author: LEE, Justice:

text:
    Phillip G. YATES v. STATE of Mississippi.
    No. 49496.
    Supreme Court of Mississippi.
    Feb. 16, 1977.
    Phillip G. Yates, pro se.
    A. F. Summer, Atty. Gen. by Catherine Walker, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before INZER, SUGG and LEE, JJ.
   LEE, Justice:

ON PETITION FOR WRIT OF ERROR CORAM NOBIS

This is a pro se appeal by Phillip G. Yates from an order of the Circuit Court of George County denying his Petition for Writ of Error Coram Nobis and Motion to Vacate Judgment. We affirm.

On February 18,1964, Yates was indicted for murder, armed robbery and kidnapping by the George County Grand Jury and he entered pleas of guilty to all three (3) indictments. A jury was impaneled to determine punishment on the murder charge, and the court sentenced him to death upon return of the jury verdict. Sentences were not imposed on the guilty pleas to armed robbery and kidnapping.

This Court reversed the case, it was tried again, and Yates was sentenced to death a second time. For a period of eight (8) years the case was litigated in the State and Federal courts when finally, in 1972, the Federal court directed the State trial court to resentence Yates to a term prescribed by law, but for less than the penalty of death. Yates v. Cook, 408 U.S. 934, 92 S.Ct. 2850, 33 L.Ed.2d 746 (1972); Yates v. Breazeale, 466 F.2d 500 (5th Cir. 1972).

Appellant was resentenced on November 13, 1972, to life imprisonment on the murder charge, and, at the same time, he was sentenced to life imprisonment on the armed robbery charge, and to thirty (30) years imprisonment on the kidnapping charge, the sentences to run consecutively. He contends the judgments on the armed robbery and kidnapping charges should be vacated, or, in the alternative, he should be allowed to enter pleas of not guilty to those charges, and he assigns the following errors:

(1) The charge of murder is a greater offense, and the charges of armed robbery and kidnapping are essential, interrelated elements of appellant’s murder charge, therefore, the lesser charges are merged in the greater charge.

(2) Appellant was not sentenced on the armed robbery and kidnapping charges for eight (8) years, thereby denying him the right to a speedy trial.

(3) After a delay of eight (8) years appellant should have been allowed to change his plea from guilty to not guilty on the charges of armed robbery and kidnapping.

I.

Did appellant’s three guilty pleas on charges of murder, armed robbery and kidnapping merge into the murder charge?

Appellant was indicted [see Appendix] for murder under Mississippi Code Annotated § 97-3-19(l)(a) [Section 2215, Mississippi Code of 1942 — amended 1974 to provide for capital murder]. That section follows:

“The killing of a human being, without the authority of law, by any means or in any manner, shall be murder in the following cases:
(a) When done with deliberate design to effect the death of the person killed, or of any human being;
(b) When done in the commission of an act eminently dangerous to others, and evincing a depraved heart, regardless of human life, although without any premeditated design to effect the death of any particular individual;
(c) When done without any design to effect death, by any person engaged in the commission of the crime of rape, burglary, arson, or robbery, or in any attempt to commit such felonies.”

Subsection (c) is the felony-murder statute, and the argument of appellant assumes that he was indicted under that section resulting in double jeopardy to him in violation if his constitutional rights. Appellant’s written confession introduced on the murder trial indicated that “[H]e got scared and did not know what to do, and he decided to kill Gordon.” Yates v. State, 251 Miss. 376, 392, 169 So .2d 792, 800 (1964).

It is clear from that case Yates knew he was entering pleas of guilty to three (3) separate and distinct charges and indictments.

This Court discussed double jeopardy in Burton v. State, 226 Miss. 31, 79 So.2d 242 (1955):

“The prohibition of the common law and of the constitution is against a second jeopardy for the same ‘offense’, that is, for the identical act and crime. Teat v. State, 53 Miss. 439, 24 Am.Rep. 708; Smith v. State, 67 Miss. 116, 7 So. 208; Huffman v. State, 84 Miss. 479, 36 So. 395; Cutshall v. State, 191 Miss. 764, 4 So.2d 289; Berry v. State, 195 Miss. 899, 16 So.2d 629. Or, as expressed in a number of cases, to entitle the accused to plead former jeopardy, the offenses charged in the two prosecutions must be the same in law and in fact. 22 C.J.S. p. 414, Criminal Law, par. 278; and eases cited.

There is a distinction between an offense and the unlawful act out of which it arises. And the test is not whether the accused has been tried for the same act, but whether he had been put in jeopardy for the same offense. State v. Rose, 89 Ohio St. 383, 386, 106 N.E. 50, L.R.A. 1915A 256; State v. Billotto, 104 Ohio St. 13, 135 N.E. 285; People v. Allen, 368 Ill. 368 14 N.E.2d 397; State v. Fredlund, 200 Minn. 44, 273 N.W. 353, 113 A.L.R. 215.

In the case of State v. Rose, supra, the Court said:

‘The words “same offense" means same offense, not the same transaction, not the same acts, not the same circumstances or same situation * * *. It is not enough that some single element of the offense charged may have a single element of some other offense as to which the defendant had theretofore been in jeopardy, but the constitutional provision requires that it shall be the “same offense”. The usual test accepted by the text writers on criminal law and procedure is this: If the defendant upon the first charge could have been convicted of the offense in the second, then he has been in jeopardy.’
In the case of Rocco v. State, 37 Miss. 357, the Court held that, in order to render the defense autrefois convict or acquit effectual, the defendant must not only show the record of his former conviction or acquittal, but he must show by evidence aliunde the identity of the offense of which he was formerly convicted or acquitted with the offense charged in the indictment to which the defense is made. In the case of Price v. State, 104 Miss. 288, 61 So. 314, the Court held that, where a defendant charged with a crime interposes the plea of autrefois acquit— former jeopardy, the burden of proof is upon him to prove he had been acquitted upon the merits of the identical offense he is called upon to answer.
It is generally agreed that ‘A putting in jeopardy for one act is no bar to a prosecution for a separate and distinct act, merely because they are so closely connected in point of time that it is impossible to separate the evidence relating to them on the trial for the one of them first had. Consequently, a plea of former jeopardy will not be sustained where it appears that in one transaction two distinct crimes were committed.” 226 Miss, at 40-41, 79 So.2d at 246-247.

Appellant, in contending that he was convicted of a felony-murder, relies on State, ex rel. Wikberg v. Henderson, 292 So.2d 505 (La.1974). The case involved an attempted armed robbery in which the store owner was shot to death. The State admitted that it prosecuted under the felony-murder provision. After defendant’s conviction of murder, the State later charged him with attempted armed robbery. The Louisiana Supreme Court held that the double jeopardy clause of the Constitution barred a prosecution for attempted armed robbery, but stated:

“It should be made clear that nothing in this opinion is intended to indicate that in no event can an offender who goes on a crime spree and violates numerous statutory provisions be prosecuted for more than one offense without violating the prohibition against double jeopardy. See the examples of valid prosecutions of multiple crimes committed within a narrow time span in the recent cases of State v. Richmond [284 So.2d 317 (La.1973)], supra, and State v. Pettle [286 So.2d 625 (La.1973)], supra. Nor do we mean to imply that one who robs and then kills his victim cannot be prosecuted for both crimes. To do so, however, the state must prosecute the murder indictment solely under the intentional murder, rath er than the felony-murder, paragraph of the La.R.S. 14:30.” (Emphasis supplied) 292 So.2d at 511.

We are of the opinion that the robbery and kidnapping charges did not merge in the murder charge in this case, and there is no merit in this assignment of error. However, we do not hold or imply that where two crimes are connected in a chain of events or occur as part of the res gestae, the crime of capital murder may not be sustained under Mississippi Code Annotated § 97-3 — 19(2)(e) (Supp.1976).

II.

Was appellant denied a speedy trial since he was not sentenced on the armed robbery and kidnapping charges for a period of eight (8) years?

Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), discussed whether a defendant had been deprived of his constitutional right to a speedy trial, and the Court set forth the following factors for that determination: (1) length of time, (2) the reason for the delay, (3) the defendant’s assertion of his right, and (4) prejudice to the defendant. The showing of a mere lapse of time is not enough to establish denial of a speedy trial. Fleming v. United States, 378 F.2d 502 (1967). The delay must not be purposeful or oppressive. Pollard v. United States, 352 U.S. 354, 77 S.Ct. 481, 1 L.Ed.2d 393 (1957).

After plea of guilty, a defendant is in the custody of the court, and he so remains subject to being sentenced at a later term. The court retains full jurisdiction over him and the case. White v. State, 214 Miss. 235, 58 So.2d 510 (1952).

