was referred to Dr. Naef, a neurologist. Dr. Naef performed a myelogram that revealed protruded discs at the L — 4 and L — 5 level. Surgery was performed on March 23, 1972 by Dr. Blake.

After her release from the hospital following surgery, Dr. Blake examined claimant on May 3 and felt that her recovery was “satisfactory, but a bit slow.” Claimant returned for an examination on June 28 at which time she complained of discomfort in her back and peculiar sensations in her left hip and leg. She had normal movement in her spine but a stiff leg raising test on her left lower extremity was positive. Dr. Blake again referred claimant to Dr. Naef who examined her on July 14. On this date claimant’s condition had grown considerably worse and she stated to Dr. Naef that she experienced severe pain in her back while picking up some clothes out of a clothes basket at her home on July 2, 1972. Dr. Naef performed another myelogram that revealed the need for further surgery. Dr. Blake again performed surgery and discovered extensive scar tissue and a recurrence of protruded discs at the same situs of her previous problem.

After a second surgical procedure Mrs. Adams was referred to Dr. Walter Neill, a neurosurgeon, because of continued numbness and discomfort in her left leg. Dr. Neill performed another myelogram followed by a rhizotomy on September 20, 1972 to relieve claimant’s intractable pain problem. Dr. Neill cautioned the patient that she would experience loss of propria-ception in her left ankle and that she would have to watch her leg movements carefully so she would not turn her left ankle. He continued treating her and on July 17, 1973, determined that she had reached maximum medical recovery. Dr. Neill stated,

I feel that she does have some propriaception loss in her ankle and because of her pain and residual stiffness in her back, I feel that she has a residual permanent partial disability of about 20% and I feel that her temporary total disability was over at that time.

When asked if he had an opinion as to whether claimant could perform all of the acts required of her in the same type or similar type employment as before her injury and the resulting treatment, Dr. Neill replied:

I think that she would be able to do that. I assume that she does require some agility with her feet also — walking and going from place to place. She would be able to do this with a 20% limitation and whether or not with this 20% limitation that she could do this work or return to it, or be hired back at it because of the limitation, I don’t know. This would be because of loss of propria-ception in her left ankle and loss of residual — some residual — and some additional residual stiffness of her back.

In January, 1973 Medart stopped paying any compensation benefits for claimant because several of the company employees reported that she served them a round of drinks at the Downtowner Motor Inn in Greenwood. Claimant and the management of the Downtowner denied that she was employed by the motel and denied that she served the employees. In February, 1973 claimant was employed for part time clerical work at a salary of $50 per week. The work was to be performed in three working days during each week and claimant could select her own working hours.

The administrative judge awarded claimant compensation for temporary total disability from the date of the injury through February 6, 1973. He awarded compensation for 15% permanent partial disability beginning July 18, 1973 and continuing for a period not to exceed four hundred fifty weeks. He ordered defendant and its carrier to pay all reasonable medical expenses incurred by the claimant and assessed penalties and interest on all compensation payments due but unpaid.

Both parties appealed to the full Commission which modified the award of the administrative judge. The Commission ordered Medart to pay for claimant’s total temporary disability from the date of the injury through July 17, 1973 and to pay permanent partial disability at the rate of 20% beginning on July 18,1973 for a period not to exceed four hundred fifty weeks together with penalty and interest on the amount due and unpaid.

Medart appealed to the circuit court. The circuit court affirmed the Commission’s order except for the provision that required Medart to pay penalties for compensation due but unpaid during the seven month period following the submission of the case to the Commission until the Commission finally entered an order. Penalties were exempted on this period by the circuit judge because of the Commission’s unreasonable delay in entering an order.

Medart appealed from the order of the circuit court with supersedeas. Claimant did not cross appeal.

The only question in this case that merits discussion is whether claimant’s injury of July 2, 1972 resulting from bending over to pick up some clothes in her home is an independent intervening nonindustrial cause.

The burden of proof is on Medart and its carrier to establish an independent intervening nonindustrial cause. In Dunn, Mississippi Workmen’s Compensation 2nd Ed. § 166 at 221 (1967) we find the following:

Once it is shown that a disability was produced by an injury and that the employee continues to be disabled, the presumption is that the disability continues to be causally related to the injury, and the burden of proof is upon the employer to show that the continuing disability is due to some other intervening cause or pre-existing condition for which he is not responsible.

The general rule concerning an independent intervening injury is stated in 1 Larson’s Workmen’s Compensation § 13.00 at 3-279, as follows:

When the primary injury is shown to have arisen out of and in the course of employment, every natural consequence that flows from the injury likewise arises out of the employment, unless it is the result of an independent intervening cause attributable to claimant’s own intentional conduct.

Professor Larson speaks more specifically to the question as follows:

Moreover, once the work-connected character of any injury, such as a back injury, has been established, the subsequent progression of that condition remains com-pensable so long as the worsening is not shown to have been produced by an independent nonindustrial cause. This may sound self-evident, but in close cases it is sometimes easy to overlook this essentially simple principle. In a Utah case, claimant had suffered a compensable accident in 1966, injuring his back. Several years later, this condition was triggered by a sneeze into a disc herniation, for which claimant required surgery. The medical testimony was that because of the back condition, it was probable that had claimant not had the sneezing episode, some other major or minor event would have eventually necessitated surgery. The finding that the sneezing episode was the independent cause of claimant’s disability, and the resultant denial of compensation, were held to be error, and benefits were awarded on appeal. This result is clearly correct. The presence of the sneezing incident should not obscure the true nature of the case, which is nothing more than that of a further medical complication flowing from a com-pensable injury. If the herniation had occurred while claimant was asleep in bed, his characterization as a mere sequel to the compensable injury would have seemed obvious. The case should be no different if the triggering episode is some nonemployment exertion like raising a window or hanging up a suit, so long as it is clear that the real operative factor is the progression of the compensable injury, associated with an exertion that in itself would not be unreasonable in the circumstances. A different question is presented, of course, when the triggering activity is itself rash in the light of claimant’s knowledge of his condition. (§ 13.11 at 3-283). (Emphasis supplied).

Following claimant’s surgery Dr. Blake advised her to expand her activities within the limits of her stamina. Her act of July 2, of bending over to pick up clothes was simply a triggering episode and claimant’s act in performing this simple task was not unreasonable under the circumstances. The complications which arose following the bending episode of July 2 were not the result of an independent intervening cause, but was the progression of claimant’s com-pensable injury. The facts clearly bring claimant’s case within the scope of the rule so ably stated by Larson, supra. Her disability resulting from the bending episode and the second and third surgical operations are compensable as medical consequences flowing from the primary injury.

Appellants rely on Burnley Shirt Corporation v. Simmons, 204 So.2d 451 (Miss.1967) and argue that our decision in Burnley precludes claimant from recovery for permanent partial disability. The facts in the case at bar are readily distinguishable from the facts in Burnley where the claimant sustained an electrical shock on May 17, 1965, while in the course of her employment. As a result of the injury, claimant suffered from nausea, headaches and vomiting, requiring medical treatment through August 17, 1965. During the next several weeks claimant’s symptoms subsided to the extent that medical treatment was discontinued and she considered returning to work. While getting out of bed one morning claimant sustained an injury to her lower back, and sought compensation as a result of this back injury. We affirmed the Commission’s and circuit court’s determination that the back injury was not causally connected to her initial injury and therefore, not compensable. It was clear from the testimony in Burnley that the claimant’s back injury was not a progression of the compensable injury that she sustained by electrical shock. Burnley has no application to the facts in this case.

We affirm the judgment of the circuit court and remand to the Workmen’s Compensation Commission for computation of the amounts due claimant including penalties.

AFFIRMED AND REMANDED TO WORKMEN’S COMPENSATION COMMISSION.

GILLESPIE, C. J., PATTERSON and IN-ZER, P. JJ., and SMITH, ROBERTSON, WALKER, BROOM and LEE, JJ., concur.


source: Caselaw Access Project

author: SUGG, Justice

license: Public Domain

text:
    Linda MASON v. STATE of Mississippi.
    No. 49597.
    Supreme Court of Mississippi.
    March 30, 1977.
    Rehearing Denied April 20, 1977.

      W. E. Gore, Jr., L. Breland Hilburn, Jackson, Paul G. Swartzfager, Laurel, L. B. Porter, Union, for appellant.
    A. F. Summer, Atty. Gen., by Catherine Walker Underwood, Special Asst. Atty. Gen., Jackson, for appellee.
    Before INZER, SUGG and LEE, JJ.
   SUGG, Justice

for the Court.

Defendant, Linda Mason was indicted, tried and convicted in the Circuit Court of Newton County of the crime of burglary under Mississippi Code Annotated section 97-17 — 19 (1972). Specifically, defendant was convicted of burglary arising out of breaking and entering a dwelling and committing the crime of malicious mischief therein. Mississippi Code Annotated section 97-17-67 (1972). Defendant was sentenced to serve a two year prison term and appeals her conviction to this Court.

Defendant’s conviction resulted from an incident that occurred on January 13, 1976, at Mr. and Mrs. Harold Mason’s home located south of Newton. At the time of the incident the defendant was married to the Masons’ oldest son. Mr. and Mrs. Mason left their home for work around 7:00 a.m. on the morning of January 13. Both the front and back doors to the house were closed but not locked. Upon returning home that afternoon, the couple discovered that a liquid, ultimately determined to be acid, had been poured over much of the furniture and clothing throughout the house. The acid caused the surfaces it came into contact with to deteriorate.

The sheriff was immediately called to the scene and following an inspection of the premises, the sheriff, along with the defendant’s husband, drove to a cafe in Newton where the defendant was working. After a brief discussion between the defendant and her husband, the defendant announced that she wanted to talk to the sheriff concerning the incident at the Masons’ home. The sheriff advised the defendant of her constitutional rights, following which the defendant admitted that she had poured acid inside the Masons’ home.

