author: CUTRER, Judge. FORET, Judge,

text:
    Boyce J. TRAHAN et al., Plaintiffs-Appellants, v. Roger P. LARIVEE et al., Defendants-Appellees.
    No. 6810.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 15, 1978.
    Writ Refused Jan. 12, 1979.

      Mike Harson, Lafayette, for plaintiffs-appellants.
    Ronald J. Judice, Lafayette, for defendants-appellees.
    Before GUIDRY, FORET and CUTRER, JJ.
   CUTRER, Judge.

Plaintiffs Boyce J. Trahan and Radio Station KVOL instituted this action seeking a determination of whether certain documents held by the City of Lafayette were public records subject to inspection. Made defendants were Robert P. Larivee, Chief Administrative Officer for the City of Lafayette, and Kenneth F. Bowen, Mayor of Lafayette.

This suit was previously before this court on appeal along with a companion case of City of Lafayette v. Trahan, 359 So.2d 331 (La.App. 3rd Cir. 1978); rehearing denied June 15, 1978. These cases were remanded for the purpose of adding indispensable parties. We ordered that the City Directors of Lafayette be made parties to both suits. Upon remand the directors were joined as parties defendant in this case, Boyce J. Trahan, et al v. Roger P. Larivee, et al, our docket No. 6810. The directors were not joined in the companion suit of City of Lafayette, et al v. Jim Trahan and Radio Station KVOL, Inc., our docket No. 6811.

The directors so joined were John Q. Hyde, David Warren, Glenn M. Weber, Phillip Lank, E. Glynn Abel, Sylvan Richard, George Landry, and Wayne Prejean. It was stipulated that the reports at issue were only those concerning Glenn M. Weber, Phillip Lank, E. Glynn Abel, Sylvan Richard, and Wayne Prejean.

From a trial court judgment in favor of the city and its officials decreeing that the documents were not subject to public inspection, Trahan and Radio Station KVOL appeal. Pursuant to the requirements of LSA-R.S. 44:35, this appeal was given preference status.

THE FACTS

The facts of this case are not in dispute. The City of Lafayette has implemented a policy of employee performance ratings. Since April 1, 1975, substantially all city employees below the director level in the various city departments have been rated from time to time. In the latter half of 1977, a similar performance rating was prepared on all directors of the various city departments. This evaluation was conducted pursuant to the direction of the mayor with the chief administrative officer serving as the rater. On January 6, 1978, Tra-han, who is vice president and general manager of KVOL, gave Larivee, who is custodian of the records, written notice of Tra-han’s and KVOL’s intent to request access to the evaluation reports on the department directors. Larivee refused to deliver the reports to Trahan on January 10, 1978, but advised Trahan that access would be granted provided that Trahan secured written consent from each individual director. All but one of the city directors refused to give Trahan consent to review the reports. La-rivee refused to turn over the documents a second time. From this latter refusal, litigation ensued.

In carrying out the employee performance rating program, the city utilizes a rating manual and evaluation form. Although the actual evaluation reports in question are not in the record, we have access to the rating manual and a copy of the evaluation form used by the rater. The purpose of the performance rating program is stated in the manual as follows:

“II. PURPOSE OF THE PERFORMANCE RATING PROGRAM

“The goal of the Employee Performance Rating System is to permit supervisory personnel to evaluate the performance of employees in the accomplishment of their assigned duties and responsibilities by established standards. Performance ratings are intended for use in connection with the following matters:
“A. Granting permanent status to probationary employees.
“B. Awarding merit raises. (Performance reports in connection with merit raises must clearly reflect above average performance).
“C. Counseling employees regarding work problems.
“D. Providing recognition for superior performance.
“E. Demotions, dismissals, and disciplinary actions.
“F. Determining training needs.
“G. Re-employment decisions.”

The rating manual provides for the procedure to be followed in the rating program. The final report is forwarded to the administrating authority, and from there, the original of the report is sent to the Personnel Department and a duplicate copy is given to the employee.

The form used for the evaluation of employees contains four sections: performance review, comments of rater, comments of reviewer, and employee’s review and comments.

In this case, Larivee served as the rater and the evaluation was carried out in substantial conformity with the principles outlined in the rating manual to the extent that said manual could be adapted to a rating of department heads. The employee performance report form, described previously, was also used in carrying out the evaluation.

The trial judge, in written reasons for judgment, felt that these performance evaluation reports did not fall within the intended coverage of the “public records law” and were not subject to public inspection. The trial judge also was of the opinion that Art. 1 § 5 of the Louisiana Constitution of 1974 contains a built-in exemption to the public records law and that disclosure of the documents in question would seriously infringe on the privacy of the city employees.

The issue before the court is whether performance evaluation reports of the directors of various departments of the City of Lafayette are public records subject to examination under Louisiana’s Public Records Law (LSA-R.S. 44:1 et seq.).

If such reports are found to be public records, the second issue arises as to whether the publication thereof would be an “invasion of privacy” under the prohibition of Louisiana Constitution Article I, § 5, 1974.

DO THESE RECORDS CONSTITUTE “PUBLIC RECORDS”?

The initial question to be resolved is whether these performance evaluation reports fall within the definition of “public records.” LSA-R.S. 44:1 A defines “public records” as:

“All records, writings, accounts, letters and letter books, maps, drawings, memo-randa and papers, and all copies or duplicates thereof, and all photographs or other similar reproductions of the same, having been used, being in use, or prepared for use in the conduct, transaction or performance of any business, transaction, work, duty or function which was conducted, transacted or performed by or under the authority of the Constitution or the laws of this state, or the ordinances or mandates or orders of any municipal or parish government or officer or any board or commission or office established or set up by the Constitution or the laws of this state, or concerning or relating to the receipt or payment of any money received or paid by or under the authority of the Constitution or the laws of this State are public records, subject to the provisions of this Chapter except as hereinafter provided.”

The act also lists certain exemptions. We note, however, that personnel evaluation reports are not among the records which are exempt.

The Louisiana Public Records Law was obviously intended to implement the inherent right of the public to be reasonably informed as to the manner, basis, and reasons upon which governmental affairs are conducted. Laws providing for the examination of public records must be liberally interpreted to extend rather than restrict access to public records. Bartels v. Roussel, 303 So.2d 833 (La.App. 1st Cir. 1974), writ denied 307 So.2d 372 (1975).

The reports in question were written documents prepared pursuant to the orders of the chief elected official of the City of Lafayette and were to be utilized to evaluate job performance of the various department heads in the city administration. We find that these reports fall within the broad definition of “public records” as set forth by the legislature.

RIGHT OF PRIVACY

Having concluded that performance evaluation reports are encompassed within the broad definition of the “public records law,” we must determine if publication or disclosure should be denied as being an invasion of privacy of the employee under the provisions of La.Const. art. I § 5, 1974, which provides in pertinent part:

“Every person shall be secure in his person, property, communications, houses, papers, and effects against unreasonable searches, seizures, or invasions of privacy.’’ [Emphasis added.]