United States v. James, 459 F.2d 443 (5th Cir. 1972), involved the conviction of a defendant in June, 1968, and the imposition of sentence in March, 1971. The Court said:

“There was unreasonable delay based on the District Court’s misunderstanding of the law, but the appellant has suffered no meaningful loss of or injury to his rights. Shortly after the initial sentence was given in 1968, and before the time that any delay in sentencing in the present case could be said to be unreasonable, appellant was sentenced in the United States District Court for the Northern District of Texas to a six year term on a plea of guilty to burglarizing a Texas bank. At the time of his arrest appellant was a fugitive from New Mexico under a 12-year sentence for maiming and from Mississippi under a three-year sentence for armed robbery. These sentences are presently unserved. Also there were charges pending against him in Louisiana. Appellant’s claim that the § 4208(b) commitment, not made final, deprived him of chance for a parole is purely hypothetical in the circumstances of this case. The District Court did not err in refusing to vacate the sentence. Nor was there error in refusing to conduct a plenary hearing with oral testimony, at the time of final sentencing, to allow appellant to present evidence which he claimed would show he had been rehabilitated since the 1968 study was completed. This was a matter in the discretion of the sentencing judge.” 459 F.2d at 444-445.

In Scott v. United States, 434 F.2d 11 (5th Cir. 1970), the Court stated:

“This Court holds that the mere lapse of time that occurred here, without petitioner undergoing any actual imprisonment to which he was sentenced by Judge Clayton, does not constitute service of that sentence, and this sentence remains subject to be executed, notwithstanding the delay in executing it. This is definitely the ruling of the Fifth Circuit Court of Appeals in the case of United States ex rel. Mayer v. Loisel, 25 F.2d 300, with annotation to the same effect in 98 A.L.R.2d 688, which recognizes the general rule that delay in executing sentence of imprisonment does not ordinarily preclude subsequent enforcement of the sentence. That is peculiarly appropriate in those cases where the convicted party had himself been instrumental in causing the delay in execution or where the delay was occasioned by appeal or purported appeal in connection with legal proceedings.” 434 F.2d at 23.

Yates served eight (8) years on death row while exhausting his remedies in the murder conviction. He made no request for sentence in the armed robbery and kidnapping cases as was required by Cummings v. State, 219 So.2d 673 (Miss.1969), and he was not prejudiced by failure of the court to impose sentence. We are of the opinion that this assignment is without merit.

III.

Should appellant have been permitted to change his plea of guilty to not guilty on the charges of armed robbery and kidnapping?

Yates contends that before he was sentenced on the armed robbery and kidnapping charges, he made an oral motion to withdraw his guilty pleas. The record does not support this contention. The judgments on said pleas state “. . . and he had naught to say.” In Shelton v. Kindred, 279 So.2d 642 (Miss.1973), the Court stated:

“The burden • rested upon appellant to see to it that the record contained all data essential to an understanding and presentation of matters relied upon for reversal on appeal. Willenbrock v. Brown, 239 So.2d 922 (Miss.1970).
This Court may not act upon or consider matters which do not appear in the record and must confine itself to what actually does appear in the record. It must be presumed that the rulings of the trial court were correct, and such presumption will prevail, unless the actual record supports the contrary view.” 279 So.2d at 644.

The matter of permitting a defendant to withdraw a guilty plea and to enter a plea of not guilty is within the sound discretion of the trial court, although that discretion should be exercised in favor of innocence and liberty, and, where the motion is timely made, the court should administer the law and hear the motion on its merits, if possible. Lambert v. State, 245 Miss. 227, 147 So.2d 480 (1962).

The motion should be accompanied by an affidavit setting forth that the defendant had a meritorious defense or was innocent of the charge or that he had pleaded guilty under mistake or duress, and where this procedure is not followed (which was not done here), the court cannot be put in error for declining to set aside the guilty plea. Langston v. State, 245 So.2d 579 (Miss.1971).

Yates was represented by competent counsel, and his rights were protected under the law. His pleas of guilty were not mere admissions of guilt, but were tantamount to convictions and were as conclusive as a jury verdict. We are of the opinion that there is no merit in this assignment.

For the reasons stated, this Court affirms the lower court’s denial of the Petition for Writ of Error Coram Nobis.

AFFIRMED.

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

APPENDIX

STATE OF MISSISSIPPI "I In the Circuit Court in f- and for said County GEORGE COUNTY J at the February Term thereof, in the year of our Lord, 19 64

THE GRAND JURORS of the State of Mississippi, taken from the body of the good and lawful men of said County, duly elected, empanelled, sworn and charged, at the Term aforesaid of the Court aforesaid, to inquire in and for the body of the County aforesaid, in the name and by the authority of the State of Mississippi, upon their oaths present: That

Phillip G. Yates

late of the County aforesaid, on the 27th day of January in the year of our Lord, 19 64. in the County and State aforesaid, and within the jurisdiction of this Court, unlawfully, wilfully, feloniously, and of his malice aforethought, did, then and there, kill and murder one Jerry Gordon a human being, against the peace and dignity of the State of Mississippi.

/s/ Donald W. Cumbest District Attorney.


source: Caselaw Access Project

license: Public Domain

text:
    Phillip G. YATES v. STATE of Mississippi.
    No. 49495.
    Supreme Court of Mississippi.
    Feb. 16, 1977.
    Phillip G. Yates, pro se.
    A. F. Summer, Atty. Gen. by Catherine Walker, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, George County; Darwin M. Maples, Judge.

Before INZER, P. J., and SUGG and LEE, JJ.

AFFIRMED in Accordance with Opinion in Cause No. 49,496, decided this date.


author: BROOM, Justice,

text:
    SPEED MECHANICAL, INC., and Maryland Casualty Company v. Wesley H. TAYLOR.
    No. 49136.
    Supreme Court of Mississippi.
    Feb. 16, 1977.

      Daniel, Coker, Horton, Bell & Dukes, Joel W. Howell, III, Jackson, Donald V. Burch, Gulfport, for appellants.
    Albert Dickens, Jr., Jackson, for appellee.
    Before PATTERSON, ROBERTSON and BROOM, JJ.
   BROOM, Justice,

for the Court.

Workmen’s compensation medical benefits were denied employee (Taylor, appellee) by the Administrative Judge on the ground that the two year statute of limitations [Miss.Code Ann. § 71-3-35(1) (1972)] barred the claim. Taylor appealed to the entire Workmen’s Compensation Commission which (by split decision) reversed the Administrative Judge and ordered payment of medical benefits. Then the employer, Speed Mechanical, Inc., and insurance carrier, Maryland Casualty Company (appellants), appealed to the Circuit Court of the First Judicial District of Hinds County, which affirmed the Commission’s ruling in favor of the employee. We reverse.

The dispositive issue is: Does the two year statute of limitations in Mississippi Code Annotated § 71-3-35(1) (1972), bar Taylor’s claim for medical benefits? The pertinent part of § 71-3-35(1) provides:

Regardless of whether notice was received, if no payment of compensation (other than medical treatment or burial expense) is made and no application for benefits filed with the commission within two years from the date of the injury or death, the right to compensation therefor shall be barred.

FACTS: In May 1971, employee (appel-lee, Taylor) a plumber, accidentally fell during the course of his employment with Speed Mechanical, Inc. Taylor’s serious mouth injuries required extensive dental surgery and treatment. He lost no wages or pay on account of his injuries and has filed no claim for such. In August 1971, the carrier paid the sum of $1,225, representing one lump sum dental bill. Thereafter Taylor apparently received further adjustments and attention to his dental situation. He filed no claim for workmen’s compensation benefits until more than two years later, when in November 1973 he filed a claim (at issue here) for additional medical benefits. He argues that under § 71-3-35(1) his failure to file his claim for additional medical benefits for over two years only bars him from “lost time subsidy” compensation, and does not bar additional medical benefits applied for in November 1973. Appellants contend that inasmuch as the employee received no payment of compensation (other than for medical treatment) and made no application for benefits “within two years from the date of injury” the claim is barred as to all benefits.

Compensation is defined by Mississippi Code Annotated § 71 — 3—3(j) (1972), as:

[T]he money allowance payable as provided in this chapter, and includes funeral benefits .

This definition makes no reference to medical payments. However, it is clear from the language “other than medical treatment . . .” in § 71-3-35(1), that the legislature construed medical payments to be within the meaning of “payment of compensation” unless specifically excepted therefrom. Graeber Bros., Inc. v. Taylor, 237 Miss. 691, 115 So.2d 735, sugg. of error overruled 237 Miss. 702, 117 So.2d 469 (1960).