Although several issues are raised by the defendant, only one merits discussion. The defendant does not seriously contend that she did not commit the offense of pouring acid on the Masons’ furnishings and clothing; however, she argues that she is not guilty of burglary because she had the consent of the Masons to enter their home. Defendant argues that because breaking and entering is a necessary element of the crime of burglary, entering a dwelling with the owner’s consent negates breaking and entering. The defendant therefore concludes that she is not guilty of burglary because she had the Masons’ consent to enter the house at the time the offense was committed.

The crime of burglary consists of two essential elements: (1) burglarious breaking and entering of a dwelling or building, and (2) the intent to commit a crime therein. Newburn v. State, 205 So.2d 260, 265 (Miss.1967). In order to sustain a burglary conviction the state must prove both elements of the crime. We also pointed out in Newburn that the act of opening a closed entrance to a dwelling is sufficient to satisfy the essential element of breaking and entering.

In Holderfield v. State, 215 Miss. 564, 570, 61 So.2d 385 (1952), we held that under certain circumstances there can be no breaking and entering, and therefore, no burglary, where the occupant of a building consents to the entry at the time the offense is committed. However, Holderfield’s conviction was reversed because of irreconcilable jury instructions introduced by both the state and the defendant concerning the question of the defendant’s consent to enter the dwelling. We reversed and remanded for a new trial holding that the question of whether the defendant had the owner’s consent to enter the building was for the jury’s determination, but the jury was left without proper guidance because of the conflicting instructions.

In the present case the testimony does not establish that the Masons ever gave the defendant express permission to enter and leave their home when they were not present. The question of whether the Masons had impliedly given their consent to the defendant to enter their home at the time the offense was committed was a question to be determined by the jury.

Although the defendant was entitled to a jury instruction on the question of her consent to enter the dwelling, such instruction was not requested by her. In Newell v. State, 308 So.2d 71, 78 (Miss.1975), we held that the trial court will not be put in error for its failure to instruct on any point of law unless specifically requested in writing to do so. This rule is particularly applicable in the present case since the jury was properly instructed that in order to find the defendant guilty of burglary, they must find beyond a reasonable doubt that she broke and entered the Masons’ home. By returning a verdict of guilty, the jury resolved the question of the defendant’s consent to enter the dwelling against her. The evidence supports the jury’s finding.

AFFIRMED.

GILLESPIE, C. J. PATTERSON and IN-ZER, P. JJ., and SMITH, ROBERTSON, WALKER, BROOM and LEE, JJ., concur.


author: ROBERTSON, Justice:

text:
    Judy BERRY and Donald A. Berry v. HINDS COUNTY, Mississippi.
    No. 49135.
    Supreme Court of Mississippi.
    March 30, 1977.

      Young, Scanlon & Sessums, Pat H. Scan-lon, Brad Sessums, Jackson, for appellants.
    Watkins & Eager, Thomas H. Watkins, John M. Putnam, Jackson, for appellee.
    Before PATTERSON, ROBERTSON and BROOM, JJ.
   ROBERTSON, Justice:

This suit involves the doctrine of governmental immunity of a county from suit.

Suit was brought by Judy and Donald A. Berry against Hinds County, Mississippi, in the Circuit Court of the First Judicial District of Hinds County, to recover damages for personal injuries suffered by them when their automobile crashed into a collapsed bridge which spanned a large ditch on Lon-gino Road in Hinds County. The accident happened about 6:30 p.m. on November 22, 1970, as the plaintiffs with their children were riding in the family automobile.

A general demurrer was sustained to the declaration, and the plaintiffs declining to plead further, the judgment was made final and the declaration dismissed.

On appeal, the Berrys contend that the doctrine of governmental immunity should be abolished — that there is no valid reason for continuing this outmoded and antiquated doctrine. The appellants further contend that this doctrine of sovereign or governmental immunity was created by the courts and therefore should be abolished by them.

Appellants cite Ayala v. Philadelphia Board of Public Education, 453 Pa. 584, 305 A.2d 877 (1973), as their most persuasive authority. In a very lengthy opinion, by a four-to-three vote, the Supreme Court of Pennsylvania reached this conclusion:

“We now hold that the doctrine of governmental immunity — long since devoid of any valid justification — is abolished in this Commonwealth.” 305 A.2d at 878.

This broad and all-encompassing ruling was made in spite of the fact that the suit was only brought against the Philadelphia Board of Public Education for injuries suffered by William Ayala, Jr. when his arm was caught in a shredding machine in the upholstery class of the Carrol School in the City of Philadelphia.

The appendix to the opinion in Ayala lists eighteen states (including the District of Columbia) which have judicially abrogated the doctrine of governmental immunity. Pennsylvania, of course, should be added to the list, and, also, Alabama, which abrogated the doctrine as to counties (by a five-to-four vote) in Lorence v. Hospital Board of Morgan County, 294 Ala. 614, 320 So.2d 631 (1975). This makes a total of twenty states. Seven states are listed as having statutorily abrogated the doctrine.

One hundred years ago in the landmark case of Brabham v. Board of Supervisors of Hinds County, 54 Miss. 363 (1877), this Court stated its views on the doctrine of governmental immunity:

“The plaintiff in error sued the defendant in error to recover damages for the death of her husband, produced by the falling of a county bridge while he was crossing it with his wagon and team.
“If a county can be held liable for damages suffered in consequence of neglect to repair a county bridge in any case, it should be held so in this. At common law, a county could not be so held liable. No statute makes it liable. The ‘demands,’ ‘accounts’ and ‘claims’ contemplated in the statutes to be audited and allowed by boards of supervisors, and authorized to be sued on, if allowance is refused by the board, are manifestly such liabilities of the county as are provided for by some statute. A county can have no liability except as authorized, expressly or by necessary implication, by some statute. Counties are political divisions of the State, created for convenience. They are not corporations with the right to sue and be sued as an incident to their being, but are quasi corporations, invested by statute with certain powers, and subject to certain liabilities, and can neither sue nor be sued, except as authorized by statute. The right to maintain a suit like this against a county is not only outside of the contemplation of the statutes, but is opposed by every consideration of sound policy.” 54 Miss. at 364.

Over the years since Brabham, Mississippi has steadfastly adhered to this fundamental doctrine. Owens v. Jackson Municipal Separate School District, 264 So.2d 892 (Miss.1972); Lowndes County, District 5 v. Mississippi State Highway Commission, 220 So.2d 349 (Miss.1969); Board of Education of Forrest County v. Sigler, 208 So.2d 890 (Miss.1968); Board of Supervisors of Lee County v. Payne, 175 Miss. 12, 166 So. 332 (1936); Simpson County v. Kelly, 175 Miss. 596, 166 So. 532 (1936); Federal Land Bank v. Leflore County, Mississippi, 170 Miss. 1, 153 So. 882 (1934); McNulty v. Vickery, 126 Miss. 341, 88 So. 718 (1921); City of Grenada v. Grenada County, 115 Miss. 831, 76 So. 682 (1917).

In Monaco v. State of Mississippi, 292 U.S. 313, 54 S.Ct. 745, 78 L.Ed. 1282 (1933), the Supreme Court of the United States said:

“The ‘entire judicial power granted by the Constitution’ does not embrace authority to entertain such suits in the absence of the State’s consent. (Citations omitted).
“Protected by the same fundamental principle, the States, in the absence of consent, are immune from suits brought against them by their own citizens or by federal corporations, although such suits are not within the explicit prohibitions of the Eleventh Amendment.” 292 U.S. at 329-30, 54 S.Ct. at 751, 78 L.Ed. at 1289.

In Board of Supervisors of Lee County v. Payne, 175 Miss. 12, 166 So. 332 (1936), this Court pointed out that counties and municipalities of the state are not on the same plane and that there are some fundamental differences between them. In Payne, we said:

“It is argued that counties and municipalities are upon the same plane, and should be held alike liable for a breach of a contract. The courts have universally made a distinction between counties and other municipal corporations, such as cities, towns, and villages. ‘The principal ground upon which counties are not held liable for damages in actions for their neglect of public duty is that they are involuntary political divisions of the state, created for governmental purposes, and are organized without regard to the consent or dissent of the inhabitants. The theory upon which municipal corporations proper are held liable in such cases is that they are voluntary associations created and organized at the solicitation of, and with the free consent of, the inhabitants, under the laws of the state, and that the benefits accruing to the people by such incorporation compensate them for the liability. Another reason is that since the county is but a political subdivision of the state, a suit against the county is, in effect, a suit against the state, and that therefore an action will not lie without the consent of the legislature’.’’ 175 Miss. at 23, 166 So. at 335 (Emphasis added).

While it might be true that this doctrine was first enunciated by the English courts, still it came to this country as a part of the Common Law and early in the history of the United States was adopted as a sound and reasonable concept of the law.

The Legislature long ago began the process of chipping away at this doctrine of governmental immunity in appropriate areas. In 1914, the Legislature passed an act which provided:

“The board of supervisors of any county shall have the power, in their discretion, to allow damages sustained to stock and other property injured or destroyed while traveling along the public highways maintained by the county where such loss is caused by defects in a bridge, causeway or culvert in such highway. No such payment shall be allowed unless such defects in such bridge, causeway or culvert was the proximate cause of the injury and was not apparent or discoverable by the exercise of reasonable diligence, and no such payment shall be made unless such defect had existed for such a time that the failure to remedy or repair the same amounts to gross carelessness on the part of the county. Such payments shall be made from the county road and bridge funds, or from the road funds of the district where such accident occurred, as the circumstances render proper.
“A claim under section 19-13-51 for accidents occurring shall be made in writing, itemized and sworn to, and shall be filed within three months after such accident occurs, and shall remain on file with the clerk of the board of supervisors for sixty days before the first day of the term at which it comes up for hearing. Notice of its pendency shall be published in a newspaper published in the county at least one time before such claim comes up for hearing, and if there be no paper in such county, by posting notices at the courthouse and other public places.
“No payment shall be made hereunder except by a four-fifths recorded vote of all the members of the board of supervisors. Where the property injured or destroyed is properly assessable, no evidence of the actual value of the property injured or destroyed shall be received or considered, but the assessed value thereof as shown by the assessment rolls of the county shall be the only evidence of value, and the damages allowed shall be fixed in proportion. Where the property injured or destroyed is not properly assessable and was not assessed, then the board of supervisors shall receive evidence of the actual value of the same, and shall allow damages in proportion. Sections 19-13-51 to 19-13-55 shall not be construed as creating any enforceable liability against any county.”
Mississippi Code Annotated, §§ 19-13-51, 19-13-53, and 19-13-55 (1972).