The “invasion of privacy” has been recognized in this state beginning 167 years ago. Denis v. Laclerc, 1 Mart., O.S. 297 (1811). Tooley v. Canal Motors, Inc., 296 So.2d 453 (La.App. 4th Cir. 1974) defined the right of privacy as follows:

“ ‘It has been defined as “the right to be let alone” and as “the right to live one’s life in seclusion without being •subjected to unwarranted and undesired publicity.” ’
******
“As appears from the cited cases and as discussed at length in the Comment at 28 La.Law Rev. (April 1968) malicious intent on the part of the defendant is not a necessary element in the prosecution of an invasion of privacy claim. If the defendant’s conduct is unreasonable and seriously interferes with plaintiff’s privacy the invasion is actionable.”

With this background in mind, we next turn to the jurisprudence which may assist us in determining the issue herein. Finding no Louisiana cases on this issue, we turn to the federal cases for their treatment of the subject.

The Freedom of Information Act (FOIA) enacted by Congress provides that federal agencies shall make certain information and records available to the public. Personnel files are exempt under the FOIA if such disclosure “would constitute a clearly unwarranted invasion of personal privacy.”

In the case of Vaughn v. Rosen, 383 F.Supp. 1049 (D.C., D.C.1974) one of the issues presented to the court was whether the disclosure of Civil Service Commission records, which contained evaluations of agency officials who were referred to by name and title, was an unwarranted invasion of the officials’ privacy. The court, holding that such evaluations of these agency officials were exempt from disclosure as being unwarranted invasions of privacy, held as follows:

“Release of the desired information would clearly constitute an invasion of personal privacy. Identification of evaluated employees could expose them to practical disabilities, such as loss of future employment or friends, and perhaps acute embarrassment. While the mere loss of anonymity may be considered only a minor invasion of privacy, to disclose an individual’s name together with an evaluation and criticism of his job performance is certainly a serious invasion which would better be kept secret.”

The above portion of the Vaughn decision was not appealed. There were other issues involved which were appealed and affirmed. Vaughn v. Rosen, 173 U.S.App.D.C. 187, 523 F.2d 1136 (1975).

For other cases, where personnel records of named employees were likewise held to be exempt as being an invasion of privacy, see Metropolitan Life Insurance Company v. Usery, consolidated with National Organization for Women v. Social Security Administration, 426 F.Supp. 150 (D.C., D.C. 1976) and Campbell v. United States Civil Service Commission, 539 F.2d 58 (10th Cir. 1976).

With these principles in mind we examine the performance evaluation report forms and the rating manual to determine whether disclosure may be an invasion of the privacy of the employees affected.

These forms result in detailed comments of the rater as to the employee’s personal attitude and attributes on 25 different factors. Each factor is rated on a point system ranging from 1 to 9 points, depending on whether he is rated as Unsatisfactory, Improvement needed, Satisfactory, Above Average, or Outstanding. The manual contains guidelines for the rater to use in making the performance evaluations on each factor. For instance, under the factor of “Job Attitude” the manual contains the following guidelines in this regard:

“8. JOB ATTITUDE:

POINTS APPLICABLE DESCRIPTION
1_Lack of job interest, resentful and uncooperative. Constantly complains and stirs up trouble.
3_Displays reluctancy in following rules or orders. Does not show interest in bettering job knowledge or bettering job performance.
5_Usually cooperative and usually displays good attitude in following rules and orders. Displays some interest in learning more about job and in bettering work performance.
7_Willingly and enthusiastically cooperates with others, and in following rules and orders. Willingly tries to learn more about job and improve work performance.
9_Usually excellent attitude and enthusiastic in cooperation with others, and in following rules and procedures. Goes out of way to learn more about job and to excel in job performance. Tries to help others in their job performance.”

By giving the employee a certain point rating in each factor, the rater is expressing an opinion as to that employee’s aptitude as to that factor. The opinion of the rater may be based upon hearsay, fact, or any other reason he may want to use for giving an employee a certain rating.

We point out this process in some detail to show that the evaluation report is very personal and directly affects the employee. To publish or disclose such personal opinions may embarrass or humiliate the employee among his fellow employees, friends or family. It may affect his future employment. Humiliation or embarrassment could flow even though the rating would be “outstanding” as this rating may create envy or jealousy in other employees. Metropolitan v. Usery, supra.

We conclude and do hold that to publish or disclose such reports would be an “invasion of privacy” and is prohibited by the provisions of Art. I, § 5 of the La.Const. of 1974.

We came to this conclusion fully cognizant of the public’s constitutional “right to know” as accorded by Art. 12, § 3 of the La.Const. of 1974, which provides as follows:

“Section 3. No person shall be denied the right to observe the deliberations of public bodies and examine public documents, except in cases established by law.”

The two constitutional provisions under consideration enunciate doctrines which involve the decision of which interest shall prevail, the protection of an individual’s private affairs from unnecessary public scrutiny, or the preservation of the public’s right to governmental information.

The purpose of performance rating reports in this case is to provide employees’ superiors the information with which to evaluate the performance of such employees. By virtue of such evaluation, the administrating authority is better able to make a determination of whether to grant an employee permanent status, whether to award merit raises, provide counseling, recognize superior or inferior performance, and other matters which pertain to good management. It can be said that these reports serve as a management tool in the administration of efficient government. To accomplish this, the administrator needs an evaluation which is as accurate as possible. He needs one which is objective and candid. Confidentiality of these evaluations is vital. If the person making the evaluations knew that they may be disclosed to the public, his evaluation may easily be less than accurate, objective or candid. The public interest in efficient government is better served by keeping these evaluations confidential. Having so concluded, we hold that the individual rights of the employees herein shall prevail over the public’s “right to know.”

For these reasons, the judgment of the trial court is hereby affirmed. Appellants to pay costs of this appeal.

AFFIRMED.

FORET, J., concurs and assigns written reasons.

FORET, Judge,

concurring.

I concur in the result reached by the majority in this case. However, I am of the opinion that the trial court was correct in its conclusion that these personnel evaluation reports were not public records within the intendment of LSA-R.S. 44:1 A. In my mind, these personnel evaluation reports are of prime importance to department heads and other chief executive officers. To require their disclosure to the general public, including the news media, serves no useful purpose, and could very well result in the elimination of personnel evaluation reports altogether.

The legislature, in R.S. Section 44:1 B et seq exempts a myriad of other documents. I believe that it was a mere oversight of the legislature to not also exempt personnel evaluation reports.

For the reasons stated above, I do not believe that we need to reach the issue of invasion of privacy.

I respectfully concur in the result.

      . Pending appeal the companion case of City of Lafayette, et al v. Jim Trahan and Radio Station KVOL, Inc., our docket No. 6811, was dismissed upon joint motion of the parties. It was stipulated, however, that costs in No. 6811 were to be assessed by this court according to cost assessment in No. 6810.

      . See note 2 on page 297.