Our rule is that we liberally interpret the workmen’s compensation law in favor of claimants in doubtful cases, but we cannot amend a statute or excuse non-compliance with prerequisite conditions imposed by the legislature. Ingalls Shipbuilding Corp. v. Byrd, 215 Miss. 234, 60 So.2d 645 (1952), held an employee’s claim for medical expenses barred by his failure to seek payment as required by the statute.

Language in Trehern v. Grafe Auto Co., 232 Miss. 854, 100 So.2d 786 (1958), is pertinent:

Section 6998-18 [now § 71-3-35] in paragraph (a) puts a limitation of two years on all claims, but nowhere in the compensation act is there any specific limitation on claims for medical benefits.
However, what we are asked to do on this appeal is to simply hold that a claim for medical benefits under the act is never barred. Viewing the act as a whole we are of the opinion that it was the intention of the legislature to put the same period of limitation on the payment of medical benefits as it has put on the payment of compensation. This is in accord with the decisions in other states. (232 Miss, at 857; 100 So.2d at 787).

See also, Childs v. Mississippi Industries for Blind, 184 So.2d 872 (Miss.1966); Modern Laundry v. Harrell, 246 Miss. 463, 150 So.2d 409 (1963); Thyer Mfg. Co. v. Keys, 235 Miss. 229, 108 So.2d 876 (1959).

By means of the employee’s answer to interrogatory number seven propounded to him by his employer and carrier, the record shows that April 25, 1973, “was the date of the last treatment received by” the employee for which payment was made by either the employer or carrier. Nevertheless, it is without dispute that the employee did not receive as set forth in § 71-3-35(1) within two years from the date of the injury (emphasis added) payment of compensation “other than medical” treatment. Dunn, Mississippi Workmen’s Compensation Law and Practice § 259 (1967), states:

The two year and the one year statute of limitations must be compared and differentiated, since the one is exclusive of the other.
The two year statute applies only where no workmen’s compensation is paid, other than for medical treatment or burial expense. If workmen’s compensation is paid within two years, the two year statute is thereby erased.
While the running of the two year statute is not affected by the payment of medical or funeral benefits, the one year statute for reopening claims is tolled by furnishing or agreeing to furnish such benefits prior to the expiration of the time limit.

Employee Taylor urges that under Miss.Code Ann. § 71-3-53 (1972), payment may be awarded by the Commission since less than one year has passed since the payment of the last medical payments by the insurance company and the filing of this claim. However, his brief quotes only a portion of § 71-3-53, and omits its first three lines which set forth the conditions for such an order by the Commission. § 71-3-53 states:

Upon its own initiative or upon the application of any party in interest on the ground of a change in conditions or because of a mistake in a determination of fact, the commission may, at any time prior to one (1) year after date of the last payment of compensation, whether or not a compensation order has been issued, or at any time prior to one (1) year after the rejection of a claim, review a compensation case, issue a new compensation order which may terminate, continue, reinstate, increase, or decrease such compensation, or award compensation. (Emphasis added).

Here there has not been shown or alleged a change in conditions or mistake in determination of fact upon which to grant a review. Furthermore, there cannot be a “re-view” where there has been no first “view.” Prior to the Commission’s action appealed from, the instant claim had never been before the Commission and obviously the Commission’s award was not a review.

The two year statute is not to be confused with the one year statute. Numerous reported cases deal with one year statute situations, wherein the one year statute [§ 71-3-53] commences running from the date of the last payment of compensation, whether weekly indemnity benefits or medical benefits. In contradistinction, the two year statute [§ 71-3-35(1)] expressly states that it runs from the date of the injury. As pointed out in Graeber Bros., Inc., supra, the two year statute clearly indicates that the legislature considered medical treatment as a payment of compensation; and, in special instances where medical only is paid, the legislature has provided that two years from the date of the injury is a sufficient period of time in which to either file a claim for compensation, or be barred therefrom. The bar of the two year statute cuts off the rights to all compensation (lost time subsidy, medical and funeral expenses) and does not except from its operation anything. To hold otherwise would make a claim for funeral benefits recoverable even though many years pass without filing a claim therefor. An exception to the two year statute is a situation where the injury is latent and not “reasonably apparent” as in Struthers Wells-Gulfport, Inc. v. Bradford, 304 So.2d 645 (Miss.1974). There Mrs. Bradford suffered a spider bite and her resulting disability was not reasonably apparent for more than two years. The instant case presents no such latent or unknown aspect.

Our judgment is that the employee’s claim for the additional medical benefits is barred. The Administrative Judge correctly denied the claim, and the circuit court erroneously affirmed the action of the Commission which ordered payment of benefits.

REVERSED AND RENDERED.

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


author: EMBRY, Justice. BLOODWORTH, Justice JONES, Justice

text:
    Charles WALKER v. The CITY OF BIRMINGHAM, Ala., a Municipal Corp., et al. Sarah M. WALKER v. The CITY OF BIRMINGHAM, Ala., a Municipal Corp., et al.
    SC 1706 and SC 1707.
    Supreme Court of Alabama.
    Dec. 10, 1976.
    Rehearing Denied March 4, 1977.
    W. Eugene Rutledge, Rutledge & Pruett, Birmingham, for appellants.
    J. M. Breckenridge, Birmingham, for ap-pellee.
   EMBRY, Justice.

Here, we decide if, when one purchases an admission ticket to a public municipal zoo, there arises an implied contract that the walkways in the zoo will be maintained in a reasonably safe condition. A contract arises under these circumstances, and therefore we reverse the summary judgments entered in behalf of the City of Birmingham.

Sarah Walker entered Jimmy Morgan Zoo in Birmingham after paying an admission fee at the gate. While walking on a paved walkway within the Zoo she allegedly stepped into a hole, fell, and sustained injuries resulting in alleged “permanent disability” to her back.

Mrs. Walker filed suit against the City of Birmingham (as did her husband for his derivative cause of action). Three counts of her complaint were based upon negligence theories for the City’s failure to properly maintain, inspect and repair the walkway. The fourth alleges the City of Birmingham breached an implied contract that the premises would be maintained in a reasonably safe condition.

The trial court granted defendant’s motion for summary judgments on the basis that maintenance of a public park is a governmental function, thereby rendering the City immune from civil liability in connection with the operation of such park, by virtue of Code, Tit. 62, §§ 660 and 729. The Walkers appeal from the summary judgments. We reverse and remand.

The injury in this case occurred October 1, 1972, almost three years before the decision in Jackson v. City of Florence, 294 Ala. 592, 320 So.2d 68 (1975). Thus, at the time of the alleged tort, municipal immunity existed, and the tort actions are precluded by the prospective application of Jackson. Horton v. Northeast Alabama Regional Medical Center, Inc., Ala., 334 So.2d 885 (1976).

An action based on a contract, implied in fact, can be maintained against the City in this case. Count Four states a claim for breach of an implied contract to provide walkways in suitable condition for use by the plaintiff when she was at the zoo. The breach is stated to consist of allowing a defect in the walkway to exist, as a proximate consequence of which plaintiff fell and was injured. It alleges the implied contract and its breach sufficiently to state a claim for relief. Sims v. Etowah County Board of Education, 337 So.2d 1310 (Ala.1976); Berry v. Druid City Hospital Board, Ala., 333 So.2d 796 (1976); Rule 8(a), ARCP.

There is one further matter for determination. May the City of Birmingham contract with members of the public for the use of its park?

Title 37, § 1, Alabama Code (1940), provides:

“All municipal organizations now existing in the state of Alabama * * * and all towns and cities that may hereafter be incorporated under the provisions of this title * * * shall sue and be sued, contract and be contracted with * * * »

The City of Birmingham may be sued as to those matters within its corporate powers. The express language of Tit. 37, § 1, empowers the cities of Alabama to make contracts. It is clear, then, that the City of Birmingham may be sued on its contracts, express or implied.

It is also within the scope of the City’s corporate powers to establish, provide and maintain parks and park areas, and to charge reasonable fees for access, use or enjoyment of those parks. This power is expressly granted the City of Birmingham in Tit. 62, § 721, Alabama Code.

As we stated in Sims v. Etowah County Board of Education, supra, the purchase of a ticket to a place of public amusement creates a contract between purchaser and proprietor. The City of Birmingham has statutory authority to contract with members of the public regarding the maintenance of its public park walkways in a reasonably safe condition; it may be sued for breach of duties, implied in fact, arising from that contract.

REVERSED AND REMANDED.

BEATTY, J., concurs.

HEFLIN, C. J., and BLOODWORTH, MADDOX, FAULKNER, JONES, ALMON and SHORES, JJ., concur specially.

BLOODWORTH, Justice

(concurring specially).

I concur in the judgment of the majority reversing the summary judgments granted the defendant City of Birmingham but for different reasons than those expressed by the majority.