It is apparent from even a cursory reading of these statutes that the legislature felt it necessary to carefully limit and circumscribe the approval of such claims. Even then in order for there to be no misunderstanding, the legislature said:

“Sections 19-13-51 to 19-13-55 shall not be construed as creating any enforceable liability against any county.”

In 1972, the legislature provided for suits against counties or school districts operating school busses. Mississippi Code Annotated section 37-41-37 (Supp.1976), provides in part:

“In the event of any accident resulting in the death of or injury to any person or in damage to property (a) arising out of the negligent operation of any school bus or other vehicle owned by any county or any municipal separate school district or public junior college district or consolidated school district, or operated by such county or municipal separate school district or public junior college district by private contract, for the transportation of pupils to and from the public schools of such county, or municipal separate school district or junior college, or (b) caused by a bus while being operated in pursuance of any activity of any of such schools, or (c) arising by reason of negligence in the maintenance, upkeep, repair or mechanical failure of such vehicle, any person receiving such injuries or sustaining such damages shall have a right of action against the county or municipal separate school district or junior college district or consolidated school district, which operates such vehicle. Such county or municipal separate school district or junior college district or consolidated school district, may not plead the defense of governmental immunity in bar to any such action or recovery, and such suit may be tried as any other civil action.” (Emphasis added).

Again the Legislature thought it necessary to limit and circumscribe recovery and to provide for funds out of which such claims could be paid. In Section 37-41-39 the Legislature provided for counties and school districts to pay into an “accident contingent fund” to be set up in the state treasury.

In Section 37-41 — 41 (Supp.1976), the Legislature placed a limit of $10,000 on each such claim for one person, and $50,000 for any one accident. A limitation of $1,000 per claimant per accident was placed on a claim for property damage, and $550 on a claim for hospital, medical and doctor bills per person per accident.

In 1973, the Legislature provided for the purchase of liability insurance by counties:

“The board of supervisors of any county in this state is authorized, in its discretion, to obtain and pay for liability insurance covering each, all or any of the motor vehicles of the county so as to cover the following damages for injury to persons or property, or both, caused by the negligence of any duly authorized officer, agent, servant or employee of such county while operating such motor vehicle in the performance of his official duties, said policy to be written by the agent or agents of a company or companies authorized to do and doing business in the State of Mississippi. Provided, however, that on each vehicle the insurance policy shall be a minimum of ten thousand dollars ($10,000.00) for personal injury to any one (1) person in any one (1) accident, or a minimum of twenty thousand dollars ($20,000.00) for personal injury to two (2) or more persons in any one (1) accident, and a minimum of five thousand dollars ($5,000.00) property damage. All policies shall be subject to the approval of the board of supervisors and the premiums thereon shall be paid from the general fund of such county, road and bridge maintenance funds of such county or districts in such county. The board of supervisors of any county is authorized, in its discretion, to purchase general liability insurance coverage for its members and county employees in the official performance of their elective or appointive duties. Said general liability policy shall be written by the agent or agents of a company or companies authorized to do and doing business in the State of Mississippi. The monetary limits of any such policy shall be set by the board of supervisors in amounts they feel are adequate and reasonable in light of existing circumstances. The premiums on such policies shall be paid from the county general fund or from any other available county funds.
“If liability insurance is in effect in such county, such county may be sued by anyone affected to the extent of such insurance carried; provided, however, that immunity from suit is only waived to the extent of such liability insurance carried and a judgment creditor shall have recourse only to the proceeds or right to proceeds of such liability insurance.” Miss.Code Ann., § 19-7-8 (Supp. 1976). (Emphasis added).

Our Federal courts have not seen fit to abolish the doctrine of governmental immunity by judicial fiat. They exercised the proper judicial self-restraint and waited for Congress to act. In 1946, Congress (representing all the people) enacted the Federal Tort Claims Act (28 U.S.C.A. §§ 2671-2680). This law has spawned prolific and, at times it seems, unlimited litigation.

Appellants contend that they were authorized to bring suit and did bring suit under the provisions of Mississippi Code Annotated § 11-45-17 (1972), which provides:

“Any county may sue and be sued by its name, and suits against the county shall be instituted in any court having jurisdiction of the amount sitting at the county site; . . .”

Long ago, we held, in State Highway Commission v. Gully, 167 Miss. 631, 145 So. 351 (1933):

“A general statutory grant of authority to sue a governmental subdivision or agency does not create any liability, and suit may be maintained thereunder only for such liability as is authorized by statute, expressly or by necessary implication. City of Grenada v. Grenada County, 115 Miss. 831, 76 So. 682; Brabham v. Board of Supervisors of Hinds County, 54 Miss. 363, 28 Am.Rep. 352. At the time these cases were decided, the statute provided that any county might sue or be sued by its name, section 3484, Rev.Code 1871, section 309, Code 1906; and it was expressly held in each of these cases that there can be no liability against the state or its political subdivisions or agencies unless it is expressly or impliedly created by statute.” 167 Miss. at 647, 145 So. at 354. (Emphasis added).

Of course, the courts, as well as the legislature, have the undoubted right to abrogate the doctrine of governmental immunity. We are of the opinion, however, that the legislature is in a better position to limit and restrict claims that can be asserted and to provide the ways and means for the paying of such claims (either by taxation or appropriation), if it should see fit to do so. Therefore, we decline to abolish the doctrine of governmental immunity at this time by judicial decision.

The trial court was correct in sustaining a general demurrer to the declaration. The judgment of the circuit court is, therefore, affirmed.

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

AFFIRMED.

All Justices concur.


author: ROBERTSON, Justice,

text:
    Brenda A. WARREN, natural mother and personal representative of Yulanda M. Boren, Deceased v. Wayne D. ALLGOOD et al.
    No. 49344.
    Supreme Court of Mississippi.
    March 30, 1977.

      William Roberts Wilson, Jr., Henry R. Mitchell, III, Ocean Springs, for appellant.
    Megehee, Brown & Williams, Raymond L. Brown, Cumbest & Cumbest, Arvis V. Cum-best, Gordon & Myers, William H. Myers, Pascagoula, for appellees.
    Before PATTERSON, ROBERTSON and BROOM, JJ.
   ROBERTSON, Justice,

for the Court.

Brenda A. Boren (Warren), mother and personal representative of her 22-month-old daughter, Yulanda Boren, brought suit in the Circuit Court of Jackson County, against Wayne D. Allgood, Frank Hamilton, Alton Hamilton and John Hamilton, to recover damages for the wrongful death of Yulanda. The jury returned a verdict against Wayne D. Allgood only for $7,000 damages. The jury found the Hamiltons “as not being responsible in any way for the accident which occurred on November 3, 1973.” Plaintiff appeals.

About 5:30 p. m. November 3,1973, Brenda Boren (Warren), her husband, Robert Boren, and their 22-month-old daughter, Yulanda, were traveling south on State Highway 63 in their Volkswagen. Robert Boren testified that as he approached the farm owned by the Hamiltons, which adjoined the highway, that he noticed a haze or fog across the highway, that he slowed to 20 or 25 miles an hour as he entered the haze, that his Volkswagen was rear-ended by a pickup truck driven by defendant, Wayne D. Allgood, and Yulanda was fatally injured.

Appellant alleged that this haze or fog across the highway was actually a thick cloud of lime dust which had been produced by a liming operation on the Hamilton farm.

Defendant Allgood testified that he drank one beer at Harold’s Tavern, and got another beer to carry with him as he proceeded south on highway 63. He stated that when he observed what looked like a cloud or smoke going across the highway that he slowed from 60 or 65 miles per hour to 45 miles per hour, and entered the cloud or smoke at that speed. He admitted that he rammed into the back of the Boren Volkswagen.

The evidence as to the liming operation was conflicting. Alton Hamilton testified that he was liming the fields of his brothers, Frank and John Hamilton, and that he finished spreading the lime about 4:30 p. m.; that the lime had settled on the ground, and that there was no lime dust drifting across the highway.

Several witnesses testified that lime dust was forming an obstruction over the highway when they drove past the Hamilton farm shortly before the accident. Other witnesses testified that they did not notice a cloud of lime dust or anything else obstructing the highway when they passed the Hamilton lands around the time of the accident.

Appellant contends that the court committed error in admitting into evidence a sample of lime and in allowing Earl Wayne Nichols to testify as to this exhibit. Nichols testified that he had worked for Corchem for 15 or 16 years, that he was a crew leader at Corchem when he resigned and went back to farming, that he had gotten this sample of lime from the lab superintendent at Corchem, and that it was dolomite lime or calcium chloride, which was the same type lime that the Hamiltons had purchased from Corchem over the years and had used in their liming operations. The appellant’s principal objection was that the source of this lime was not sufficiently proven. Nichols testified that he had gotten it from Corchem, that he recognized it as being exactly the same kind purchased from Corchem and used over the years by the Hamiltons in their liming operations. We think that the source was sufficiently proven, but even if it was not the source was not of particular significance in the case at bar. All that was required was that it be identified as the same type lime that had been used by the Hamiltons in their farming operations over the years.

Neither counsel nor this Court have been able to find a Mississippi case directly in point, but we did find an annotation in 95 A.L.R.2d 681 (1964), which contained this helpful information:

“In a number of cases, the admission or exclusion of an offered sample has been held properly based, at least in part, on the sufficiency or insufficiency of identification as to its source. Where the reasons for the holding have been stated, the cases indicate no radical departure from the general rules of evidence regarding identification of objects. Thus, non-expert opinions as to resemblance between inanimate objects are admissible under the exception to the opinion evidence rule, which exists where it is difficult or impossible to reproduce the data upon which the opinions are based; and where the sample is not positively identified, that fact may be held to go merely to the weight of the evidence and not its admissibility. On the other hand, the court may base its conclusion on the presence or absence of testimony tracing the sample from the time of its original taking until it is produced in court, where it is believed that such a chain of evidence is necessary to link the sample positively with the article or substance in question.” 95 A.L.R.2d at 686. (Emphasis added).