      . Section 44:1 B exempts, under certain conditions, electric logs that are produced from oil and gas wells and are filed with the Commissioner of Conservation. Section 44:2 exempts certain records involved in legislative investigations. Various records held by prosecutive, investigative and law enforcement agencies are exempted under Section 44:3. Tax returns and records relating to old age assistance, aid to the blind, aid to dependent children, and liquidation proceedings are a few of the exemptions found in Section 44:4. Records of the governor, except those pertaining to money or financial transactions, are exempt under Section 44:5. Certain hospital records are made exempt by the provisions of Section 44:7. In Section 44:9, affidavits relating to expungement of certain arrest records are not subject to public inspection. Finally, all documents filed with, and evidence in proceedings before the Judiciary Commission, are deemed confidential under Section 44:10.


source: Caselaw Access Project

author: LEE, Justice, for the Court:

license: Public Domain

text:
    Gary McGEE v. STATE of Mississippi.
    No. 50806.
    Supreme Court of Mississippi.
    Dec. 13, 1978.
    James J. Fougerousse, Jackson, for appellant.

      A. F. Summer, Atty. Gen. by Pete J. Cajoleas, and Billy L. Gore, Sp. Asst. Attys. Gen., Jackson, for appellee.
    Before ROBERTSON, LEE and COFER, JJ.
   LEE, Justice, for the Court:

Gary McGee was tried and convicted in the Circuit Court of the First Judicial District, Hinds County, of aggravated assault on Milton Wilkinson with an automobile and was sentenced to five (5) years. He appeals the conviction and sentence to this Court.

On January 1,1977, appellant, while driving a Toyota automobile on the streets of Jackson, was involved in a collision with one Eric Nash. He became angered at Nash and pursued Nash’s automobile along the streets, finally driving in front of, and blocking, the same. Appellant got out of his vehicle, accosted Nash and began cursing and beating him. Nash was sixteen (16) years of age and was accompanied by his girl friend, Peggy Waddell. Appellant was seventeen (17) years of age and was accompanied by his girl friend, Donna Martin. Peggy Waddell became frightened and began sounding the horn on Nash’s vehicle. Fred Norris and Milton Wilkinson, who resided nearby, came to the scene, and Wilkinson pulled appellant off Nash. Mrs. Wilkinson called the police, then went to the scene and made the statement that the police were on their way. Appellant got in his car and started to leave. Wilkinson attempted to detain him. The door on the driver’s side of appellant’s car was open, appellant started off hurriedly, making a 90° right turn, and Wilkinson was struck either by the door or the rear of the car. He fell a distance of approximately ten (10) feet into the edge of a yard.

All witnesses testified that Wilkinson was not struck by the front of the Toyota. Wilkinson testified that he did not know what struck him, but that it must have been either the door or the rear of the vehicle. He did not appear to be seriously injured, however, he later developed a back ailment. Appellant was indicted under Mississippi Code Annotated Section 97-3-7 (1972) which provides:

“(2) A person is guilty of aggravated assault if he (a) attempts to cause serious bodily injury to another, or causes such injury purposely, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life;

I.

Did the trial court err in permitting the State to introduce evidence and expand on events taking place between appellant and third parties that were not relevant to the crime charged against appellant?

The trial court admitted over objection evidence about the collision and the altercation between appellant and Nash. Appellant contends that such evidence referred to separate and distinct crimes and constituted reversible error. However, such action on the part of appellant was intimately connected with and related to the crime charged and was relevant to establish the motive of appellant. Carr v. State, 175 Miss. 102, 166 So. 363 (1936). Also, the conduct of appellant and Nash constituted a part of the res gestae. There is no merit to this contention.

II.

Did the trial court err in allowing the State to conduct an in-court demonstration as to events that took place prior to the crime charged against appellant?

The witness Donna Martin (for the defendant) was asked on cross-examination to demonstrate the position of the McGee arid Nash cars, which she did over objection. Such testimony was not violative of Harrington v. State, 336 So.2d 721 (Miss.1976) and Council v. Marquis Flying Service, 250 Miss. 269, 165 So.2d 134 (1964).

III.

Did the trial court err in allowing the State to place the appellant’s reputation in issue through rebuttal testimony where the appellant had not offered any evidence as to his reputation during the trial?

The defense witness Donna Martin testified that appellant was not drinking on the occasion of the alleged assault. Peggy Waddell, a State’s witness who talked with Donna Martin on the night of the incident, was introduced in rebuttal for the purpose of testifying that, when appellant was beating Nash,' Donna told her appellant was drunk and she could not control him in such condition. This was not evidence of appellant’s reputation, but was for the purpose of impeaching the witness Martin. A proper predicate had been laid for that testimony, no objection was interposed, and the trial court committed no error in admitting it in evidence. Martín v. State, 354 So.2d 1114 (Miss.1978).

IV.

Did the trial court err in limiting appellant’s right to a full and effective cross-examination of the complaining witness?

On cross-examination, Wilkinson was asked whether or not he had filed a civil suit against McGee, and he replied in the affirmative. He further stated that his attorney had read to him over the telephone the contents of a declaration, that they were correct, and that the declaration had been filed with his approval. The apparent purpose of the examination was to impeach Wilkinson on his direct testimony. The interrogation should have been permitted under Vinson v. Glenn, 338 So.2d 385 (Miss. 1976). However, no proffer was made of the testimony nor was a statement dictated into the record to indicate what was proposed to be shown by the examination. Under Newell v. State, 209 Miss. 653, 48 So.2d 332 (1950), and other cases following Ne-well, the trial judge is not put in error without such a record, since this Court cannot assume what would have developed from the examination.

V.

Did the trial court err in granting the State’s only instruction?

The only instruction granted to the State was No. 8, as follows:

“The Court instructs the jury that if you believe from the evidence in this case beyond a reasonable doubt that on or about January 1, 1977, the defendant, Gary McGee, while acting purposely, knowingly, or recklessly, caused serious bodily injury to one Milton R. Wilkinson by running into Milton R. Wilkinson with an automobile, under circumstances manifesting extreme indifference to the value of human life, it is your sworn duty to find the defendant guilty as charged, in which case, your verdict, which should be written on a separate piece of paper, should be in the following form: ‘We, the jury, find the defendant guilty as charged.’ ”

The above instruction was not supported by the evidence. Although no specific objection was made to the instruction, we are of the opinion that manifest injustice would result unless we raise the objection here. Miss.Sup.Ct. Rules 6 and 42. The appellant did not move for a directed verdict of not guilty at the conclusion of all the evidence, nor did he ask for a peremptory instruction of not guilty, and, of course, no such assignment of error is before this Court. If such an assignment were presented here, probably, on the record before us, it would be sustained and the appellant discharged. In this status of the record, we are of the opinion that granting Instruction No. 8 was reversible error and that the judgment of the lower court should be reversed and the cause remanded.

In view of our holding on this assignment of error, it is not necessary to discuss the last assignment.

REVERSED AND REMANDED.