In fact, I must respectfully disagree with my brother Mr. Justice Embry, writing for the majority, in his conclusion that the city “may be sued for breach of its duties, implied in fact, arising from that contract” between it and Mrs. Walker who had purchased a ticket to Jimmy Morgan Zoo. He cites Sims v. Etowah County Board of Education, [1976] Ala., 337 So.2d 1310. I joined in Mr. Justice Faulkner’s dissent in that case as did Mr. Justice Maddox.

However, I think the tort counts are good and therefore I concur in the present judgment of reversal as to those counts. I do not think the statutes provide governmental immunity from tort to the City of Birmingham in suits by persons injured on sidewalks maintained by the city in public parks.

Tit. 37, § 502, Code of Alabama 1940 and City of Bessemer v. Whaley, 187 Ala. 525, 65 So. 542 (1914), specifically provide for municipal tort liability for injuries suffered due to defects in sidewalks, inter alia, cf. Jones v. City of Birmingham, 284 Ala. 276, 224 So.2d 632 (1969). Although citing this rule of law, Jones refuses to hold that “[a] public way in a park is still a public way.” It expressly holds that a public sidewalk entirely within a public park is not an “ordinary public sidewalk” and therefore falls within the governmental immunity granted the city in the operation of a public park. I would overrule Jones.

I would hold that the exception in Tit. 62, § 660, Code of Alabama 1940, that governmental immunity does not extend to “injuries arising out of defects in highways ..” applies here. Sidewalks are part of the system of public highways notwithstanding their being totally encompassed by a public park. The intention of the legislature was to except injuries therefrom from the then existing governmental immunity, in my judgment.

MADDOX and FAULKNER, JJ., concur.

JONES, Justice

(concurring specially).

I agree that plaintiffs have a tort action as stated in Mr. Justice Bloodworth’s special concurring opinion and also have a contract action as stated in Mr. Justice Em-bry’s opinion.

HEFLIN, C. J., and ALMON and SHORES, JJ., concur.


author: EMBRY, Justice.

text:
    ALABAMA POWER COMPANY v. Roderick Henry HENDERSON.
    SC 1717.
    Supreme Court of Alabama.
    Dec. 30, 1976.
    Rehearing Denied March 4, 1977.

      Brittin T. Coleman, Warren B. Lightfoot and Hobart A. McWhorter, Jr., Birmingham, for appellant.
    Terrell Wynn and Alex A. Newton, Birmingham, for appellee.
   EMBRY, Justice.

This is a construction site accident case. Plaintiff, Roderick Henderson, was an employee of Custodis Construction Company, a general contractor engaged in the construction of a smoke stack under a contract with Alabama Power Company. The cylindrical stack was being constructed by pouring concrete into metal forms which formed an inner and outer ring around the stack. Henderson was standing at the base of the stack when one of the forms bent and freshly poured concrete fell onto him. He suffered a 60% permanent disability to his left shoulder and a broken leg which healed with minimal impairment; three and one-half years loss of work and numerous surgical procedures to correct the damage to his shoulder. The jury awarded plaintiff $500,-000. Defendant Power Company appeals, alleging numerous errors for reversal. We find no reversible error, therefore affirm.

I

Alabama Power Company contends the evidence was insufficient to sustain a jury finding that it breached a duty owed plaintiff, as a proximate consequence of which he was injured. It admits responsibility for the kind of ingredients used in mixing the concrete and the quantity of each. It maintained employees at the concrete mixing plant to continuously check the mixture for suitability for use on this particular job; also maintained an employee at the construction site who supervised the pouring of the concrete at all times, and periodically checked the concrete for rate of hardening. The concrete mixture on the day of the accident contained plastiment, which makes the concrete more workable; it also increases the amount of time required for setting or hardening. Henderson’s evidence tended to show that, due to the increase in the amount of plastiment in the mixture, the first one to two feet of concrete poured failed to set properly, and, when another three feet were poured, the hydrostatic pressure created by the soft concrete caused the form to buckle and the concrete to pour out. APC maintains that the forms, owned by Custodis, used to hold the concrete in place were faulty; that it, APC, had no duty to know the forms were not designed to hold a full load of wet concrete, or that it was necessary for the concrete to harden at any particular rate.

The evidence tended to show APC had great authority, control and supervision over the construction of the stack; evidenced by its contract with Custodis and by maintaining, through its employees, close supervision over the mixing and pouring of the concrete. The ultimate test of defendant’s duty to use due care is the foreseeability of the harm which would result if due care was not exercised. Under the evidence APC was chargeable with knowledge: of the suitability of the forms for holding concrete; that the addition of plastiment retarded the rate of hardening of concrete, and failure of the concrete to harden properly would allow hydrostatic pressure to build and result in failure of the forms. The evidence was sufficient to authorize the jury to find APC owed a duty to Henderson which it breached and his injuries resulted.

II

Defendant challenges admission of opinion testimony of an allegedly unqualified lay witness. The witness, Harold Hatfield, an ironworker and construction worker since 1954, had been employed by Custodis since 1967. His testimony was offered by deposition. Objections to portions of the deposition were heard by the court out of the hearing of the jury. The following testimony was admitted over APC’s objection: that the failure of the concrete to set up properly was responsible for the failure of the forms; it was his opinion that the forms bent because there was too much pressure; that the concrete had been poured for two and one-half hours and should have set up by then. APC objected to the admission of such testimony on the ground that the witness was not qualified as an expert on concrete or forms used in pouring concrete. It is notable that both sides presented testimony from other witnesses qualified as experts in the field of concrete and concrete failure.

The use of workers with long years of experience in certain trades and occupations to testify regarding particular elements or circumstances of their work is not unique. If the trial court exercises its authority to qualify the witness with reasonable care, its decision will not be disturbed. Here the trial court was aware of Mr. Hatfield’s qualifications as a construction worker, and took care to allow only so much of his testimony to go to the jury as was deemed proper.

The competency of a particular witness to testify as an expert is discretionary with the trial court, its decision will not be disturbed unless palpably erroneous. We find no error regarding admission of the testimony of Hatfield. Hagler v. Gilliland, 292 Ala. 262, 292 So.2d 647 (1974).

Ill

Improper conduct of a juror during the trial. During the course of the trial a man in the audience spoke to one of the jurors. He also spoke to Mr. and Mrs. Henderson. The court held an en camera hearing and took the testimony of a spectator who witnessed these “conversations.” According to this testimony, as the juror rose from the jury box along with the other jurors, she asked the man in the audience, “You are not working today?” He replied, “No, we had a breakdown.” The spectator testified this was the only conversation he heard the juror have with this man. In Hatcher v. Camp, 279 Ala. 475, 187 So.2d 232 (1966), this court upheld denial of a motion for new trial on grounds of juror interference under similar circumstances stating that “casual and ordinary civilities” exchanged between a party and a juror do not constitute reversible error, if the court clearly ascertains that it had no effect on the mind of the juror. The ruling of the trial court who heard the testimony in this case is presumed correct and we find no abuse of discretion on which to predicate reversal.

IY

Failure to exclude an allegedly intoxicated juror. On the morning the jury was to begin deliberation, it was brought to the court’s attention that one of the jurors was suspected of having the aroma of alcohol on his breath. The court held a hearing in chambers and asked the juror numerous questions. The juror stated he had not been drinking that morning; that he had drunk some alcoholic beverages the night before, but not after 11:30 p. m.; that he felt he could continue with the jury’s deliberation. APC’s motion to strike the juror was overruled.

The fact that a juror drank intoxicating beverages during a trial or deliberation of a verdict is not grounds for a new trial unless the beverages were consumed in such quantities or at such time to incapacitate the juror from performing his duties, or unless it would be reasonable to conclude that the drinking may have influenced the verdict. Alabama Lumber Co. v. Cross, 152 Ala. 562, 44 So. 563 (1907).

Again, this is a matter within the discretion of the trial court; due weight and consideration will be given the ruling of the trial judge who investigated the matter and had an opportunity to observe the juror. Diamond v. State, 219 Ala. 674, 123 So. 55 (1929). The record here shows a full investigation by the trial judge and we will not overturn his ruling in the absence of palpable error or abuse of discretion.

V

Denial of APC’s challenge for cause of a venire member. During voir dire, the venire was asked whether anyone would have difficulty voting for a verdict in favor of APC. One member stated that he was mad one month when he got a $72 power bill, but that he could be fair. On further examination by the trial court, he stated that this would not keep him from being fair. The trial court declined to excuse the venire member.