We are of the opinion that it was largely a question addressed to the sound discretion and judgment of the trial judge and we can not say that the trial judge was wrong in admitting this lime sample into evidence and also allowing Nichols to testify as to this sample.

The trial court was correct in sustaining an objection to any testimony about a multi-million dollar class action suit in Federal Court against Corchem Chemical Company for air pollution.

The conflicting evidence presented a jury question. The judgment of the court discharging the Hamiltons, being based on a jury verdict in their favor, is affirmed.

As to the defendant Wayne D. All-good, the $7,000 judgment against him for the death of a 22-month-old child is grossly inadequate. The hospital, doctors’, funeral and cemetery expenses amounted to $2,732.80. It was stipulated by all parties that Yulanda’s life expectancy was 74.8 years. Dr. Terrell Pike, a professor at the University of Southern Alabama, whose specialty was Econometrics, testified that the present net value of Yulanda’s life was $129,899.

We are of the opinion that there should be an additur of $13,000 to the $7,000 verdict returned by the jury, making a total judgment of $20,000.

If Defendant Allgood does not accept the additur within 15 days after the judgment of this Court becomes final, this cause will be remanded to the trial court for a new trial on the issue of damages only. If Defendant Allgood does accept the additur of $13,000, then the judgment for a total of $20,000 will be affirmed.

AFFIRMED ON CONDITION OF ACCEPTANCE OF ADDITUR; OTHERWISE REVERSED AND REMANDED FOR A NEW TRIAL ON DAMAGES ONLY.

GILLESPIE, C. J., PATTERSON and IN-ZER, P. JJ., and SMITH, SUGG, WALKER, BROOM and LEE, JJ., concur.


text:
    Jerome TANK, d/b/a Jerome Tank Discount Center v. Mrs. Loretta GUTHRIE.
    No. 49343.
    Supreme Court of Mississippi.
    April 6, 1977.
    Clayton Lewis, Clayton Taylor Lewis, Philadelphia, for appellant.

      Alford, Mars & Thomas, Herman Alford, Philadelphia, for appellee.
    Before PATTERSON, P. J., and ROBERTSON and BROOM, JJ.
   AFFIRMED.

LEE, J., took no part.


text:
    Linda Faye ENGLISH v. George Horace ENGLISH, Jr.
    No. 49352.
    Supreme Court of Mississippi.
    April 6, 1977.
    Billy J. Jordan, Columbus, for appellant.
    Travis Buckley, Laurel, for appellee.
    Before INZER, P. J., and SUGG and LEE, JJ.
   AFFIRMED.


text:
    Cecil A. BARNETT et al. v. MISSISSIPPI STATE HIGHWAY COMMISSION.
    No. 49332.
    Supreme Court of Mississippi.
    April 6, 1977.
    James B. Everett, Decatur, for appellant.
    Gordon & Mangum, Marcus D. Gordon, Union, for appellee.
    Before PATTERSON, P. J., and ROBERTSON and BROOM, JJ.
   AFFIRMED.

LEE, J., took no part.


text:
    Eddie Clyde DUNN v. STATE of Mississippi.
    No. 49644.
    Supreme Court of Mississippi.
    April 6, 1977.
    Joe Ray Langston, Ed W. Jenkins, Boone-ville, for appellant.
    A. F. Summer, Atty. Gen. by Wayne Snuggs, Special Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, P. J., and ROBERTSON and BROOM, JJ.
   AFFIRMED.


text:
    In the Matter of ESTATE of Radford E. DuBOIS, Jr., Deceased. Radford E. DuBOIS, III, et al. v. The DELTA NATIONAL BANK OF YAZOO CITY, Mississippi.
    No. 49314.
    Supreme Court of Mississippi.
    April 6, 1977.
    Upshaw, Dale, Dorizas & Calhoun, Angelo J. Dorizas, Jackson, for appellant.
    Henry, Barbour & DeCell, William H. Barbour, Jr., Yazoo City, for appellee.
    Before PATTERSON, P. J., and ROBERTSON and BROOM, JJ.
   AFFIRMED.


text:
    Joseph Henry MITCHELL v. STATE of Mississippi.
    No. 49550.
    Supreme Court of Mississippi.
    April 6, 1977.
    Lawyer, Hudson & Welch, William T. Welch, Joseph P. Hudson, Theodore J. Lawyer, Gulfport, for appellant.
    A. F. Summer, Atty. Gen. by Catherine Walker Underwood, Special Asst. Atty. Gen., Jackson, for appellee.
    Before INZER, P. J., and SUGG and LEE, JJ., and WILLIAM R. LAMB, Commissioner.
   AFFIRMED.

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


text:
    William M. VANN v. STATE of Mississippi.
    No. 49589.
    Supreme Court of Mississippi.
    April 6, 1977.
    Garner & Garner, D. Pace Branan, Her-nando, for appellant.
    A. F. Summer, Atty. Gen. by John C. Ellis, Special Asst. Atty. Gen., Jackson, for appellee.
    Before GILLESPIE, C. J., and SMITH and WALKER, JJ.
   AFFIRMED.

PATTERSON and INZER, P. JJ., ROBERTSON, SUGG, BROOM and LEE, JJ., concur.


author: MADDOX, Justice. BLOODWORTH, Justice

text:
    In re TUSKEGEE INSTITUTE, a corporation, v. MAY REFRIGERATION COMPANY, INC., et al. Ex parte MAY REFRIGERATION COMPANY, INC.
    SC 1858.
    Supreme Court of Alabama.
    Jan. 14, 1977.
    Rehearing Denied Feb. 25, 1977.

      Michael I. Kent, Opelika, for petitioner.
    Fred D. Gray, Tuskegee, James Larry Lester, John S. Glenn, Opelika, for respondent.
   MADDOX, Justice.

May Refrigeration Company installed an air conditioning unit at Tuskegee Institute, but was never paid for it. Nevertheless, Tuskegee kept the unit and used it. May filed suit against Tuskegee and its agents. A jury awarded May $2,975 compensatory damages, and $3,500 punitive damages. Tuskegee appealed, and the Court of Civil Appeals reversed, holding that the evidence was insufficient to show that any employee of Tuskegee had actual or apparent authority to bind it. A fuller statement of the facts may be found in the opinion of the Court of Civil Appeals at 57 Ala.App. 344, 328 So.2d 598 (1976). We granted certiorari, primarily to review the question of ratification, an issue not addressed in the opinion of the Court of Civil Appeals, but an issue which was presented in the case as is apparent from a reading of the opinion of the Court of Civil Appeals. May did not request the Court of Civil Appeals, pursuant to Rule 39(k), Alabama Rules of Appellate Procedure, on application for rehearing, to add or correct the facts in its opinion on rehearing. May, apparently thinking it should have made the request, asked this Court to suspend the Rule 39(k) requirement and permit it to raise the question of ratification here. Because we can determine from a reading of the facts which are set out in the opinion of the Court of Civil Appeals that ratification was, in fact, an issue, the motion to suspend was not necessary.

A look at the record for a better understanding of the facts shows that the pre-trial order, which controls “the subsequent course of the action” (Rule 16, ARCP), reads, in pertinent part, as follows:

“Plaintiff contends that it furnished an air conditioning system for the defendant, Tuskegee Institute, said air conditioning system having been contracted for in writing by and between plaintiff and defendant, William B. Shell, an employee of Tuskegee Institute; that the defendant, Tuskegee Institute, ratified the action of the defendant, William B. Shell, in various oral conversations between representatives of the plaintiff and representatives of the defendant, Tuskegee Institute, including but not limited to, the defendants, William B. Shell and T. J. Pinnock. Plaintiff further contends that all work, labor and materials agreed to be furnished or performed by the plaintiff have been furnished or performed in full. Plaintiff contends that the defendants, William B. Shell, T. J. Pinnock and Tuskegee Institute, have conspired to defraud the plaintiff; and in fact the defendants, Shell, Pinnock and Tuskegee Institute, never intended to pay the plaintiff for the air conditioning system provided by it.” (Emphasis added).

We also find that the trial court charged the jury on the issue of ratification. Consequently, Tuskegee had the burden on appeal of showing how the jury verdict was prejudicial to it.

In view of the finding of fact by the Court of Civil Appeals that the evidence was insufficient to show that persons purported to act for Tuskegee had actual or apparent authority we think Tuskegee did show prejudice and we affirm the judgment of that court insofar as it reverses the jury award of $3,500 as punitive damages. However, Tuskegee has failed to show that the jury award of compensatory damages in the amount of $2,975, plus interest, is prejudicial; therefore, we reinstate the judgment of the trial court insofar as that portion of the judgment is concerned.

The Court of Civil Appeals cites City Stores Co. v. Williams, 287 Ala. 385, 252 So.2d 45 (1971), as follows:

“Under either theory, recovery under Count IV requires plaintiff to establish by the evidence that Shell, Pinnock, Haynes or other unnamed agents of Tuskegee were acting within the line and scope of their authority, either actual or apparent, at the time material false representations were made to plaintiff. City Stores Co. v. Williams, 287 Ala. 385, 252 So.2d 45. The question of agency is for the jury if there is sufficient evidence. Treadwell Ford, Inc. v. Wallace, 49 Ala.App. 308, 271 So.2d 505.”

In City Stores, the question was whether City Stores was doing business in Pike County. This Court said:

“An agent employed for a specific purpose is a special agent and the fiduciary relationship of principal and agent applies only to the acts within the agreement. Caldwell v. Caffey, 269 Ala. 543, 114 So.2d 560.
“Mulvaney’s trip to Pike County was not authorized by Loveman’s. Since Loveman’s apparently was not informed of Mulvaney’s trip, there can be no question of ratification. To hold that under the facts as shown even by Mulvaney’s testimony that he acted as agent for Loveman’s in Pike County would be pressing beyond permissible limits any application of the doctrine of general agency.” (Emphasis added).