PATTERSON, C. J., SMITH and ROBERTSON, P. JJ., and SUGG, WALKER, BROOM, BOWLING and COFER, JJ., concur.


author: SHORES, Justice. TORBERT, Chief Justice, and BLOOD-WORTH and MADDOX, Justices,

text:
    Mildred PLANT, etc. v. R. L. REID, INC., a corp.
    77-575.
    Supreme Court of Alabama.
    Nov. 17, 1978.
    Rehearing Denied Dec. 8, 1978.
    Richard Bounds and John T. Crowder, Jr. of Cunningham, Bounds, Byrd, Yance & Crowder, Mobile, for appellant.
    William H. Hardie, Jr. of Johnstone, Adams, May, Howard & Hill, Mobile, for ap-pellee.
    Bibb Allen of London, Yancey, Clark & Allen, Birmingham, for American Consulting Engineers Council, Consulting Engineers Council of Texas, Consulting Engineers Council of Alabama, Alabama Soc. for Professional Engineers, Nat. Soc. of Professional Engineers, Amicus Curiae.
   SHORES, Justice.

This is the third appeal of this case. In R. L. Reid, Inc. v. Plant, Ala., 350 So.2d 1022 (1977), we reversed and remanded a judgment in favor of the plaintiff because she had failed to show by the evidence that the defendant Reid had breached any duty owing to her decedent. The facts out of which the controversy arises are sufficiently stated in that opinion and need not be restated here. On remand, the trial court granted the defendant’s motion for summary judgment and the plaintiff appealed.

The theory of the plaintiff’s case was and is that Reid was negligent in failing to specify a guard to shield the nip point of the head pulley in plans and specifications for modifying the bulk loading facility at the State Docks. The plaintiff concedes that the contract between the State Docks and Reid did not call for any safety features. She contends, however, that a guard of some kind would commonly have been recommended by engineers on such projects in 1964, that Reid owed a duty to third persons to specify such guards, and was negligent in failing to do so. Although the evidence adduced at trial before the prior appeal established that the State Docks did not follow all of Reid’s specifications, the plaintiff did have evidence by the chief engineer of the State Docks that had the specifications included a guard over the nip point (where Mr. Plant met his death), he knew of no reason why it would not have been installed. If the standards of the profession in 1964 required engineers to include safety features in all plans and specifications and if to meet established safety standards a guard was required, Reid could be found to have breached its duty in not specifying such guards. Whether its failure to do so was the proximate cause of Mr. Plant’s death, even though the State Docks did not adopt all of Reid’s plans, is a fact question.

On the last appeal, we held that the plaintiff’s evidence was deficient in that it consisted only of an opinion by an expert who did not testify that the state of the art in 1964 required that guards be specified by engineers whether engaged to include safety features in plans or otherwise.

In opposition to the defendant’s motion for summary judgment, on remand, plaintiff has now offered the affidavit of another expert, Mr. Homer Thornhill, Jr., which is as follows:

“AFFIDAVIT
“STATE OF TEXAS
COUNTY OF HARRIS
“Before me, the undersigned authority in and for said County and State, personally appeared HOMER THORNHILL, JR., who being first by me duly sworn doth depose and say as follows:
“ ‘My name is Homer Thornhill, Jr., and I have been a licensed registered engineer since 11/7/61 and I am licensed (or registered) engineer in the state of Texas. I have reviewed voluminous material concerning the Defendant, R. L. Reid, Inc.’s Motion for Summary Judgment and it is my opinion that R. L. Reid, Inc.’s conduct in preparing the plans and specifications did not meet with standards of conduct imposed on licensed engineers in Alabama at that time. Even though the plans and specifications did not call for a ‘guard’ at nip hazard, an engineer has a professional responsibility to incorporate safety features in his plans. In my professional opinion, safety was extremely important consideration in the design of machinery and equipment such as the conveyor system involved in this case prior to 1964. At the time of the revisions on the bulk handling equipment, the engineer should have recognized the extremely dangerous nip hazard and in the course of modernization of the equipment it should have been brought up to safety standards applicable in 1964. There were very basic simple guards available and in use throughout 1964 that would have virtually eliminated the hazard complained of in this law suit.
“Sufficient work was performed to accomplish the increase in capacity of the conveyor system that was desired by the State Docks. Even though the original system might have been reinstalled at the time of the accident, this would not have affected the guard that would have been in place had the engineer specified it.’
/s/ Homer Thornhill. Jr.
HOMER THORNHILL, JR.
“Sworn and subscribed to before me this 3rd day of May, 1978.
/s/ Viola Y. Jaudon
Viola Y. Jaudon
NOTARY PUBLIC in and for
Harris County, Texas
My commission expires 11/30/78”

We again reverse and remand.

By affidavit, the plaintiff has offered the statement of an expert, whose opinion may or may not be accepted by the jury, that, in his opinion Reid’s conduct in preparing the plans and specifications did not meet the standards of conduct imposed on licensed engineers in Alabama at the time the plans and specifications were prepared (1964). This testimony supplies infer-enees from which a jury may conclude that Reid had a duty to specify guards, and that its failure to recommend guards in the plans and specifications submitted for modification of the bulk loading facility at the State Docks fell short of the safety standards applicable to and practiced by professional engineers in 1964. It is a jury’s function to determine whether a given hazard was foreseeably great enough to make particular conduct negligent.

True, it remains Reid’s position that guards were not necessary because, first, it did not undertake to make safety recommendations and was not asked to do so; and, second, had the plans and specifications prepared by it been followed by the State Docks, the need for a guard would not have existed. The plaintiff’s position is that an engineer had a professional responsibility to incorporate safety features in all plans and specifications; and this responsibility could not be discharged in 1964 in designing the modifications on the bulk loading facility at the State Docks without specifying guards.

This, in itself, creates an issue of fact, mandating reversal of the trial court’s order granting the defendant’s motion for summary judgment.

Although the plaintiff has the burden of reasonably satisfying a jury from all of the evidence that the defendant owed her decedent a duty and that it breached that duty, proximately causing the death of her decedent, the defendant, as movant for summary judgment, must carry the burden of negating the existence of any issue of fact. Donald v. City National Bank, 295 Ala. 320, 329 So.2d 92 (1976). Reid has failed to carry that burden. Upon a consideration of the motion for summary judgment and the evidence adduced in connection with that motion, we cannot say, as a matter of law, that the defendant owed no duty to the plaintiff’s decedent or that if so, the duty was not breached in the instant case. Neither can we say, as a matter of law, that a duty existed and was breached. Whether such a duty existed and whether it was breached are matters for the jury, based upon the evidence. Hall v. Dexter Gas Co., 277 Ala. 360, 170 So.2d 796 (1964). The plaintiff is entitled to attempt to convince a jury that Reid owed a duty to her decedent, and breached it, proximately resulting in the decedent’s death. Because the evidence produced by the plaintiff’s affidavit, in opposition to the motion for summary judgment, furnished evidence from which the jury may draw an inference in support of her theory of liability, the trial court erroneously granted summary judgment in favor of the defendant.

REVERSED AND REMANDED.

FAULKNER, JONES, EMBRY and BEATTY, JJ., concur.

TORBERT, C. J., and BLOODWORTH and MADDOX, JJ., dissent.

TORBERT, Chief Justice, and BLOOD-WORTH and MADDOX, Justices,

(dissenting).