The test to be applied is probable prejudice. Probable prejudice for any reason disqualifies a prospective juror. Qualification of a juror is a matter within the discretion of the trial court and, on appeal, this court will look to the questions propounded and the answers given by the prospective juror to see if this discretion was properly exercised. The trial judge here properly satisfied himself that there was no cause to disqualify the venire member for probable prejudice. We will not reverse on this point, absent abuse of discretion. Mutual Building & Loan Association v. Watson, 226 Ala. 526, 147 So. 817 (1933); Grandquest v. Williams, 273 Ala. 140, 135 So.2d 391 (1961).

VI

Prejudicial remarks in closing argument. Plaintiff’s counsel stated, in his closing remarks:

“* * * You be the billing department, and for once you send you [sic] bill to the Power Company and make them pay for this human being that they have virtually destroyed. * * *
“* * * I ask * * * that you send the Power Company a bill for $600,-000.00 * * * ”

APC made no objection at the time the remarks were made; no motion to exclude, and no motion for mistrial.

Without due objection by counsel or a motion to exclude and a ruling by the trial court, improper argument of counsel is not ground for new trial nor the subject of review on appeal. An exception is where it can be shown that counsel’s remarks were so grossly improper and highly prejudicial as to be beyond corrective action by the trial court. The remarks in this case do not fall within that category of statements so grossly improper or highly prejudicial as to place it within the exception to the general rule. Since there was no timely objection by counsel, there is no error for this court to review. Johnson v. State, 272 Ala. 633, 133 So.2d 53 (1961); Anderson v. State, 209 Ala. 36, 95 So. 171 (1922); Prescott v. Martin, Ala., 331 So.2d 240 (1976).

VII

Excessive award by the jury. APC maintains the verdict, of $500,000 in this case, is excessive. At the outset let us say, after careful review of the incidents of trial, it does not appear the verdict resulted from passion, prejudice, partiality or corruption on the part of the jury. The inquiry, then, must be: did the jury, in fixing the verdict, have sufficient basis in the evidence that the amount did not exceed the bounds of its discretion?

The evidence would authorize the jury to conclude that Henderson was, when injured, 33 years of age, weighed 220 pounds, and in good health; free of illness or disability. He was married, father of a young daughter, with whom he played and wrestled on the floor; was a fisherman, played baseball and was physically active at work and play. His occupational training was solely as an ironworker, and the job he was performing when injured and at which he was earning in excess of $15,000 a year, with an increase reasonably expected.

When two tons of wet concrete fell 120 feet onto a scaffold, collapsing it, the scaffold and concrete fell upon Henderson. He suffered a comminuted fracture of the fibula and tibia (both bones of the lower right leg), with bone piercing the skin and exposed to the air. The area of his left shoulder and upper arm suffered a brachial plexus injury; a tearing or shredding of the principal nerves supplying the shoulder area, paralyzing those nerves. Over the ensuing two year period he was hospitalized on three separate occasions, at one of which a .surgical procedural was performed that is described as a trapezius transfer; one of the neck muscles is transferred to the shoulder so it may perform some of the functions normally performed by the muscles atop the shoulder.

• Throughout the period of his hospitalization and treatment he was variously confined to bed, required to use a wheel chair, his arm in a sling, wore a leg brace and a body cast. When he last saw his doctor he had achieved maximum improvement but was left with a 60% permanent impairment of his left shoulder. He has a minor limp, leg cramps and continuous pain in his injured arm which, he says, he can do nothing with other than raise it up; his wife describes the arm as limp at his side. The jury saw the atrophied arm, smaller than his right one. He can no longer play on the floor with his daughter; no longer fishes or plays baseball. Although he is enrolled in a vocational rehabilitation program to train as an automobile mechanic, there is no evidence that he will be employable as such.

Special damages of loss of earnings were $52,000. That is only one factor to be considered by the jury in awarding damages for personal injuries; more important factors often exist, as they do in this case. The loss of earning capacity, disability of the person affected by the injuries, pain, and the mental, as well as physical, suffering which is the consequence of physical injury, physical impairment, and the new and different course one’s future life must take, reasonably expected to continue in the future for 35 years or more, are some of those factors. The jury could reasonably conclude from the evidence that Henderson faced an uncertain and problematic work future, during which he would never be free of pain nor, during which, could he avail himself of those pleasures of life formerly enjoyed; part and parcel of that which makes life worthwhile, not merely bearable.

For a thorough discussion of the distinction between loss of earnings and loss of earning capacity, as well as other factors to be considered by the jury in awarding damages in personal injury cases, see Beloit Corporation v. Harrell, Ala., 339 So.2d 992 (1976), and cases cited therein. Mindful of our limited authority to disturb a jury verdict and aware that the trial court’s denial of a motion for new trial on the ground of excessive award creates a presumption in favor of that verdict, we are not convinced the jury abused its discretion in this case in fixing the amount of the award. Alabama Electric Co-operative, Inc. v. Partridge, 283 Ala. 251, 215 So.2d 580 (1968).

AFFIRMED.

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


author: MADDOX, Justice.

text:
    Howard MURPHREE v. Lloyd A. SWANN and Dorothy Swann.
    SC 1926.
    Supreme Court of Alabama.
    Dec. 30, 1976.
    Rehearing Denied Feb. 25, 1977.
    Thomas E. Snoddy, Double Springs, for appellant.
    Walter Joe James, Jr. of James & Lowe, Haleyville, for appellee.
   MADDOX, Justice.

This case involves a boundary line dispute and the question of adverse possession between coterminous landowners. Appellees (plaintiffs below), Lloyd and Dorothy Swann, brought this action, pursuant to Tit. 47, § 2, Code of Alabama 1940 (Recomp. 1958), against appellant, Howard Murphree, to determine the boundary line between their properties. The disputed strip of land is approximately 100 feet in width between a government survey forty line and an old wire fence line. Appellee claims that the old fence line is the true boundary line. Appellant contends the true line is the government survey line, which is the line between the parties as set forth in their respective deeds.

The trial court, after hearing the evidence ore tenus, concluded that the boundary line was located at the old fence line. From this final judgment of the trial court, appellant brings this appeal. After a careful review of the evidence, we reverse and remand with directions.

Swann’s title is based upon a deed dated September 25, 1970 to land described as follows:

“All that part of land bounded by Smith Reservoir and lying above the 510 foot contour line above mean sea level being (being) a parcel of land containing one acre more or less in S.W. Corner of NE Vi of SW Vi and 7 acres more or less lying East of East Sipsey Fork River in NE Vi of SW Vi all in Section 35 Township 11 Range 6 West.”

Murphree’s title is based upon a deed which conveyed the SE Vi of NW Vi Section 35, Township 11, South of Range 6, West to him in 1956. The land is located in Winston County near Smith Lake.

Swann claims title to the disputed strip between the government survey line (the North line of the NW Vi of SW Vi of Section 35, and the South line of the SE Vi of NW Vi of Section 35) and the old fence line by virtue of adverse possession.

There is evidence in the record that the fence was erected in “about 1925” by Mur-phree’s father and one Stephenson, owner of the NE Vi of the SW Vi. Murphree, the appellant, was a young boy then but said he remembered helping to put up the fence on “what they thought was the 40 line.” Mur-phree testified that it was the intention of both parties to put the fence on the line.

There was much evidence that the successors in title of the Stephensons used the land up to the old fence. Murphree himself became one of those successors in title when he bought the NE Vi of the SE Vi in 1946. He owned it until November 10, 1955, when he conveyed it to one Elam and wife. Elam cut timber on the tract and conveyed to one Leigeber, and wife, on December 19, 1955. Leigeber’s widow conveyed to Helen M. Cornish, as trustee for Leigeber heirs doing business as H.D.J. Land Company on March 10, 1958. Cornish, etc., d/b/a H.D.J. Land Company, conveyed the subject tract to the Swanns on September 25, 1970.

An agent for H.D.J. Land Company testified, without dispute, that the company did not intend to claim title to any land other than that shown by the deed. In this case, that would mean that the H.D.J. Land Company did not intend to claim title to the disputed strip.

Swann finds himself in the predicament the complainant faced in McNeil v. Hadden, 261 Ala. 691, 76 So.2d 160 (1954). Swann has no title to the disputed strip because it is not within the description of his deed from H.D.J. Land Company, and he has not had adverse possession for the required period.

Swann testified that his immediate grantor did not show him where the land lines were located. Swann had a survey made of his north-south line and the 510 contour line for Smith Lake, when he purchased it, but did not have a survey made of his north boundary line (the disputed line which runs east-west) at that time. He did talk to Murphree about the north boundary line and testified that Murphree told him the fence was “a mistake” and that Mur-phree pointed out a surveyor’s stake to him, which Swann testified “was the quarter corner of this section, I guess.” Furthermore, the record affirmatively shows that Swann paid Murphree $750 for an easement and right-of-way for ingress and egress to his tract and that a portion of the easement went across the disputed strip. The instrument granting the easement is dated September 4, 1971.