It is apparent that this Court, in City Stores, recognized that if a principal has knowledge of acts performed on its behalf, even though unauthorized, then the principal can ratify those acts.

The Court of Civil appeals has failed to apply the principle of ratification to Count IV of the complaint.

As is set out in 3 Am.Jur.2d, Agency, § 175, pp. 560, 561:

“It is an established principle of the law of agency that where a person acts for another who accepts or retains the benefits or proceeds of his efforts with knowledge of the material facts surrounding the transaction, such other must be deemed to have ratified the methods employed, as he may not, even though innocent, receive or retain the benefits of, and at the same time disclaim responsibility for, the measures by which they were acquired. This general principle applies, for example, to an unauthorized contract effected, an unauthorized sale or lease of property made, or an unauthorized loan procured on behalf of the principal or purported principal. If the agent procures a contract by fraudulent or corrupt practices, although the principal has not been privy in any way to such conduct of his agent, yet by claiming the benefit of the contract, he must take it tainted as it may be with such practices.” (Emphasis added).
The Court of Civil appeals held:
“Subsequent to the meeting in which it was determined to pay Haynes 75% of the contract price, a letter was sent by Colonel Burton, an employee of Tuskegee, to J. A. Fernandes, purchasing agent for Tuskegee, informing him of the results of the meeting. After stating the amount agreed to be paid to Haynes, the letter stated that it was agreed that alternatives would be pursued to complete the unfinished 25% of the contract pertaining to the heating and air conditioning portion of the contract. On the date of the letter, the work of plaintiff Mays had been completed. The unit had been delivered and installed. The unfinished portion of the contract of Haynes was the connection of the unit to the power source. This work was not the responsibility of plaintiff Mays. Mays’ work had been completed at the time Haynes was paid 75% of the contract price.”

Our review of the evidence to better understand these findings in the opinion of the Court of Civil Appeals convinces us that different inferences can be drawn from the evidence regarding the 75-25% of the contract price. The jury could well have determined that the 25% was retained by Tuskegee to cover the air conditioning and heating portion of the contract.

Hence, we think the Court of Civil Appeals failed to accord to the jury verdict the usual presumption of correctness.

Our judgment of reversal is based on this reasoning. Even if the evidence was insufficient to show that Pinnock and Shell had actual or apparent authority to bind Tuskegee, as the Court of Civil Appeals found, Tuskegee nevertheless could ratify their acts.

It is the law that one may ratify the acts of another not done in the name of the former. Eagle Motor Lines v. Hood,, 256 Ala. 395, 55 So.2d 126 (1951); See also 3 Am.Jur.2d, Agency, § 171, p. 555.

The judgment of the Court of Civil Appeals which reverses the judgment of the circuit court awarding compensatory damages of $2,975, with interest, is itself reversed; otherwise, the judgment of the Court of Civil Appeals is affirmed.

May’s motion to suspend the rules to permit it to argue the ratification issue is unnecessary and is denied; Tuskegee’s motion to strike May’s appendix and briefs is denied.

REVERSED, IN PART; AFFIRMED, IN PART, AND REMANDED.

HEFLIN, C. J., and FAULKNER, JONES, SHORES and BEATTY, JJ., concur.

BLOODWORTH, ALMON and EMBRY, JJ., dissent.

BLOODWORTH, Justice

(dissenting).

I respectfully dissent. I cannot agree with the majority opinion authored by Mr. Justice Maddox. It reverses the Court of Civil Appeals on “the question of ratification,” holding that Tuskegee “could ratify” Pinnoek’s and Shell’s acts even though the evidence was “insufficient to show” that they had “actual or apparent authority to bind Tuskegee.”

The Court of Civil Appeals speaking through Presiding Judge Wright held that testimony (relating to ratification) was not relevant “to the question of fraudulent misrepresentation of Tuskegee or to the alleged conspiracy of Tuskegee.” I think the Court of Civil Appeals was correct.

Plaintiff below (petitioner May here) sued defendant below (respondent Tuskegee here) on four counts — three common counts and a count based on a conspiracy to defraud. The jury returned a verdict for petitioner solely on Count IV — conspiracy —assessing $2,975 (compensatory damages) and $3,400 (punitive damages).

The Court of Civil Appeals’ opinion discloses :

“The essence of Count IV is that Tuskegee, acting through authorized agents Shell, Pinnock or Haynes or other unnamed agents, wilfully or recklessly without knowledge misrepresented to plaintiff that if he sold to Tuskegee a heating and cooling unit for a specific sum, that Tuskegee would pay for it. In the alternative, Count IV alleges that acting in concert with its agents Tuskegee conspired to obtain from plaintiff a heating and cooling unit with the intent not to pay for it.” [Emphasis ours.]

So, plaintiff charged Tuskegee did the misrepresentation through its agents or conspired with its agents to obtain the unit with intent not to pay for it.

The Court of Civil Appeals then held:

“Under either theory, recovery under Count IV requires plaintiff to establish by the evidence that Shell, Pinnock, Haynes or other unnamed agents of Tuskegee were acting within the line and scope of their authority, either actual or apparent, at the time material false representations were made to plaintiff. City Stores Co. v. Williams, 287 Ala. 385, 252 So.2d 45. The question of agency is for the jury if there is sufficient evidence. Treadwell Ford, Inc. v. Wallace, 49 Ala. App. 308, 271 So.2d 505.”
* * * * * *
“It is therefore our opinion that there was no evidence that Shell, Pinnock or any other employee of Tuskegee, acting with actual or apparent authority from Tuskegee, made false representations to plaintiff with intent to defraud.
“It is further our opinion that the evidence discloses no employee other than Shell and/or Pinnock made any representation to plaintiff which caused it to deliver and install the heating and cooling unit on the premises. Therefore, even if the evidence was sufficient for the jury to find that Shell and/or Pinnock were acting within their authority as agents of Tuskegee in their dealing with plaintiff, the judgment against Tuskegee alone could not stand.
“When liability of a principal is vicarious and sought to be established through the tortious act of its agents, joined in the suit as defendants, a judgment against the principal alone is inconsistent and cannot stand. Title 7, Sec. 176(4); Aggregate Limestone Co. v. Robinson, 276 Ala. 338, 161 So.2d 820.”

The Court of Civil Appeals clearly points out that testimony as to ratification “may have been relevant to the common counts, but we see no relevance to Count IV upon which the verdict was returned.”

I agree. The principle of ratification may have been an issue under the common counts but clearly did not become an issue under the fraud or conspiracy count. The very nature of the charge in the latter count belies “ratification.” It expressly charges a willful misrepresentation by Tuskegee acting through its agents, etc., or a conspiracy between Tuskegee and its agents. How can the corporation ratify that? Either the corporation did misrepresent or conspire or it did not.

If petitioner May had wished he might have cross-appealed as to the jury’s verdict on the common counts. Not having done so, and “ratification” being properly an issue only as to these counts, how can he be heard to complain now?

This Court ought to quash the writ as improvidently granted or, as I suggest, affirm the Court of Civil Appeals’ decision.

ALMON and EMBRY, JJ., concur.

      . The Court of Civil Appeals erred in stating the amount of compensatory damages as $2,925.


author: WRIGHT, Presiding Judge.

text:
    TUSKEGEE INSTITUTE, a corporation v. MAY REFRIGERATION COMPANY, INC., a corporation, et al.
    Civ. 553.
    Court of Civil Appeals of Alabama.
    March 23, 1977.
   WRIGHT, Presiding Judge.

Upon remand to this court by the Supreme Court of Alabama, 344 So.2d 156, the judgment of this court, entered March 10, 1976, is hereby set aside and in accordance with the directions of the Supreme Court the judgment of the trial court awarding judgment for the plaintiff in the amount of $2,975.00, with interest, is affirmed but the award therein of $3,500.00 punitive damages is reversed and set aside.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

BRADLEY and HOLMES, JJ., concur.


author: BEATTY, Justice.

text:
    Shearn MOODY, Jr. v. STATE of Alabama ex rel. Charles H. PAYNE, Commissioner of Insurance and Receiver of Empire Life Insurance Co. of America.
    SC 931, 1268 and 1270.
    Supreme Court of Alabama.
    Feb. 11, 1977.
    Rehearing Denied April 22, 1977.

      See also, 295 Ala. 299, 329 So.2d 73.

      Frank G. Newman, for Newman, Shook and Newman, Dallas, Tex., Drayton N. James, for Clark & James, Birmingham, Martin Paul Solomon, New York City, for appellant Moody.
    Rogers, Howard, Redden & Mills, Birmingham, for intervenors, W. B. Sanford and G. L. Myers, appellants.
    James W. Webb and Edwin K. Livingston, Montgomery, for Charles H. Payne, Receiver of Empire Life Insurance Co.
    Drayton Nabers, Jr. Birmingham, for Protective Life Ins. Co.

      . Chief Justice TORBERT was not a member of the Court at the time this case was orally argued. However, he has carefully listened to the tape recordings of oral argument and studied the briefs. Code of Alabama, Tit. 13, § 7; Alonzo v. State ex rel. Booth, 283 Ala. 607, 219 So.2d 858.

   BEATTY, Justice.

This is an appeal from an adjudication of insolvency, an order of liquidation and approval of a reinsurance agreement as ordered by the Circuit Court of Jefferson County. We affirm.

The material facts of this case are reported in Moody v. State ex rel. Payne, Commissioner, 295 Ala. 299, 329 So.2d 73 (1976), thus only a brief factual review is necessary here.