We must respectfully dissent from the majority opinion which holds that the trial court erroneously granted summary judgment for the defendant because the plaintiff’s affidavit of Homer Thornhill, Jr., in opposition to motion for summary judgment, furnished sufficient evidence from which a jury may draw an inference in support of the plaintiff’s theory of liability.

Although we recognize that the movant for summary judgment in a negligence action has a heavy burden, we believe the defendant sustained its burden here.

As to paragraphs 1 and 2 of the complaint, it is admitted that R. L. Reid, Inc. was consulted and did prepare plans and specifications to speed up the belt at the State Docks.

Paragraph 3 states that “alterations were subsequently made in accordance with such specifications.” (Both sides agree, however, that the alterations were not made as specified; therefore, there was no triable issue in paragraph 3.)

Paragraph 4 states that the plans (which were not followed) “should have required that the conveyor be equipped with features to prevent slippage of the conveyor belt ...”

Paragraph 6 predicates liability on the theory that the conveyor belt was slipping, that the deceased was “putting rosin in between the drive pully or drum and the conveyor belt in order to prevent slippage . ” when he was pulled into the machinery.

It is undisputed that the deceased used a fixed platform, neither designed nor recommended by Reid, in order to get to the place where he could put the rosin between the pulley and the belt.

Paragraph 7 states that the death of plaintiff’s intestate was the “proximate result of the negligence of the Defendants in negligently failing to place a safety guard or shield over the moving portions of the conveyor system” to protect employees.

The plaintiff’s theory of liability is that Reid was negligent in failing to specify a guard to shield the nip point of the head pulley in plans and specifications for modifying the bulk loading facility at the State Docks. Mr. Thornhill stated that the engineer, Reid, should have recognized the extremely dangerous nip hazard and should have, in the course of modernization of the equipment, brought it up to safety standards applicable in 1964. He further stated that there were very basic simple guards available and in use during 1964 that would have virtually eliminated the hazard complained of in this lawsuit.

In short, plaintiff says that Reid was obligated to design a guard rail, that if it had been designed, the State Docks would probably have installed it, and had it been installed, the deceased would not have suffered his injury and death; however, it is undisputed that the Docks did not follow Reid’s plan, and Reid’s affidavit states that had its plans been followed, there would have been no slippage. If there would have been “no slippage,” even plaintiff’s complaint shows there would have been no injury-

Mr. Thornhill’s statement may be sufficient to get past the point of summary judgment and make it an issue of fact as to whether or not Reid failed to meet the standards of the profession existing at the time it performed the services with respect to the need for including a guard to shield the nip point of the head pulley in its plans and specifications. This would meet one of the problems alluded to in Justice Shores’ opinion in the second case, Reid v. Plant, 350 So.2d 1022 (Ala.1977), namely, that the plaintiff’s evidence on the last appeal was deficient in that it did not include an expert’s opinion that the state of the art in 1964 required that guards be specified by engineers whether engaged to include safety features in plans and specifications or otherwise.

Reid’s affidavit and the drawings attached [which we append hereto], without dispute, show not only that Reid’s plans and specifications were not followed but that the machinery at the time of the accident was in the same arrangement as it was when Reid was asked to draw plans to speed up the belt; that the condition as it existed at the time of Mr. Plant’s accident, regarding belt speed, chain guard and chain drive, was the same as existed in 1964.

In essence, the theory of liability of Reid is: Reid, when called upon to design a system to speed up the conveyor belt, should have recommended a guard, which the Docks may or may not have installed.

Thornhill states:

“Even though the original system might have been reinstalled at the time of the accident, this would not have affected the guard that would have been in place had the engineer specified it.”

With all due respect, the emphasized portion of this statement overlooks the fact that our former opinion also concluded that had the plans and specifications recommended by Reid been adopted by the State Docks, “the nip point of the head pulley would not have been accessible to humans and, therefore, a guard would not have been required to meet the standards of the profession as they existed in 1964.”

Can an engineer be held liable for injuries which could not have occurred had his modifications been adopted? The answer is emphatically not! Bayne v. Everham, 197 Mich. 181, 163 N.W. 1002 (1917).

This Court held on the former appeal, at page 1027:

“The plaintiff apparently concedes that Reid would not be liable had its plans and specifications contained a recommendation that the nip point be guarded and the State Docks had failed to follow the recommendation. We can see no difference where it is conceded that Reid recommended that the belt feeder be moved some 1'8" so as to make it inaccessible to workmen, and this recommendation was not followed by the State Docks, [i. e. no proximate cause.]”

The point of all of this is simply that in order to avoid an adverse summary judgment, it seems to us that the plaintiff should have not only submitted evidence to establish the standard of care imposed upon engineers in 1964, but also presented evidence that the specifications and recommendations of the defendant Reid had been complied with and been followed prior to the accident.

If Reid’s affidavits be taken to be true, as they must, and if the State had followed its recommendations, the nip point of the head pulley would have been so located that no person would have had access thereto and, therefore, there would have been no necessity to have a guard installed at that point to shield it. Additionally, Reid’s statement that there would have been no belt slippage if his plans had been followed is uncontra-dicted. Thus, it seems to us, that the defendant met its burden and the summary judgment ought to be affirmed.

Here, we have an engineer who was hired to prepare plans and specifications which admittedly the State failed to follow and which admittedly had it followed, there would have been no need for the plaintiff to put rosin between the belt and the drum, and the point at which the plaintiff’s decedent was caught into the machine and was killed would have been inaccessible to the plaintiff’s decedent and, therefore, his death would not have occurred.

The majority holds that an engineering firm may be held liable for an accident that would not have happened had its plans and specifications been followed. How can Reid’s negligence be the proximate cause of the plaintiff’s decedent’s death?

It is clear from the authorities that in order for an engineer to be liable for alleged negligent design it must first be shown that the work claimed to be defective was constructed in accordance with the plans and specifications he prepared. Wheat Street Two, Inc. v. James C. Wise, Simpson, Aiken & Associates, Inc., 132 Ga. App. 548, 208 S.E.2d 359 (1974); McGuire v. United Brotherhood of Carpenters, 50 Wash.2d 699, 314 P.2d 439 (1957); Dresco Mechanical Contractors, Inc. v. Todd-Cea, Inc. v. J. W. Austin, Jr. and Associates, Inc., 531 F.2d 1292 (5th Cir. 1976).

Even though we are reluctant to approve the grant of summary judgment in a negligence case, we are compelled to state that it was appropriate in this particular case.

[See following illustration.]


author: WRIGHT, Presiding Judge.

text:
    STATE of Alabama, DEPARTMENT OF INDUSTRIAL RELATIONS v. James M. HARBIN.
    Civ. 1539.
    Court of Civil Appeals of Alabama.
    Dec. 6, 1978.
    Frank D. Marsh, Asst. Gen. Counsel, State of Alabama Dept, of Industrial Relations, Legal Division, Montgomery, for appellant.
    No brief for appellee.
   WRIGHT, Presiding Judge.

This is an unemployment compensation case. Appeal is taken by the state from judgment for claimant by the trial court. The issue is whether after layoff from a union job, a union member is “available for work” when he registers with a district union panel and the company panel of his former employer, but refuses non-union employment for which he is qualified.