Some of Swann’s predecessors in title may have been able to claim title to the disputed strip by adverse possession. We need not decide that question. Murphree himself was one of those predecessors in title.

Swann cannot claim title by adverse possession here. In Wilson v. Cooper, 256 Ala. 184, 54 So.2d 286 (1951), this Court held that where a deed described the land conveyed by government survey, the grantee can acquire no title to a disputed area beyond the government line, which his predecessors acquired by adverse possession.

As already pointed out, Swann’s grantor testified that the H.D.J. Land Company made no claim to the disputed strip. Consequently, the proposition of “tacking” adverse possession of an immediate grantor is inapplicable. Cf. Carpenter v. Huffman, 294 Ala. 189, 314 So.2d 65 (1975), where grantee was put into actual possession of disputed land adversely held by his immediate grantor.

The evidence is without dispute that Swann did not acquire title to the disputed strip by adverse possession. He could not “tack” the adverse possession of any predecessor in title.

The findings and conclusions of the trial court are palpably wrong. The judgment is reversed and the cause is remanded with directions to establish the government survey line as the boundary line between these parties.

REVERSED AND REMANDED, WITH DIRECTIONS.

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

      . During the trial of this cause, counsel for the appellant moved the trial court to strike appel-lee, Dorothy Swann, from this action in that she was divorced from the appellee and no longer was a joint owner of the property in question. Accordingly, the trial court, without objection of counsel, severed Dorothy Swann as a party-plaintiff from these proceedings.


author: BLOODWORTH, Justice.

text:
    The CINCINNATI INSURANCE COMPANY, a corporation v. The CITY OF TALLADEGA, Alabama, a Municipal Corporation, and Hare Construction Company, a corporation.
    CER-7.
    Supreme Court of Alabama.
    Jan. 7, 1977.
    Rehearing Denied March 4, 1977.

      James E. Clark, Birmingham, for Cincinnati Insurance Co., a Corporation.
    William G. Somerville, Jr., Birmingham, and Phillip T. Shanks, Decatur, for the City of Talladega and Hare Construction Co.
   BLOODWORTH, Justice.

Plaintiff, Cincinnati Insurance Company, began this litigation by filing suit in the United States District Court for the Northern District of Alabama seeking to have surety bonds issued in its name declared invalid and unenforceable. Judgment was entered against plaintiff, and plaintiff appealed to the United States Court of Appeals for the Fifth Circuit.

The Court of Appeals encountered uncertainty in the Alabama law applicable to the case and certified to this Court certain questions of law pursuant to Article 6, § 140(b)(3), Constitution of Alabama of 1901, as amended in 1973, viz.:

“1. Are the surety bonds void because of failure to comply with the statute of frauds, Tit. 20, § 3, Code of Ala.?
“2. If the surety bonds are not void, are they enforceable against CIC?
“3. If the bonds are valid and enforceable is Talladega entitled to an award of attorney fees with respect to either or both bonds?”
We answer these questions thusly:
1. No.
2. Yes.
3. Yes and No.

The following is the statement of the case given by the Court of Appeals:

In January 1968 the Cincinnati Insurance Company [CIC], an Ohio corporation, appointed John R. Lucas to be an agent for it in Alabama. As required by statute (Code of Ala., Title 28, §§ 66, 85(20)-(38), and 86), Lucas obtained a license from the state Superintendent of Insurance authorizing him to act as agent for CIC in Alabama. This license was issued pursuant to applications submitted by both Lucas and CIC’s vice-president. It authorized Lucas to represent CIC in the writing of several classes of insurance, including fidelity and surety. The applications and license set forth no limitations on the powers of Lucas to represent CIC in the writing of insurance in the named classes.
For the purposes of the writing of fidelity and surety bonds, Lucas received from CIC a “bond kit” which consisted of a number of gummed gold corporate seals of CIC and a supply of undated power of attorney forms presigned by CIC’s vice-president. These power of attorney forms stated that Lucas was appointed CIC’s attorney-in-fact to execute for CIC “any and all bonds, policies, undertakings, or other like instruments . . . up to $150,000.00”.
CIC and Lucas also executed a written agency agreement, dated January 25, 1968, which recited that “the company [CIC] hereby grants authority to Agent [Lucas] to receive and accept proposals for such contracts of insurance covering risks of property and casualty insurance located in the State of Alabama as the Company has authority lawfully to make, subject, however, to restrictions placed upon such Agent by the laws of the state or states in which such Agent is authorized to write insurance business,” and that the “Agent has full power and authority to receive and accept proposals for insurance covering such classes of risks as the Company may, from time to time, authorize to be issued.” The terms and provisions of the Agency Agreement were not shown to have been made known to defendants.
In October 1966 the City of Talladega engaged Philip Kessler to perform architectural services in connection with proposed construction of a public building, and to perform for the work “customary, ample and sufficient services pursuant to the construction thereof, including supervision and contract control.”
The Talladega City Commission received bids for the project and Edwin W. Hare, doing business as Hare Construction Company, was the low bidder with a bid of $487,709. To meet the requirements of Title 50, § 16, Hare was required to supply a performance bond in the amount of $487,709, and a labor and material bond in the amount of $243,-854.50. Hare contacted Lucas for the writing of the bonds, and in turn Lucas contacted CIC requesting authority to execute the bonds in CIC’s behalf as surety. CIC explicitly refused to grant Lucas this authority, but no officers or employees of the City of Talladega had knowledge of such refusal.
On April 16, 1968, Kessler delivered to the City Commission the contract documents for construction of the building by Hare. Included were the performance bond and payment bond, each dated April 2, 1968, and each executed on behalf of CIC with the signature of Lucas. Each bore a gold certificate seal of CIC. Attached to each was a photo-copied power of attorney certificate purporting to authorize Lucas to enter into surety bond obligations on behalf of CIC up to a maximum amount of $750,000. The power of attorney forms were dated and initialed by Lucas.
CIC at no time issued power of attorney forms to Lucas which authorized him to enter into surety bonds for an amount greater than $150,000. The officers and employees of the City of Talladega had no knowledge or notice of this limitation.
The parties are in dispute as to whether the City of Talladega, by and through its officers and employees, or Kessler, its Architect, had any knowledge as to whether or not Lucas was an agent of CIC, duly licensed as such by the State of Alabama, and had any knowledge as to whether Lucas had executed the Agency Agreement with CIC dated January 25, 1968, aforementioned. Kessler did ascertain CIC was licensed to do business in Alabama but made no inquiry as to whom its agents were.
After receiving an invoice from Lucas Insurance Agency for the performance and payment bonds, Hare delivered to that agency a premium payment in the form of a check dated April 19, 1968, in the amount of $9,754.18, which was deposited by Lucas in the bank account of the Lucas Insurance Agency. The invoice was signed by Lucas and marked paid on “4/23/68”. These funds received by Lucas were never forwarded to CIC or returned to Hare or the City of Tallade-ga.
On April 16, 1968, the City Commission accepted the bonds and work commenced on the building April 26, 1968.
On June 18, 1968, the state representative of CIC discovered that bonds naming CIC as surety were being used in the Talladega project. At that time, approximately 10% of the construction had been completed. On June 26, 1968, CIC filed a declaratory judgment action in federal district court seeking to have the bonds declared invalid and unenforceable.
In April 1969 Hare defaulted in performance of the construction contract. The city arranged for construction to be completed by other means at an expense of $103,995.56 in excess of the monies left for performance of Hare’s contract when default occurred.
On September 15, 1969, the complaint was amended to add as parties defendant all unpaid materialmen and subcontractors of the prime contractor, Hare. In addition to counterclaims against CIC, each of the materialmen and subcontractors filed crossclaims against Talladega for recovery from the city, in the event the bonds were declared invalid and unenforceable, for failure to obtain a bond for the protection of materialmen as required by Title 50, § 16, Code of Ala. When CIC declined to defend these cross-claims under the payment bond, Tallade-ga was required to assume their defense. Talladega’s motions to dismiss the cross-claims were overruled in April 1970, and answers were filed by Talladega. The crossclaims then lay dormant pending trial of the preliminary issue of whether the bonds were valid and enforceable.
At trial in May, 1971, the District Court submitted to a jury special verdicts pursuant to Rule 49(a) of the Federal Rules of Civil Procedure. Using the special verdicts of the jury, the District Court entered interlocutory findings of fact and conclusions of law.
The District Court found the surety bonds valid and enforceable against CIC. To the sum of $103,995.56 the Court added $24,243.41 as interest due Talladega on its claim. In addition thereto, the Court found laborers and materialmen to be due the sum of $59,093.97 on their unpaid bills, plus interest and attorneys fees thereon totalling $34,798.56. The Court has also awarded $40,000.00 in attorneys fees to Talladega for its costs of litigation.