On April 13, 1972 the Commissioner of Insurance of the State of Alabama instituted a receivership proceeding in the Circuit Court of Jefferson County against Empire Life Insurance Company, an Alabama corporation. The trial court placed Empire in receivership on June 29, 1972, appointed the Commissioner as receiver, and on September 12, 1973 entered an order authorizing him to solicit offers from other insurance companies for the reinsurance of Empire. Later, in January, 1974 the receiver petitioned the Court for an order of liquidation of Empire and for approval of a reinsurance agreement presented by Protective Life Insurance Company, which later intervened. Shearn Moody, chairman of the board and the largest single stockholder of Empire, intervened. After a hearing on the receiver’s petition, the relief requested was granted on June 14, 1974.

On October 15, 1974, Moody filed a motion, later amended, under Rule 60(b), ARCP, to introduce new evidence establishing the solvency of Empire as of the date of the liquidation decree. This motion was overruled on November 22, 1974. Subsequently, the receiver petitioned for approval of an amendment to the reinsurance agreement. This petition was granted over Moody’s objections, and on April 10, 1975, the trial court by decree authorized the receiver to execute the amendment.

Essentially, Moody raises three issues: (1) that the trial court erred in denying Moody’s 60(b) motion; (2) that policyholders of Empire were discriminated against as a result of the trial judge’s reinsurance order; and (3) that the trial court abused its discretion in ordering liquidation and reinsurance. We shall take up the issues presented seri-atim.

Moody contends that the trial court erred in denying his Rule 60(b) motion for relief from the decree of June 14,1974. Evidence he obtained from a post-judgment appraisal of one of Empire’s assets, an interest in the Libbie Shearn Moody Trust, establishing an asset value of approximately $14,000,000 instead of the $4,250,000 value given it by the Commissioner, he asserts, justified a new hearing. The appraisal referred to in his motion was made by Mr. Harold Crandall, who had testified as an expert witness for Moody at the April, 1974 hearing. Although the Crandall appraisal was referred to in the motion as Exhibit B, it was neither attached to the motion nor submitted to the Court. Indeed, on November 15,1974 when Moody’s attorneys argued the motion, they submitted a different appraisal, one made by Dr. Joseph Trosper. Trosper’s appraisal expressly recited that its author had not been contacted by Moody until October 18, 1974, three days after Moody’s Rule 60(b) motion was filed. Moody did not explain why this appraisal could not have been either the subject of his motion or procured prior to the April hearing..

Rule 60(b)(2), ARCP, authorizes relief from a final judgment for:

newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial. . . . (Emphasis supplied.)

Was appellant's evidence “new” or “newly discovered?” There can be no Rule 60(b)(2) relief for evidence which has come into existence after the trial is over simply because such a procedure would allow all trials perpetual life. “Newly discovered evidence” means evidence in existence at the time of trial of which the movant was unaware. Prostrollo v. Univ. of S. Dak., 63 F.R.D. 9 (D.C.S.D.1974). And for a litigant to obtain a new trial on the ground of newly discovered evidence, it must appear that his reasonable diligence before trial would not have revealed this evidence which he failed to discover. Plisco v. Union Ry. Co., 379 F.2d 15, 16 (CCA 3rd 1967). Hence, the trial court did not abuse its discretion in denying Moody’s motion since this evidence was not even created until after October 18, 1974, over four months after the decree ordering liquidation and approving the reinsurance treaty. Any attempt by Moody to explain away his unawareness would have been inapt in those circumstances.

Appellee contends that Moody’s assertion of discrimination against the policyholders fails because Moody did not raise this issue properly in the trial court, that is, that discrimination was raised for the first time in Moody’s objections to the trial court’s decree authorizing execution of the agreement to effectuate the reinsurance treaty, issued on April 10, 1975, almost a year after the trial court had approved the reinsurance agreement. This position overlooks the fact that the trial court, trying the case under equity rules, expressly gave the parties a standing objection to “every bit of evidence” and “to every ruling.” In this posture we consider that the objection was timely made. Next, the appellee maintains that the trial court was not required to allow the objection of discrimination because Moody himself was found by the trial court to be in open contempt for violating the injunction referred to in 295 Ala. 299, 329 So.2d 73, 10 ABR 543, 546-554 (1976). While it may be true as a general proposition that “[a] party in contempt is not entitled to insist upon a hearing or trial of the case out of which the contempt arose until he first purges himself of the contempt,” Wilkinson v. McCall, 247 Ala. 225, 23 So.2d 577 (1945), nevertheless for due process reasons “[t]he power to deny a hearing to a person in contempt does not include the power to refuse to such person in contempt the right to defend in the main case on the merits.” McCollum v. Birmingham Post Co., 259 Ala. 88, 65 So.2d 689 (1953). By objecting to discrimination against policyholders, Moody appears to have been doing just that, defending such interest as he claims in the main case on the merits of the reinsurance agreement.

Appellees assert further that Moody has no standing to complain of the trial court’s approval of the reinsurance agreement. On the other hand, Moody contends that his position as the largest single stockholder of Empire, and as a creditor of Empire, gave him the standing to challenge the agreement which, he contends, “deprives stockholders of their entire equity without providing them with any benefits in return and which deprives creditors of their contractual rights with Empire.”

Of course Moody must have some direct interest in the wrongs he alleges, otherwise he has no standing to complain. Cf. Peterson v. Hamilton, 286 Ala. 49, 237 So.2d 100 (1970); U.S. v. 936.71 Acres of Land, 418 F.2d 551 (CCA 5th 1969). The record does not reveal that prior to this appeal Moody has ever claimed to be a policyholder of Empire. His claim to be a creditor is based upon a debenture bond which, he asserts, he received from Empire and which is alluded to as part of an exhibit introduced at the 1972 hearing, and a guaranty of an indebtedness of Credit Factoring, Inc. made by Empire to W. L. Moody and Company, Bankers, of which Moody contends he is sole owner. But Moody never did plead his interest as a creditor prior to the April, 1974 hearing when liquidation of Empire was ordered and approval of the reinsurance agreement was granted by the trial court, and it is now too late to bring to the trial court’s attention any such claimed interest. Had he properly asserted this standing, nevertheless the reinsurance agreement does not appear discriminatory. The policyholders, some forty thousand in number, result in part from acquisitions and mergers of many insurance companies with Empire, and they represent many different insurance plans. The reinsurance plan contains provisions which accommodate the various policy distinctions. To be sure, all of the policies are not alike, and the law does not require that they be treated alike. Different classifications based upon substantial differences are not unlawful discrimination. State v. Pure Oil Co., 256 Ala. 534, 55 So.2d 843 (1951); Carpenter v. Pac. Mut. Life Ins. Co., 10 Cal.2d 307, 74 P.2d 761 (1937); affirmed Neblett v. Carpenter, 305 U.S. 297, 59 S.Ct. 170, 83 L.Ed. 182 (1938).

Approximately one-half of the Empire policyholders reside in Texas, and most of Empire's physical assets are located in that state. From an order issued by the 53rd Judicial District Court of Texas ordering the Texas ancillary receiver to cooperate in the execution of the reinsurance agreement, Moody appealed to the Court of Civil Appeals of Texas, claiming unlawful discrimination among Empire’s policyholders and creditors. Citing the voluminous testimony relating to the fairness of the agreement and the special provisions formulated to produce equitable benefits for each group, that court found no discrimination. We agree. Indeed, it is difficult to imagine any other course, since the policyholders before and after the agreement, had only the right to file a claim against the receiver of the insolvent company for the amount of the cash value of the policies. Carpenter v. Pac. Mut. Life Ins. Co., supra. See also Fletcher v. Tuscaloosa Fed. Sav. & Loan, 294 Ala. 173, 314 So.2d 51 (1975).

The record in this case reveals that Empire Life Insurance Company of America was in precarious financial condition some three years before it was placed in receivership. A panel composed of the insurance commissioners of five states attempted to effect rehabilitation without receivership, and although some improvement resulted, an examination conducted by the insurance departments of Texas, Alabama and South Dakota found Empire insolvent in excess of six million dollars and impaired in excess of ten million dollars. It was then that formal receivership proceedings were commenced and the then commissioner of insurance of Alabama was appointed receiver. Because of the six million dollar insolvency, the trial court restricted payments of cash values of policies to fifty percent when voluntarily withdrawn prior to death. Moody did not contest the finding of insolvency and made no appeal from the trial court’s ruling of June 29, 1972. Apparently Moody accepted the insolvency finding because when the receiver obtained approval from the lower court to solicit reinsurance proposals, Moody was one of those who submitted plans for the rehabilitation of the company. Moreover, Moody made no issue of Empire’s insolvency during the lengthy hearing in April, 1974 when the issue of rehabilitation or reinsurance was aired. Accordingly, Moody’s attempts to raise that issue on this appeal must also fail. Dennis v. Hines, 262 Ala. 541, 80 So.2d 616 (1955).

The record reveals more than ample evidence upon which the trial court could have determined that further efforts at rehabilitation would be useless, and that reinsurance was necessary to prevent loss of all policyholder benefits to them. The Protective Life Insurance Company was one of those tendering a reinsurance agreement, and there is evidence in the record of a comparative analysis establishing it as the better of those proposed. Protective’s plan guaranteed payment of all death benefits, as well as all other maturity benefits, on all Empire policies. It also provided for full payment of all cash benefits accruing after September 15, 1972. This would guarantee to all policyholders who continued to pay premiums their full policy benefits which would be attributable to their current premiums, i.e., cash surrender value, loan value, etc. It provided for a limitation on those cash benefits which policyholders could exercise voluntarily, simply because Empire’s assets were worth much less than the reserve liabilities which Protective would assume. The effect of the “moratorium,” thirty-five percent, later increased by the trial court to fifty percent because of the expense of defending Moody’s numerous lawsuits, would be to reduce the reserves Protective would have to establish. However, Protective agreed to a ten-year limit upon the moratorium, thus providing full policy benefits at the end of ten years to policyholders accepting the plan. In executing its plan, Protective agreed to place with the receiver an amount of assets equal to the reserve liability of every policy of those policyholders rejecting the plan, less the moratorium amount. Because such a payment by Protective represented the value of the agreement to accepting policyholders as well, both classes of policyholders, those accepting and those rejecting, were treated equally. Protective further agreed to make an annual calculation of the ratio of Empire’s assets to its reserve liabilities and to reduce the amount of the moratorium as that ratio improves. Also, Protective agreed to receive no profit until this moratorium is eliminated and all policyholders’ benefits are restored to accepting policyholders. Any profits were to be added to Empire’s assets.