The undisputed evidence is that claimant was thirty-four years of age and had worked at various “labor” jobs. Most of claimant’s employment had been as a laborer in the construction industry, except for an eighteen-month period in 1974-75 when he worked at a service station. His wages at the service station were $125-$150 for a fifty-hour week with no fringe benefits. In October 1975 he accepted employment with McNally-Pittsburg as a laborer at an hourly wage of $5.25. He was laid off November 12 and received unemployment benefits until he was re-employed by McNally-Pitts-burg in February 1976 as a “bolt-up” man. His wage was $6.25 an hour. He was again laid off on April 22,1976, and began receiving benefits.

Upon his layoff, claimant placed his name upon a district panel of the United Mine Workers union. The panel is a list of unemployed union members. If the union becomes aware of job opportunities, the member who has been out of work longest is given the opportunity for employment. McNally-Pittsburg had a similar list of its laid-off employees. Claimant placed his name on that list.

In May of 1976, claimant’s benefits were terminated because he was offered a job opportunity as a construction laborer with Sparks Construction Co. at $3.50 per hour, but refused it because it didn’t pay enough and was non-union. He remained disqualified until July 31,1976. He was reinstated at that time because he became “available for work” by actively seeking employment regardless of union affiliation and union wages.

The trial court found in its judgment inter alia as follows: When the claimant was laid off by McNally-Pittsburg, he placed himself on the district union panel and company panel of his former employer; he would have been eligible for any jobs which would have come open in the district or at his former employer on a seniority basis; that claimant was ready, willing and able to work from May 19 until July 31, 1976; that he acted in good faith and made a reasonable effort to secure employment of a character which he was qualified to perform by placing himself on the union and company panels; that the Sparks construction job was not suitable based on his overall past experience, training and wages he had received in the past in the construction industry. Claimant was given judgment for benefits in the amount of $990.

We reverse and find the trial court to have erred in applying the law to the facts. The testimony of claimant and the finding by the court that he only placed himself upon union and company panels in an effort to make himself available for work; the further testimony that he refused a job at Sparks Construction because it paid less than union wages and because it would result in his losing union rights, together with the evidence that he was qualified by past experience for the Sparks job as a matter of law fails to qualify claimant for benefits under § 25-4-77(3) Code of Alabama (1975). The evidence of his failure to accept the offer of a job with Sparks also disqualified claimant from benefits under § 25-4-78(5), Code of Alabama (1975).

It is the law of this state that the burden is upon a claimant to not only establish that he is involuntarily unemployed but that he is presently available for work during the time he seeks benefits. In order to carry such burden, claimant must show continuing good faith action and reasonable effort to secure employment of a character which he is qualified by past experience or training to perform. Department of Industrial Relations v. Tomlinson, 251 Ala. 144, 36 So.2d 496 (1948); Department of Industrial Relations v. Mann, 35 Ala.App. 505, 50 So.2d 780 (1950).

Registering with his union and his former employer or even with the state employment office did not in this case constitute a good faith effort by claimant to attach himself to the labor market and make himself available for work. Merely sitting and waiting for a call from these sources, which call was contingent not upon availability of jobs, but upon whether claimant was next in line to be called, is contrary to the legal concept of a reasonable effort to obtain employment. Department of Industrial Relations v. Mann, su pra. To attach to acceptance of a job, even when offered, the further condition that it be union and pay union wages negates any legal conception of availability for work. Permitting a union member to refuse employment because it was non-union and acceptance would violate union rules and yet be eligible for benefits would amount to allowing union rules to determine “availability for work” rather than the provisions of the statute. Such would permit a union member to remain qualified for benefits though refusing a job, when such refusal would disqualify a non-union worker. It is well established by the case law of the various states that one who has refused employment for which he is qualified on the ground that it is “non-union” is disqualified because he is not available for work within the intent of the statute. 56 A.L.R.2d 1010. This court accepts that rule as the correct construction of the Alabama statute.

The judgment below is reversed and judgment is rendered in favor of the State of Alabama, Department of Industrial Relations.

REVERSED AND RENDERED.

BRADLEY and HOLMES, JJ., concur.


text:
    ALABAMA FARM BUREAU MUTUAL CASUALTY INSURANCE COMPANY v. Albert WILLIAMS.
    Civ. 1577.
    Court of Civil Appeals of Alabama.
    Dec. 20, 1978.

      J. Douglas Evans, Florence, for appellant.
    Robert L. Gonce, of O’Bannon & Gonce, Florence, for appellee.
   WRIGHT, Presiding Judge.

This is a suit to enforce medical payment provisions of two automobile liability policies.

Plaintiff Williams’ automobile was struck by the Alexander vehicle. Plaintiff, his wife and two daughters were occupants of his automobile. All were injured and one of the daughters subsequently died from her injuries. Alexander was killed. The medical or funeral expenses of each of plaintiff’s family exceeded $2,000 except those of his wife. Hers were $644.60. Plaintiff had policies of insurance with defendant Alabama Farm Bureau on two different automobiles. Each policy provided medical expense benefits to a limit of $1,000 for each insured.

Alexander had a liability policy of insurance with a $20,000 limit per accident. Plaintiff brought suit against the estate of Alexander to recover for his personal injuries, for medical expenses for himself and each of his family, and for the wrongful death of the deceased daughter. Suits were also brought for the personal injuries of the wife and daughter. Judgments by agreement were entered in each case as follows: Albert Williams-$500; Susan Williams-$10,000; and Carolyn Williams-$9,000.

The policy limits of Alexander were exhausted by these judgments and the payment of $500 to a passenger of Alexander. There were no assets of Alexander other than the policy of insurance.

Plaintiff then brought suit against his insurer claiming medical expense benefits under the provisions of each of his policies for each of his family. Defendant pleaded the limit of one policy and their rights of subrogation under the policy.

Judgment was rendered against defendant in favor of plaintiff in the amount of $6,144.60 plus interest. Defendant appeals.

The first issue is whether the trial court erred in holding that the medical payment benefits provision of the policy issued plaintiff upon another automobile could be “stacked” with the benefits provided in the policy issued on the automobile which he and his family occupied when injured.

This court in the recent case of United Services Automobile Association v. Smith, 57 Ala.App. 506, 329 So.2d 562 (1976), held that whether medical payment benefits of two policies could be “stacked” depended upon the language of the policies. If there is plain and unambiguous language in a policy limiting payment of benefits or excluding payment under certain conditions, there can be no “stacking.”

Therefore, we must look to the language of the policies which are the same except for insuring different automobiles. Under “Coverage C-2 — Medical Expense Benefits” there is inter alia the following:

“Persons Insured
“Division 1. To or for the named insured and each relative so injured while occupying or through being struck by an automobile.
“Exclusions—This policy does not apply under coverage C-2 to bodily injury, sickness or death
“(b) sustained by the named insured or a relative (1) while occupying an automobile owned or furnished for the regular use of either the named insured or any relative, other than an automobile defined herein as an “owned automobile”,
“Definitions:—“Owned automobile” means the motor vehicle or trailer described in the declaration.”