1. “Are the surety bonds void because of failure to comply with the statute of frauds, Tit. 20, § 3, Code of Ala.?”

The pertinent part of Tit. 20, § 3, provides:

“In the following cases, every agreement is void, unless such agreement, or some note or memorandum thereof, expressing the consideration, is in writing, and subscribed by the party to be charged therewith, or some other person by him thereunto lawfully authorized in writing
******
“Every special promise to answer for the debt, default, or miscarriage of another.”
******

[Emphasis supplied.]

The statute of frauds has been held applicable to contractors’ bonds. American Casualty Co. of Reading, Pa., v. Devine, 275 Ala. 628, 157 So.2d 661 (1963). Here, the problem is whether the requirement of the statute of frauds that such agreements be “. . . subscribed by the party to be charged therewith, or some other person by him thereunto lawfully authorized in writing . . . ” has been complied with. [Emphasis supplied.]

Our answer to the first question is “no”— the bonds are not void for failure to comply with the statute of frauds. The license application, .which is described in the Court of Appeals’ statement of the case, is a writing subscribed by CIC, the party to be charged, evidencing Lucas’ authority to write fidelity and surety insurance on its behalf.

We reach no conclusion regarding the sufficiency of the agency agreement to satisfy the statute of frauds. That question is mooted by our conclusion concerning the license application. Although we note that the agency agreement seems to be limited by its opening clause to authorizing Lucas to write “property and casualty insurance,” a later clause appears to grant broader authority. Whether the latter clause should be construed as being subject to the limitations of the opening clause, we need not decide.

The facts in this case are somewhat-similar to those in Paris v. Johnson, 155 Ala. 403, 46 So. 642 (1908). In Paris, an agent had been authorized in letters from the lessor to lease certain business property in the City of Birmingham subject to the requirement that security for the rents be given by the lessee. The agent executed a lease for a term of four years, but did not take security for the rents at the time the lease was executed. In a suit for breach of the lease, the lessor defended his actions on the ground that the agent had exceeded the written authority given him and the lease was thus void under the statute of frauds. This Court held that the written authority to lease the property satisfied the statute of frauds and noted that the agent’s failure to abide by the written limitation on his authority did not involve the statute of frauds.

We would reach the same conclusion in this case. Lucas’ alleged violation of the alleged limitation on his authority does not involve the statute of frauds. He had written authorization to issue surety bonds on CIC by the express terms of the license application.

Under the statute of frauds, whether the obligee on the bonds had knowledge of the writing which authorized the agent to bind the obligor is immaterial. See White v. Breen, 106 Ala. 159, 172, 19 So. 59 (1894); Jenkins v. Harrison, 66 Ala. 345, 359 (1880). The statute of frauds requires only that the authorization be in writing.

Furthermore, it is not required by the statute of frauds that the written authorization specify that a particular act is authorized. Regarding the form of an agent’s written authorization to enter into contracts falling within the statute of frauds, this Court has said,

“. . . No form or method of execution of the power of attorney is prescribed. It may be in any form clearly showing the agent’s authority, and be executed according to any recognized common law method of executing written instruments. The power may be general, to sell any lands of the principal, to any purchaser, upon any terms; or it may be partly general and partly special or limited, as to sell particular land, to any purchaser, on any terms, or particular land to any purchaser on particular terms; or it may be entirely special, as to sell particular land, to a particular purchaser, on particular terms. In either case, the agent, keeping within the scope of his authority, may make the contract and execute the necessary written evidence binding his principal to its performance.”

White v. Breen, 106 Ala. at 169, 19 So. at 61.

The power of the agent in White was derived from a series of letters between the principal and the agent, not from a formally executed document. The license application in the instant case satisfies the requirements concerning execution and form.

2. “If the surety bonds are not void [for failure to comply with the statute of frauds], are they enforceable against CIGT

We consider this to be the pivotal question in this case: Did Lucas’ have actual or apparent authority to issue the bonds and thereby to obligate CIC?

Our answer is “yes” — that Lucas as a licensed agent had actual authority to issue the bonds and to obligate CIC. Lucas was licensed as an agent of CIC pursuant to Tit. 28, §§ 85(20)-85(38), Code of Alabama of 1940 (Recomplied 1958).

An examination of Tit. 28, §§ 85(20)-85(38) indicates to us that it was the intention of the legislature to provide that the issuance of a license to act as an agent for an insurance company is to be predicated upon the actual authority granted the agent by the company and consequently that the agent actually possess the authority indicated on the license.

Section 85(21) distinguishes between insurance agents, solicitors, brokers, managing agents, and service representatives. An insurance agent is defined to be

“. . . a natural person who acts as, holds himself as, or claims to act as a representative of any insurer to accept risks, countersign and issue policies of insurance.” § 85(21)(a).

In subsection (b), an insurance solicitor is distinguished from an insurance agent by the former’s lack of “. . . authority to accept risks, countersign and issue policies of insurance. . . .”

Section 85(24)(d) provides:
“No applicant for license as an insurance agent shall be examined therefor until an insurer intending to appoint the applicant as such agent shall first deliver to the superintendent, on forms which shall be furnished, to such insurer by the superintendent on request, a statement of such insurer showing such information as may reasonably be required by the superintendent, including, but not limited to: The class or classes of insurance it intends to authorize the applicant to write or solicit; the investigation it has made of applicant’s qualification, character and fitness for the duties to be assumed, and the results of such investigation.” [Emphasis supplied.]

Issuance of a license is by the terms of this subsection predicated upon the authority which the agent will be granted by the insurer.

In § 85(22)(el), the legislature spoke to the problem of an insurance agent whose agency with a particular company has been terminated but who continues to service customers who had purchased policies with that company through his agency. That section provides that such an agent may continue, under certain circumstances, to countersign all certificates or endorsements necessary to continue the coverage of those policies. However, it is required that he obtain a “limited license” which clearly shows its limited nature. Before a limited license can be obtained, such agents must

“. . . forthwith surrender their licenses to act for the insurers as to which their authority has been terminated

Thus, because “insurance agent” is defined in terms ¡of the authority possessed, because issuance of a license is predicated upon the insurer’s grant of authority, because the legislature provided for a limited license in the one case in which it permitted the agent to have limited authority only, and because it is required that the license be surrendered when the authority is terminated, we must conclude that the legislature intended that the issuance of a license indicate that the agent has unlimited actual authority from the insurer to represent it in the forms of insurance business for which the agent is licensed. Thus, an agent licensed pursuant to this statute is a general agent as to those types of insurance which he is authorized to issue.

Our interpretation of Tit. 28, §§ 85(20)-85(38), is supported by the interpretation given by the Supreme Court of Texas to a similar provision in the Texas’ insurance code. Shaller v. Commercial Standard Insurance Co., 158 Tex. 143, 309 S.W.2d 59 (1958). Cf. New York Fire Insurance Co. v. Reed, 138 S.W.2d 138 (Tex.Civ.App.1940).

In Blakely v. American Employers’ Insurance Co., 424 F.2d 728, 732 (5th Cir. 1970), Judge Morgan quoted the pertinent provision of the Texas insurance code:

“ ‘Sec. 2. Definitions; Certain Orders, Societies or Associations Not Affected.-— By the term “Local Recording Agent” is meant a person * * * engaged in soliciting and writing insurance, being authorized by an insurance company * * to solicit business and to write, sign, execute, and deliver policies of insurance, and to bind companies on insurance risks, and who maintain an office and a record of such business and the transactions which are involved, who collect premiums on such business and otherwise perform the customary duties of a local recording agent representing an insurance carrier in its relation with the public; * * * ’ [Texas Insurance Code, Vernon’s Annot. Civil Stats., Art. 21.14].”

Regarding the application of this statute to the facts in Shaller, supra, the Supreme Court of Texas stated:

“. . . It is undisputed that Howard Williams was licensed by the State of Texas and duly appointed by respondent as its local recording agent. As such, his authority and the extent thereof was controlled by the provisions of the insurance code and his designation as the type of agent prescribed therein. The purpose of the statute was to vest local recording agents with authority co-extensive with that of the company insofar as writing insurance is concerned and to remove all questions of the local agent’s actual or apparent authority from the field of cavil or dispute. It.follows that subsequent instructions given by the company to recording agents although taking the form of apparent restrictions upon the agent’s authority can be classified only as directives to the agent rather than exceptions or modifications of the agent’s authority which is essentially statutory in nature.”

309 S.W.2d at 63. See also South Falls Corp. v. Kalkstein, 349 F.2d 378 (5th Cir. 1965), in which the same reasoning was applied with regard to the agent of a bonding company.