Non-policyholder creditors whose claims were not assumed by Protective were provided for by having the receiver retain from the assets of Empire a two million dollar fund for the payment of their claims. This fund was specified in the advertisements for reinsurance bids, and the evidence is uncontroverted that it is sufficient for the equitable payment of such claims.

Under the facts of this case we cannot state that the trial court abused its discretion by ordering liquidation and reinsurance. The commissioner of insurance has followed the applicable statutory procedures of Title 28A, Alabama Code, relative to these delinquency proceedings, and the evidence adduced sufficiently established insolvency in the first instance, the necessity for liquidation, and a fair and equitable reinsurance plan thereafter. The findings and conclusions of the trial court are due to be affirmed. Stephens v. Stephens, 280 Ala. 312, 193 So.2d 755 (1966); First Nat. Bank of Birmingham v. Brown, 287 Ala. 240, 251 So.2d 204 (1971).

AFFIRMED.

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


author: BRADLEY, Judge.

text:
    Georgie THORNE v. Dennis F. THORNE.
    Civ. 977.
    Court of Civil Appeals of Alabama.
    March 30, 1977.

      George E. Trawick, Ariton, for appellant.
    M. Dale Marsh of Cassady, Fuller & Marsh, Enterprise, for appellee.
   BRADLEY, Judge.

This appeal is from a final decree of the Circuit Court of Coffee County, Alabama modifying a prior divorce decree by changing custody of two minor children from the mother to the father.

Georgie Thorne, the mother, and Dennis Thorne, the father, were divorced on the ground of incompatibility in July 1974 and the mother was awarded custody of the two minor children born of the marriage. The father was given reasonable visitation rights. In March 1975, on motion of the father, the Circuit Court of Coffee County entered an order modifying the divorce decree by precisely defining the times at which the father could have the children visit with him. In October 1975 the divorce decree was again modified on petition of the father by changing the specified periods of visitation.

The action now before the court was initiated on July 1, 1976 when the father once again filed a petition alleging that there had been conflicts and disputes between the parties during the father’s exercise of his visitation rights “which materially affect the welfare of the minor children in this cause and which are materially detrimental to the Defendant exercising his visitation rights.” The father specifically requested the court to “enter such orders and decrees as are necessary to insure the Defendant his rights of visitation with the minor children without conflicts and disagreements,” and generally asked for “such other, further, and different relief as the Court may deem proper under the circumstances.”

A hearing on the petition was held. Both parties, represented by counsel, appeared and testified. Testimony by the father and his present wife dealt solely with events which transpired between the parties when the father would arrive to pick up the children in order to exercise his visitation rights.

At the conclusion of the present Mrs. Thorne’s testimony the following transpired:

“QUESTIONS ASKED BY THE COURT:
“Q. Do you feel that you and your present husband could look after these children if they were placed in your permanent care and custody here in Enterprise?
“A. I sure do, because I don’t have any children.
“Q. Do you think that would end this conflict and be in the best interest of these children to be removed from the custody of Mrs. Thorne.
“A. I really don’t know.
“THE COURT: That’s all.”

The mother then presented her evidence through her own testimony and that of her parents, with whom she and the children live. This testimony covered not only the conflicts and misunderstandings which occurred over the father’s exercise of his visitation rights but also touched upon the children’s well-being and care while in her custody. The children were depicted as being loved and well cared for in every respect by both their mother and their grandparents.

At the conclusion of the hearing the circuit court entered a decree removing custody of the children from the mother to the father; allowing the mother the same visitation rights as granted the father in the October 1975 decree; and requiring the mother to post a $2,000 bond prior to the exercise of her visitation periods. The mother appeals.

Two questions are presented for decision. The first is whether the trial court’s modification of the prior divorce decree by changing custody of the children at the conclusion of a hearing to determine modification of the father’s visitation rights denied due process to the mother in that she was not given notice that the issue of custody was to be decided. The second is whether the trial court abused its discretion by changing custody from the mother to the father where there was no showing of changed circumstances to justify the change. We hold the trial court erred in both respects and reverse.

It is apparent from the petition filed by the father and his testimony that the father’s sole reason for going before the Coffee County Circuit Court was to obtain a further clarification of his visitation rights under the divorce decree, specifically that he be allowed to pick up the children at some place other than the mother’s home, in the hope that the arguments and fights which had occurred in the past would thereby cease. He did not ask for custody, did not question the mother’s fitness for custody, or adduce any evidence that the children would be better off in his custody. The first indication to either party that custody of the children might be an issue was when, at the close of the father’s evidence, the trial judge asked the father’s present wife whether she thought it would be in the best interest of the children to be removed from the mother’s custody. The mother contends this was not adequate notice to her of the custody issue and therefore she was denied due process of law. We agree.

The question is not whether a trial judge, sitting in equity to determine rights as between parents which affect the welfare of their minor children, can grant relief for which neither party asked, but rather whether the judge can grant different relief without giving the parents adequate notice and an opportunity to be heard.

An equity court has wide judicial discretion in proceedings involving the welfare of children. In Hayes v. Hayes, 192 Ala. 280, 68 So. 351 (1915), it was said that when an equity court has acquired jurisdiction of a child as to the child’s custody and control, the child becomes a ward of the court and the parties to the suit are of secondary importance. The court may make any order or decree regarding the welfare of the child as its sound discretion dictates, Hayes was followed in Ex parte Bates, 247 Ala. 391, 24. So.2d 421 (1945).

In Ex parte White, 245 Ala. 212, 16 So.2d 500 (1944), the supreme court quoted Judge Cardozo’s discussion of an equity court’s jurisdiction and power in child custody proceedings brought independent of a divorce action in Finlay v. Finlay, 240 N.Y. 429, 148 N.E. 624 (1925):

“ ‘. . . It is not a remedy by suit. It is a remedy by petition. . . . The chancellor in exercising his jurisdiction upon petition does not proceed upon the theory that the petitioner, whether father or mother, has a cause of action against the other or indeed against anyone. He acts as parens patriae to do what is best for the interest of the child.
He is not adjudicating a controversy between adversary parties, to compose their private differences. He is not determining rights “as between a parent and a child,” or as between one parent and another. . . . Equity does not concern itself with such disputes in their relation to the disputants. Its concern is for the child.’ ” 245 Ala. at 214, 16 So.2d at 502.

In Stephens v. Stephens, 253 Ala. 315, 45 So.2d 153 (1950), a mother had petitioned the court for custody of her children during the pendency of her appeal from a decree divorcing her from the children’s father. The supreme court indicated that the petition for custody and the appeal from the divorce decree were independent actions, neither one affecting the other. It then said:

“. . . The question of the custody of infant children is not an adversary proceeding between parents in the eyes of the law, but is a matter within the peculiar discretion of the chancellor as to the welfare of wards of the court. He acts as parens patriae and any matter affecting their rights or interests are within his peculiar jurisdiction, and it is immaterial whether that jurisdiction is invoked by an independent suit or by petition in the same cause. Any pleading which shows upon its face that the welfare of an infant requires an order with respect to its custody or support is sufficient to that end.” 253 Ala. at 319-20, 45 So.2d at 157.

Ex parte White, supra, and the Stephens case were both cited with approval by this court in Leigh v. Aiken, 54 Ala.App. 620, 311 So.2d 444 (1975). However, while recognizing the broad judicial discretion of an equity court in its role as protector of the welfare of minor children within its jurisdiction, this court also stated the equity court’s discretion is not unlimited or arbitrary, but rather subject to the limitation that the court may not act contrary to the best interest of the child.

There is another limitation placed on an equity court in exercising its discretion in child custody disputes between parents, and that is the right of the parents to due process of law in the proceedings. Danford v. Dupree, 272 Ala. 517, 132 So.2d 734 (1961). There the trial court prejudged a mother’s petition to regain custody of her child before the mother had been given an opportunity to present evidence in support of her petition, thereby denying the mother her opportunity to be heard. The supreme court said:

“In dealing with such a delicate and difficult question — the welfare of a minor child — due process of law in legal proceedings should be observed. These settled courses of procedure, as established by our law, include due notice, a hearing or opportunity to be heard before a court of competent jurisdiction. Tillman v. Walters, 214 Ala. 71, 108 So. 62.” 272 Ala. at 520, 132 So.2d at 735.

Dictum in an earlier case also states that a parent’s right to the custody of his or her minor child cannot be finally terminated unless the parent has been given due notice and an opportunity to be heard. Ex parte White, supra. There the supreme court upheld a temporary award of custody to the father which had been granted without notice to the mother, but added the provisional change in custody by a summary proceeding is permissible only if an adequate remedy is available by which the parent may afterward have his or her rights presented to a court of competent jurisdiction.

The citation to Tillman v. Walters, 214 Ala. 71, 108 So. 62 (1925) in Danford v. Dupree, supra, indicates that the court there considered the Constitution of the United States, rather than the Alabama Constitution of 1901, as the due process source. However, neither the Danford decision nor Ex parte White, supra, discuss the nature of the right to due process. Our research reveals well-founded reasons for the result reached in these decisions.

The Supreme Court of the United States in Hannah v. Larche, 363 U.S. 420, 80 S.Ct. 1502, 4 L.Ed.2d 1307 (1960), discussing the concept of due process, observed:

“ ‘Due process’ is an elusive concept. Its exact boundaries are undefinable, and its content varies according to specific factual contexts. . . . Therefore, as a generalization, it can be said that due process embodies the differing rules of fair play, which through the years, have become associated with differing types of proceedings. Whether the Constitution requires that a particular right obtain in a specific proceeding depends upon a complexity of factors. The nature of the alleged right involved, the nature of the proceeding, and the possible burden on that proceeding, are all considerations which must be taken into account.” 363 U.S. at 442, 80 S.Ct. at 1515.