It is easily seen from these quoted portions of the policy that there follows the general terms of the insuring clause a specific exclusion if those insured are injured while occupying an owned automobile other than that declared in the policy. This is a clear and unambiguous exclusion from coverage. It is the kind of exclusion which the insurer has the right to make and which requires enforcement without construction. Mooradian v. Canal Insurance Co., 272 Ala. 373, 130 So.2d 915 (1961); Smith, Supra. This exclusion was held to be unambiguous in Grantham v. United States Fidelity and Guarantee Co., 245 S.C. 144, 139 S.E.2d 744. It was held sufficient to support summary judgment in favor of the defendant by the Nebraska Supreme Court in the case of Bracy v. American Family Mutual Insurance Co., 189 Neb. 631, 204 N.W.2d 174 (1973) and approved by the Kansas Supreme Court in Fieser v. State Farm Mutual Automobile Insurance Co., 210 Kan. 418, 502 P.2d 837 (1972). The trial court erred in entering judgment permitting recovery of medical benefits under the policy of insurance insuring an automobile owned but not occupied by plaintiff and his family when injured.

The second issue requires construction of the subrogation provision of the policy. This court held in the case of Alabama Farm Bureau Mutual Casualty Insurance Co. v. Anderson, 48 Ala.App. 172, 263 So.2d 149 (1972) that policy provisions for subro-gation of the insurer to the right of the insured to recover medical benefits from a tortfeasor after payment under the policy were valid and enforceable in this state. The subrogation provision of the policy in that case is identical to that in this case. As pertinent that provision is as follows:

“Upon payment under coverage . C-2 . . . , the company shall be sub-rogated to the extent of such payment to the proceeds of any settlement or judgment that may result from the exercise of any rights of recovery which the injured person or anyone receiving such payment may have against any person or organization . . . and do whatever else is necessary to secure such rights.”

We will now determine the application of this provision to the stipulated facts of this case.

We have related that the plaintiff-husband and father filed an action against the estate of the tortfeasor in this case for his own injuries and medical expense, the wrongful death of his daughter, the medical expenses and loss of service of his wife and other daughter. It has long been the law that the father and husband has a separate right of action for recovery of the consequential damages to him such as cost of medical expenses due to injury to his wife and minor children. Atlanta Life Insurance Co. v. Stanley, 276 Ala. 642, 165 So.2d 731 (1964); Smith v. Richardson, 277 Ala. 389, 171 So.2d 96 (1965); § 6-5-390 Code of Alabama (1975). It is also the law that the father has the primary right of action for the wrongful death of his minor child. § 6-5-391, Code of Alabama (1975). The wife and the surviving daughter brought separate actions for their personal injuries as they had a right to do.

The defendant had prompt notice of the accident of plaintiff and his family and was informed of their serious injury and that claim would be made for medical benefits under the policy. No request for further cooperation was made by defendant to plaintiff.

It is stipulated that the only assets available for recovery by all the injured was a $20,000 limit insurance policy; that the wife and surviving daughter suffered serious and permanent injury and that their medical costs, except that of the wife, far exceeded $2,000. Defendant did not attempt to show that the judgments entered in the suits of the wife and surviving daughter were less than reasonable in relation to their injuries. The judgment entered for all of the claims of the husband was $500. Plaintiff conceded that amount should be credited against his claim against defendant. The court did grant such credit in its judgment.

The defendant contends that its right of subrogation extends to all sums recovered by plaintiff, the wife and child, until it recoups all sums it is obligated to pay under its coverage for medical benefits. We disagree.

In the first place, there could be no subro-gation against any right of recovery arising from the injury and death of the daughter. That conclusion was reached in the case of Standard Accident Insurance Co. v. Whitset, 270 Ala. 334, 118 So.2d 922 (1960). Therefore, under the stipulation there is due plaintiff $1,000 under the policy for medical and/or funeral expense of his deceased daughter.

Because there was available from the assets of the tort-feasor only $500 for settlement and payment of the plaintiff’s right of recovery for medical expense of himself, wife and surviving daughter, defendant can recoup only that amount from the sums due therefor under the policy. That is no more, from aught that is shown, than defendant could have recovered as subrogee of plaintiff had it first paid plaintiff and then sought recovery from the tort-feasor. Defendant could only be subrogat-ed to the right of recovery for medical expenses. Only the plaintiff had such right of recovery as we have shown. The insurer cannot assert any claim by way of subrogation unless the insured has a claim against the third person to which the insurer can be subrogated. Alabama Farm Bureau Mutual Insurance Service v. Nixon, 268 Ala. 271, 105 So.2d 643 (1958). The wife and child had the right to recover for their personal injury. Defendant could claim no subrogation to that right.

Summing up in light of the evidence and what we have said, there is due plaintiff under the policy as medical pay benefits $1,000 for the deceased daughter, $1,000 for the expenses of the injured daughter, $1,000 for his own medical expenses and $644.60 for medical expenses of his wife for a total of $3,644.60. Crediting the $500 settlement, there remains $3,144.60. The trial court added interest of six percent from November 27, 1976 until May 8, 1978. There was no appeal from that aspect of the judgment. Adding such interest, the correct judgment is $3,144.60 plus $283.02 interest or $3,427.62. We reverse and render judgment in favor of plaintiff for $3,427.62.

REVERSED AND RENDERED.

BRADLEY and HOLMES, JJ., concur.


text:
    Winston J. STEWART v. Daina Sue STEWART.
    Civ. 1578.
    Court of Civil Appeals of Alabama.
    Dec. 20, 1978.

      Sherman B. Powell, Jr., of Powell & Powell, Decatur, for appellant.
    Robert B. French, Jr., Fort Payne, for appellee.
   WRIGHT, Presiding Judge.

The plaintiff-husband appeals from the child support provisions of a divorce decree. He asserts the issue of an abuse of discretion in the entering of an excessive award. We affirm.

The husband brought suit for divorce against his wife of sixteen years alleging incompatibility. The wife countered with cross-complaint on the ground of adultery. The evidence indicated that there were four children aged thirteen to seven years. The husband left the home in 1975 and brought his action for divorce two years later. He admitted to adulterous relationship with several women and was presently living with a woman other than his wife. The wife had five children in a period of six years with four surviving. She had worked as a secretary while having the children. She now has multiple sclerosis and can no longer work as a secretary. However, she works for a private school for a minimum wage which is credited to tuition for her children. She draws $370 per month social security for herself and the children because of her disability. The husband is a diesel mechanic and has earned wages in the past of $375 per week. He is now employed by a nursery taking home only $154 per week.

The wife received all of the real and personal assets of the marriage consisting mainly of a home with an indebtedness and in need of repairs. The husband was ordered to pay to the wife as child support the sum of $360 per month. He contends that such sum is more than half of his net earnings and so excessive as to constitute an abuse of discretion. He points to our case of Travis v. Travis, 345 So.2d 321 (Ala.Civ.App.1977) for support for his contention.