In enacting this and similar-legislation (providing for the licensing of insurance agents), the legislature has recognized that the responsibility for an insurance agent’s transgression of those limitations placed upon him by his principal (but not known to others) should be borne by the principal, which, after all, has certified to the Superintendent of Insurance that the agent has been investigated and found to be of good moral character and business standing and is thus responsible for the agent’s appointment to a position of trust. Clearly, the legislature did not intend that the burden fall upon members of the public who have no effective means of ascertaining the existence of unknown limitations on the authority of dishonest agents.

CIC argues that a holding that it is liable on the bonds would have a devastating effect on the bonding business in Alabama. A similar contention was rejected by this Court in British General Insurance Co., Ltd. v. Simpson Sales Co., Inc., 265. Ala. 683, 93 So.2d 763 (1957), in which this Court stated:

“Appellant says that to approve the rule as here laid down ‘would lead to most astounding results’; that an agent might even insure property located in China or Ceylon and the company would have no effective control over him. We are not impressed by these arguments. In the first place it is too well-settled to require more than a passing nod that if an agent fails to perform his agreement, whether by exceeding, violating, or neglecting his instructions, he will ordinarily be liable to the principal for the loss sustained thereby, unless the violation has been waived or the wrongful act ratified. . . . The company has the power to determine the conditions of the agency. It may protect itself as it sees fit by requiring surety bond. It may terminate its contract at the first sign of infidelity. It has within its power the determination of what persons shall represent it. In short, it has all the advantages of selection and must bear the burdens thereof if it has failed to choose one faithful to the agency agreement. On the other hand, we have the public, dealing with the agent of the company. In the public view, the agent is the company. . . .” [Emphasis supplied.]

265 Ala. at 688, 93 So.2d at 767.

The policy behind this statute and our interpretation of it is consistent with what this Court has previously held regarding the effect of . a licensing statute. In Sun Insurance Office of London v. Mitchell, 186 Ala. 420, 65 So. 143 (1914), this Court held that a certificate of the secretary of state showing that Myers was a duly appointed agent of Sun Insurance prima facie established the general agency of Myers for Sun Insurance. This Court went on to say that, although the company could limit the agent’s general authority and the limitation would be binding between principal and agent and upon all third persons with notice of the limitation, it would not be binding upon third persons who dealt with the agent without notice of it. In the present case, there is no evidence whatsoever that Talladega had notice of the limitation which CIC attempted to place upon Lucas’ authority.

CIC argues that Sun has no application to this case because the question there concerned the authority of an agent to issue fire insurance, not surety bonds. A similar argument was made in Parsons v. Federal Realty Corp., 105 Fla. 105, 143 So. 912, 88 A.L.R. 275 (1931). There, the Florida Supreme Court held that the maxim that “sureties are favored in the law” has no application to sureties for hire. Further, the court found that there was no sound reason for not treating a surety company the same as an insurance company with regard to the authority of agents. We agree.

Moreover, Parsons cited Sun for a proposition identical with our holding in the case at bar:

“And where a state license has been applied for by a surety company, naming a particular person as its agent, with no restrictions on the agency stated in the application, a power of attorney restricting the authority of agent is ineffectual against one dealing with the agent without notice or knowledge of the restrictions.”

143 So. at 916.

Finally, we think it relevant to note, in passing, that CIC’s actual liability under each bond is, in all probability, less than $150,000, the amount of Lucas’ admitted authority. On the labor and materials bond, CIC’s liability, including attorneys’ fees, was found to be $93,892.53. On the performance bond, its liability, excluding attorneys’ fees, was found to be $128,238.97. The attorneys’ fees awarded were $40,-000.00 and caused the liability to exceed $150,000. That award of attorneys’ fees may, however, be reduced as a result of our answer to the third question. Here, CIC is attempting to avoid liability even for the amount of bonds which it admits Lucas had written authorization to write.

3. “If the bonds are valid and enforceable is Talladega entitled to an award of attorney fees with respect to either or both bonds ?”

CIC concedes that Tit. 50, § 16, Code of Alabama of 1940 (Recompiled 1958), mandates awarding attorneys’ fees to claimants under a labor and materials bond. Consequently, the only question presented is whether Talladega, as the obligee on a performance bond executed pursuant to Tit. 50, § 16, is likewise entitled to an award of attorneys’ fees incurred in enforcing the bond.

The general rule is that, in the absence of statute, contract, or recognized equitable grounds, there is no right to recover attorneys’ fees from an opposing party, either as costs or as damages. Hartford Accident & Indemnity Co. v. Cosby, 277 Ala. 596, 173 So.2d 585 (1965); Mason v. City of Albertville, 276 Ala. 68, 158 So.2d 924 (1963); Inland Mutual Insurance Co. v. Hightower, 274 Ala. 52, 145 So.2d 422 (1962).

Talladega argues that the provisions in Tit. 50, § 16, regarding attorneys’ fees are ambiguous and may be interpreted to require awarding of attorneys’ fees to the obligee on a performance bond. Our reading of Tit. 50, § 16, does not disclose an ambiguity. From the following portion of § 16, it seems clear to us that the provision for attorneys’ fees applies only to labor and materials bonds:

“Any person, firm or corporation entering into a contract with the state or any county or municipal corporation or subdivision thereof in this state for the repair, construction or prosecution of any public buildings or public work, highways or bridges, shall be required, before commencing such work, to execute a performance bond, with penalty equal to fifty percent of the amount of the contract price, and in addition thereto, another bond with good and sufficient surety, payable to the state, county or municipal corporation or subdivision, letting the contract, in an amount not less than fifty percent of the contract price, with the obligation that such contractor or contractors shall promptly make payments to all persons supplying him or them with labor, materials, feed-stuffs or supplies for or in the prosecution of the work provided for in such contract, and for the payment of reasonable attorneys’ fees, incurred by successful claimants or plaintiffs in suits on said bond; and any person, firm or corporation that has furnished labor, materials, feed-stuffs' or supplies for or in the prosecution or repair of any public building or public work, highways or bridges, and payment for which has not been made, shall be authorized to institute an action upon said bond in his or their name or names and to have their rights and claims adju-dieated in such action and judgment rendered thereon; . .

The remainder of the paragraph quoted above sets forth the procedural requirements for bringing suit on a labor and materials bond. The provision for attorneys’ fees is preceded by and succeeded by language which pertains solely to labor and materials bonds. There is nothing to indicate that the legislature intended that the provision should pertain to anything but labor and materials bonds.

Talladega further contends that the following paragraph of the labor and materials bond entitles it to recover attorneys’ fees incurred in enforcing both bonds:

“The above named Principal and Surety hereby jointly and severally agree with the Owner that every claimant as herein defined, who has not been paid in full before the expiration of a period of ninety (90) days after the date on which the last of such claimant’s work or labor was done or performed, or materials were furnished by such claimant, may sue on this bond for the use of such claimant, prosecute the suit to final judgment for such sum or sums as may be justly due claimant, and have execution thereon. The Owner shall not be liable for the payment of any costs or expenses of any such suit.” [Emphasis supplied.]

The indemnification provision of this paragraph applies only to the type of suits which are the subject of the paragraph, namely, suits by claimants on the labor and materials bond. It does not obligate CIC to indemnify Talladega for the costs it may incur in a suit against CIC to enforce either bond. The provision does, however, obligate CIC to indemnify Talladega for its costs in defending suits brought against it by claimants on the labor and materials bond.

Finally, Talladega contends that CIC’s breach of its promise in the performance bond to remedy the contractor’s default promptly necessitated Talladega’s employment of counsel to enforce the bond and thus entitles Talladega to recover attorneys’ fees as damages resulting from this breach of the bond contract. This argument is not based on any of the well-recognized grounds for recovery of attorneys’ fees stated above. Carried to its logical conclusion, this argument would justify recovery of attorneys’ fees whenever one party to a contract breached it, necessitating the other party’s bringing suit. This is not the law of Alabama.

Our answer to the Court of Appeals’ third question is, therefore, that Talladega is not entitled to recover for attorneys’ fees incurred in enforcing the performance bond against CIC, but is entitled to recover all costs and expenses, including attorneys’ fees incurred in defending suits brought against it by claimants under the labor and materials bond.

QUESTIONS ANSWERED.

MADDOX, FAULKNER, JONES, AL-MON, EMBRY and BEATTY, JJ., concur.

       A jury found, on special verdicts under Rule 49(a) of the Federal Rules of Civil Procedure, that Lucas signed the performance bond and the payment bond.

      . These sections, although applicable in the case at bar, were repealed by Acts 1971, No. 407, p. 1067, § 813, effective January 1, 1972, and were replaced by Tit. 28A, §§ 113-154, the provisions of which with regard to the subject at hand are fundamentally the same.