Thus, in deciding whether a parent has a right to due process when a party to a proceeding to determine custody of his or her minor child, the court will consider three factors: the nature of the right involved, the nature of the proceeding, and the possible burden on the proceeding.

With regard to the nature of the right involved, both Danford and White simply assume an inherent right on the part of a parent to custody of his or her child. Decisions of the United States Supreme Court indicate that the right is protected by the Constitution of the United States.

The United States Supreme Court in May v. Anderson, 345 U.S. 528, 73 S.Ct. 840, 97 L.Ed. 1221 (1953), recognized that a mother’s right to custody of her children is far more precious than her property rights in alimony by holding that full faith and credit need not be given to that portion of an ex parte divorce decree terminating her right to custody of children born of the marriage.

In Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972), the Court held that under the due process clause of the fourteenth amendment the father of illegitimate children was entitled to a hearing on his fitness as a parent before the state could take his children away from him. With regard to the nature of the right involved, the Court said:

“The private interest here, that of a man in the children he has sired and raised, undeniably warrants deference and, absent a powerful countervailing interest, protection. It is plain that the interest of a parent in the companionship, care, custody, and management of his or her children ‘come[s] to this Court with a momentum for respect lacking when appeal is made to liberties which derive merely from shifting economic arrangements.’
“The Court has frequently emphasized the importance of the family. The rights to conceive and to raise one’s children have been deemed ‘essential,’ ‘basic civil rights of man,’ and ‘[r]ights far more precious . . . than property rights.’ ‘It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.’ The integrity of the family unit has found protection in the Due Process Clause of the Fourteenth Amendment, the Equal Protection Clause of the Fourteenth Amendment, and the Ninth Amendment.” 405 U.S. at 651, 92 S.Ct. at 1212 (citations omitted).

It would appear from the above cited cases that a natural parent’s right to custody of his or her child is a right protected by the Federal Constitution.

With regard to the nature of the proceeding, the question is whether affording due process to the parent of a child in a custody proceeding interferes with the court’s responsibility to protect the welfare and best interest of the child. This requires a balancing of the right of the parent, discussed above, against the interest of the State of Alabama, since the child becomes a ward of the court, which is in turn an arm of the state. It should be kept in mind that at issue is the due process requirement of notice to the parent that his or her right to custody of the child is to be considered by the court.

An equity court has a heavy burden in proceedings involving minor children. In Wise v. Watson, 286 Ala. 22, 236 So.2d 681 (1970), our supreme court said at 286 Ala. 25, 236 So.2d 684, “[I]t is the [equity] court’s duty to guard and protect the interest of its infant wards with scrupulous care,” (emphasis added).

In Leigh v. Aiken, supra, this court in even stronger language said:

“The public policy that the state has a compelling interest in determining the best interest and welfare of a child brought within the protective jurisdiction of its courts sitting in equity is beyond dispute. Such protection extends to the procedural process of exercising its jurisdiction as well as future custody disposition.” 54 Ala.App. at 626, 311 So.2d at 450.

Although the state has a compelling interest in determining the best interest and welfare of a child, the interest is not compelling enough to allow the determination to be made without notice to the child’s parents. The purpose of requiring notice is to preserve the fairness of the hearing; and it is of vital importance to the child, as well as the parent, that the hearing be fair. A parent must have notice of the issues the court will decide in order to adduce evidence on those issues before the court, to give the court a basis from which a determination most beneficial to the child can be made. Otherwise, the child, rather than being helped, might even be harmed.

In the case before us, the mother through her own testimony and that of her parents attempted to show that the children were well-off in her custody. However, had she known prior to the hearing that the court would consider her fitness for custody she could have—-if she so desired—presented other witnesses and evidence to support her contention that she should retain custody of her children.

Finally, we consider the burden requiring notice would place on the proceeding. We think such burden, if any, would be minimal. Only in rare circumstances would granting a continuance result in detriment to the child. In the few situations where it appears the actual health and physical well-being of the child are in danger, the court has authority under Ex parte White, supra, to make a temporary grant of custody until a final determination can be made. Thus, we conclude the parental right to due process far outweighs any burden that would be placed on the proceeding to determine that right.

The appellee-father relies on the rule that mere legal niceties are not required in the pleadings in child custody proceedings and the court; is not bound by any strict rule of pleading. Broadus v. Broadus, 283 Ala. 406, 217 So.2d 811 (1969); Barnett v. Barnett, 270 Ala. 489, 120 So.2d 128 (1960). We do not find this principle applicable to the case at bar. Nor do the cases cited by the father support such a proposition. In Broadus the mother contested the award of partial custody and visitation rights to the child’s paternal grandparents on the ground that the grandparents had not been made parties by the pleadings. The court, in upholding the award, specifically found that the paternal grandparents had been brought into the case on their petition to show cause, signed by them as third party complainants, and that the issue as to their participation had been fully litigated. In Barnett the father, who had originally been awarded custody of the child in question, complained that the mother’s petition seeking a change in custody did not show on its face a change of conditions sufficient to warrant an alteration of the original custody decree and that the trial court erred in overruling his demurrer to the pleading. The supreme court upheld the trial court, stating:

“Although the petition may not be as factual in its averments as might be desired or required under ordinary rules of pleading, we think it is sufficient to invoke the jurisdiction of the equity court, for it shows a change of a condition which apparently played a large part in the court’s decision to award the custody of the child to the father rather than to the mother.” 270 Ala. at 490-91, 120 So.2d at 130.

Thus in both Broadus and Barnett the pleadings were sufficient to give notice to the opposing party of the issues to be litigated. That is not the case before us.

The father would also have us apply Rule 15(b), ARCP, and thereby deem the pleadings amended so as to include the issue of custody of the children. He says that the mother introduced evidence concerning the welfare of the children in her custody and that her attorney did not object to the trial court’s interjection of the custody issue by its question to the present Mrs. Thorne, set out above. We find Rule 15(b) to be of no aid to the father. Although decisions of our supreme court hold that amendment under Rule 15(b) is to be liberally allowed, there is a caveat attached: amendment is not to be allowed if the opposing party will be unduly prejudiced by the amendment. Stead v. Blue Cross-Blue Shield of Alabama, 294 Ala. 3, 310 So.2d 469 (1975); Miller v. Holder, 292 Ala. 554, 297 So.2d 802 (1974). To say that denial of due process by failure to give notice of an issue to be decided is prejudice to the uninformed and opposing party is understatement. Rule 15(b) cannot be applied in such a situation.

We hold that the trial court erred to reversal by changing custody of the children from the mother to the father without giving the mother notice that custody was to be decided.

We further hold that the trial court abused its discretion by changing custody in the absence of a showing of changed circumstances.

It is clear that a decree fixing custody of a minor child is conclusive of the interests of the child and the rights of the parents as long as the status of the parties at the time of the decree remains without material change. Anonymous v. Anonymous, 277 Ala. 634, 173 So.2d 797 (1965); Messick v. Messick, 261 Ala. 142, 73 So.2d 547 (1954). Modification of a child custody decree must be based upon allegation and proof showing a material change of circumstances has occurred affecting the best interests of the child since the last decree, Turner v. Bynum, 56 Ala.App. 489, 323 So.2d 377 (1975), and the burden of proving a material change in circumstances is on the proponent of such change. Lawson v. Jennings, 52 Ala.App. 582, 296 So.2d 176 (1974). (We note in passing there was no allegation of changed circumstances before the trial court, since the father did not so allege in his petition and did not request that custody be taken from the mother and placed in him.)

We would also point out that courts seldom deprive a mother of the custody of small children unless misconduct is imputed to her or she is found to be unfit. Cox v. Cox, 48 Ala.App. 574, 266 So.2d 784 (1972); Rowe v. Rowe, 45 Ala.App. 367, 231 So.2d 144 (1970). In the case at bar there was no evidence of the mother’s misconduct or unfitness. The mother, however, did produce evidence that the children were well cared for, that they were happy, well adjusted children and that they displayed no undue emotional distress except during some of the father's visits.

The only evidence that could be considered to support an inference of changed circumstances such as would authorize a change of custody arose from the conduct of the parents at the times the father sought to exercise his visitation rights awarded by court decree. The trial court determined that the conduct of the parties at the time the children were exchanged adversely affected the health of the children.

The evidence shows that the disharmony which no doubt was the ground of the parties’ divorce usually surfaced at visitation time. The most egregious dispute which occurred ended in a tugging match between the parents in the front yard of the mother’s and children’s residence, with the children’s suitcase torn and their clothes scattered about the yard. Neither party denied these facts and both agreed that the scene upset the children. Both parties agree that the next time the father appeared to get the children their son did not want to leave with his father and was so nervous and upset that he became physically ill.

Notwithstanding the fault of both parties in precipitating disputes at visitation time, we are convinced that the evidence is completely insufficient to warrant a finding of a material change in circumstances since the last decree to authorize a change in custody of these two small children from the mother, with whom they have lived all their lives, to the father. The trial court thereby abused its discretion in changing custody of the children from the mother to the father.

Although we have said the trial court erred in changing custody of the children to the father, we consider that we would be remiss in not pointing out to both parents that they have said that they love their children, yet they have not placed the best interests of their children ahead of their obvious dislike for each other. The father has on more than one occasion opened the children’s suitcase, criticized the mother in the presence of the children for failure to pack clothes he thinks suitable for them to wear while visiting him, and demanded different clothing. Predictably, this conduct has provoked unnecessary hostility and conflict. The mother, for her part, as contributed to the disharmony between the two by abiding by the letter of the custody decree concerning the father’s visitation periods in such an inflexible manner that the father has found it necessary to have the terms of visitation altered by several decrees.

We think these problems can be easily solved if the father will obtain clothing he finds suitable for the children and keep that clothing at his house for their use while visiting him. The mother should make every effort to comply with the father’s request for a different visitation time or date when she has received prior notice of the requested change. It is our sincere hope that these two parents will put aside, if not eliminate, their animosity toward each other so that their children can grow up knowing and sharing in the love and companionship of both their parents.

REVERSED AND REMANDED.

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