Our decision in Travis is easily distinguishable on its facts from this case. The judgment in Travis was for payment of some $666 per month from an undisputed income of $680. There is no such narrow difference here. Husband’s admitted net income is $154 per week. Until the divorce, he had been contributing $360 per month though he said he had exhausted some savings in doing so. In view of the undisputed needs of the children, the requirement of continuation of such contribution is not so unreasonable as to be a clear abuse of discretion. Perhaps the trial court believed the undisputed testimony of the wife that the husband by training, experience and present opportunity was capable of earning far more than he was at the time of the hearing. His obligation undér the decree to contribute to the support of the family, from whom he chose to separate himself, is considerably less than the contribution of the ill wife.

We therefore find no abuse of discretion and affirm the judgment below.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


author: BOWEN, Judge.

text:
    Juanita Patricia HINES v. STATE.
    6 Div. 169.
    Court of Criminal Appeals of Alabama.
    Aug. 29, 1978.
    Rehearing Denied Oct. 3, 1978.
    J. Massey Relfe, Jr., Birmingham, for appellant.
    William J. Baxley, Atty. Gen. and Samuel J. Clenney, III, Asst. Atty. Gen., for the State, appellee.
   BOWEN, Judge.

The appellant was indicted and convicted for the first degree murder of James Ralph Driver. Sentence was set at life imprisonment.

The appellant cites two instances of alleged error for a reversal of her conviction. The first question is whether three photographs taken at the scene of the crime and depicting the body of the deceased from different angles were properly admitted into evidence. Secondly, it is argued that the mere offer by the state to introduce a tape recording of an alleged statement made by the appellant to an investigating police officer, prior to properly establishing a proper predicate for its admission, so prejudiced the jury as to prevent the appellant from receiving a fair trial.

The state proved a prima facie case of cold blooded murder in the first degree. James Ralph Driver, forty-eight years old, was shot six times in the back of the head and neck area and six times in the back portion of his body. One wound in the back was consistent with a “contact” or “near contact” type wound. The shots were fired from a .22 caliber revolver which held six shots. In order to reload this weapon it was necessary to unscrew a rod from the pistol and manually punch the spent cartridge cases out of the cylinder; then place the new cartridges in the cylinder, close the cylinder, and insert the rod into the pistol and screw it down. The killing occurred in the alley between Avenue C and D between 32nd and 33rd Streets in Ensley, Alabama, on August 20, 1975.

Under the state’s evidence the appellant shot the deceased six times and then left the alley only to return within a short time and shoot him six more times.

The defense was one of self-defense. The twenty-year old appellant testified that she was living with and caring for seventy-eight year old Ira Vance who was crippled. On July 1st, the month before his murder, the deceased began staying at Mr. Vance’s house. The appellant testified that, two weeks before the murder, the deceased and two other men raped her. Because they threatened to kill her if she told, she only reported the rape to her mother and did not go to the police. However, following this rape, both the appellant and the deceased still continued to live at the Vance house though the deceased did not spend every night there. Sometime after he raped her the deceased came into the appellant’s room and placed a knife to her throat. The appellant testified that she saved herself from his advances only by threatening to cry out for Mr. Vance.

After this and one day before the murder the appellant stole a pistol from her mother because the deceased had threatened to kill her. The deceased allegedly told her that a man named George Embry was going to kill her by Wednesday.

On Wednesday night, the appellant saw the deceased in the alley walking in the same direction and ahead of her. She called him and told him that Mr. Vance did not want him in his house any longer. The deceased and the appellant “got to arguing real bad” and the deceased slapped her and said, “Bitch, I’m going to kill you”. The appellant testified that the deceased then turned to pick up something off the ground and at that time she pulled her pistol and started shooting. She fired until the pistol was empty and then seeing that he was still alive, reloaded the weapon and fired six more shots into the back of his body.

I

Photographs are admissible in evidence if they tend to prove or disprove some disputed or material issue, to illustrate or elucidate some other relevant fact or evidence or to corroborate or disprove some other evidence offered or to be offered. Fletcher v. State, 291 Ala. 67, 277 So.2d 882 (1973); Knight v. State, 273 Ala. 480, 142 So.2d 899 (1962); Lewis v. State, 339 So.2d 1035 (Ala.Cr.App.), cert. denied 339 So.2d 1038 (Ala.1976). Photographs depicting the character and location of external wounds on the body of the deceased victim are admissible even if they constitute cumulative evidence based upon an undisputed matter. Ellenburg v. State, 353 So.2d 810 (Ala.Cr.App.1977); Davis v. State, 338 So.2d 507 (Ala.Cr.App.1976).

The pictures objected to were merely three different views of the body of the deceased as he was found in the alley. Though somewhat similar, they are not identical. Each picture was taken at a different angle and at a different distance from the body. Exhibit 3 shows the entire side of the head (and injuries thereto) while Exhibits 4 and 5 do not. Exhibit 4 reveals all the wounds on the body of the deceased and Exhibit 5 is a closer view of a portion of the deceased’s head. The trial judge did not abuse his discretion in allowing these pictures, which had been properly identified, into evidence.

II

The appellant contends that the mere offer into evidence by the state before establishing the proper predicate and chain of custody for a tape recording of a statement made by the appellant was so prejudicial as to require a reversal. This contention is without merit.

The various statements the appellant had made were fully explored and used by the state in impeachment attempts on cross examination of the appellant.

Most importantly, however, defense counsel’s objection to the offer of the tape was sustained. The court ruled in defendant’s favor and no corrective action or instructions were requested. Absent an adverse ruling this court has nothing to review. A defendant cannot complain on appeal of a ruling sustaining his own objection to the admission of evidence offered by the state. Alexander v. State, 37 Ala.App. 533, 71 So.2d 520 (1954); see also McGhee v. State, 41 Ala.App. 669, 149 So.2d 1, affirmed, 274 Ala. 373, 149 So.2d 5 (1962). There was no objection to the mere offer of evidence as being prejudicial presented in the trial court. There was no request to have the jury instructed to disregard any such offer. Simply, there was no adverse ruling or objection made on this point. Objections cannot be raised for the first time on appeal and where no objection is raised in the lower court there is nothing to review. Embry v. State, 283 Ala. 110, 214 So.2d 567 (1968); Nichols v. State, 267 Ala. 217, 100 So.2d 750 (1958); Pugh v. State, 247 Ala. 535, 25 So.2d 417 (1946).

In the absence of objection and adverse ruling by trial court, this court will not review the legal propriety of the question. Calhoun v. State, 343 So.2d 1 (Ala.Cr.App.1977); Smiley v. State, 338 So.2d 491 (Ala.Cr.App.1976); Tillman v. State, 52 Ala.App. 282, 291 So.2d 373 (1974).

We have searched the record on appeal in its entirety and found no error prejudicial to the rights of the defendant. Therefore the judgment of the trial court is affirmed.

AFFIRMED.

All Judges concur.


author: MADDOX, Justice.

text:
    Ex parte Juanita Patricia HINES.
    78-39.
    Supreme Court of Alabama.
    Dec. 22, 1978.
   MADDOX, Justice.

WRIT DENIED.

TORBERT, C. J., and JONES, SHORES and BEATTY, JJ., concur.