text:
    Dennis STEPANEK, Anthony Ray Gurganus, Harold K. Plata, Iris V. Plata, and John M. Wall v. Earl H. ROTH, Jr., William R. Holman, Jr., Jacqueline I. Holman, Gilbert Trosclair, Barbara Trosclair, Myra Roth, W. M. Sproles, M. M. Maddux, Jr., and Bayou Phillips Estates, Inc., a Mississippi Corporation.
    No. 53345.
    Supreme Court of Mississippi.
    Aug. 11, 1982.

      Nicholas M. Haas, Bay St. Louis, for appellants.
    Gex, Gex & Phillips, Walter J. Gex, III, Bay St. Louis, for appellees.
    Before WALKER, BROOM and ROY NOBLE LEE, JJ.
   ROY NOBLE LEE, Justice,

for the Court:

Earl H. Roth, Jr., et al., filed a bill of complaint in the Chancery Court of Hancock County, Honorable John S. Morris, presiding, seeking a mandatory injunction against Dennis Stepanek, et al., requiring them to remove mobile homes or trailers placed on lots in Bayou Phillips Estates Subdivision No. 2. After a trial on the merits, the chancellor directed issuance of the injunction and ordered the defendants to remove the trailers within ninety (90) days, and they have appealed here.

The plat for the Bayou Phillips Estates No. 2 was filed and recorded in the Record of Plats, Chancery Clerk’s Office, Hancock County, Mississippi, on July 13, 1956. The subdivision, consisting of several hundred lots, was originally platted, filed and dedicated by Bayou Phillips Estates, Inc. Thereafter, lots were sold to the public. The plat contained certain restrictive covenants, among which was the following:

(2) Property in this subdivision shall be used only for residential purposes, with the exception of necessary outbuildings used in connection therewith and for public utility facilities on lots reserved for same. All buildings erected thereon shall be of substantial construction (no trailers, tents, hutments, hotels, apartment houses or temporary dwellings) and conform to the high class of development of said subdivision. No dwelling houses shall be erected thereon that shall cost less than Four Thousand Dollars ($4,000.00).

The appellants contend that appellees waived enforcement of the restrictive covenant and are estopped by the doctrine of laches. We agree and reverse the judgment of the lower court.

The appellants acquired lots in the Bayou Phillips Estates Subdivision No. 2 and placed home trailers on them. They improved the properties, some by elevating the trailers several feet above ground, as required by ordinance and the Planning Commission of Hancock County. All the appellants improved their property by work upon the grounds and by connecting with utilities. They had owned and placed trailers on the lots for periods from three (3) years to ten (10) years, with the knowledge of appellees.

In 20 Am.Jur.2d Covenants § 315, at 880-81 (1965), the effect of laches is discussed generally as follows:

The party seeking equitable relief for violation of a restrictive covenant must not be guilty of laches. What acts, or failure to act, upon the part of the complainant will amount to such laches as will bar the right to relief must depend largely upon the facts of the particular case, .... Generally, however, mere delay or lapse of time in bringing suit does not in itself constitute laches. For instance, it has been held that laches was not established where the period between the violation of the restriction and the action to enforce it was as great as 12 years; whereas a lapse of 5 weeks, in connection with other circumstances, has been declared sufficient to bar a plaintiff from injunctive relief.

This Court was confronted with the question of enforcing a restrictive covenant in Twin States Realty Company v. Kilpatrick, 199 Miss. 545, 26 So.2d 356 (1946). Kilpatrick owned three (3) lots and a residence in Beach Hurst, an addition to the City of Pass Christian, Mississippi. There was a restriction on the property providing that it could be used solely for residential purposes and for no commercial purposes of any character. Kilpatrick opened a salesroom in the residence for antiques and gifts, in addition to operating a tea shop. Suit was filed against her, which sought an injunction prohibiting operation of the commercial enterprise. Six (6) years had elapsed from the time she purchased the property until the suit was begun. No other property owners in the addition objected, but Twin States Realty Company began to complain a few months after Kilpatrick acquired the property. In affirming the decree dismissing the bill of complaint, this Court said:

Upon a full hearing the chancellor dismissed the bill, making his written opinion a part of the decree. He based his action upon several different grounds, as we understand it, but we think the decree is so well sustained on the ground of estoppel by laches or acquiescence that none other need be mentioned. It is well settled that “a condition or limitation in a deed restricting or limiting to particular uses the property conveyed may be waived or abandoned by the subsequent conduct of the grantor so that a court of equity will not interfere to prevent its violations,” from which it follows that a complainant seeking equitable relief against the violation of such a restriction must act with reasonable promptitude upon the discovery of the ground for complaint, as otherwise his laches may bar his right to relief.
No better statement of the rule or summary as applicable to restrictive covenants has been made than that by Rugg, J., in Stewart v. Finklestone, 206 Mass. 28, 92 N.E. 37, 39, 28 L.R.A. (N.S.), 634, 646, 138 Am.St.Rep. 370, from which we quote:
“There is no hard and fast rule as to what constitutes laches. If there has been unreasonable delay in asserting claims or if, knowing his rights, a party does not seasonably avail himself of means at hand for their enforcement, but suffers his adversary to incur expense or enter into obligations or otherwise change his position, or in any way by inaction lulls suspicion of his demands to the harm of the other, or if there has been actual or passive acquiescence in the performance of the act complained of, then equity will ordinarily refuse her aid for the establishment of an admitted right, especially if an injunction is asked. It would be contrary to equity and good conscience to enforce such rights when a defendant has been led to suppose by the word [or silence, or conduct] of the plaintiff that there was no objection to his operations. Diligence is an essential prerequisite to equitable relief of this nature. Quiescence will be a bar when good faith requires vigilance. . .. ”
Looking to the stated rules and to the facts as sustained by the evidence, we think it was too late, after waiting more than six years and until appellee had invested her money in the purchase of the property, for appellant to complain, so far as any relief in equity is concerned. Considerably less time than this has been deemed sufficient as a bar in several cases in point, some of which may be found in the reporter’s abstracts of the briefs, and to these we add Bigham v. Winnick, 288 Mich. 620, 286 N.W. 102, and see 2 High on Injunctions, 4th Ed., Sec. 1159. [199 Miss, at 553-554; 26 So.2d at 357-358].

We are of the opinion that the principle stated in Twin States Realty Company applies to the facts of the case sub judice and that the appellees here are estopped from enforcing the restrictive covenant against appellants. We hasten to add and emphasize that this case is decided upon the peculiar facts here and is not a bar and does not apply to other property owners who may be differently situated and affected.

The judgment of the lower court is reversed and judgment is entered here in favor of appellants. In view of this decision, the other questions are not addressed.

REVERSED AND RENDERED.

PATTERSON, C. J., SUGG and WALKER, P. J., and BROOM, BOWLING, HAWKINS, DAN M. LEE and PRATHER, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    FIRST BAPTIST CHURCH OF CITRONELLE, et al. v. CITRONELLE-MOBILE GATHERING, INC. and Sanders MASON, Jr., et al. v. Bart B. CHAMBERLAIN, Jr., et al.
    79-922, 79-923.
    Supreme Court of Alabama.
    Feb. 12, 1982.
    MADDOX, JONES, BEATTY, and ADAMS, JJ., concur.
    TORBERT, C. J., and ALMON, and EM-BRY, JJ., dissent.
   PER CURIAM.

It is ordered that the application for rehearing filed in the above causes on October 13, 1981, be, and the same is hereby, overruled. 409 So.2d 727. No opinion.

FAULKNER and SHORES, JJ., recused.


author: ALMON, Justice.

text:
    Waring Inge HOLT and Ellen Inge Trimble v. The FIRST NATIONAL BANK OF MOBILE, a Corporation, as Executor of the Will of Sloss Whitaker Inge.
    80-326, 80-327.
    Supreme Court of Alabama.
    July 2, 1982.
    Rehearing Denied July 30, 1982.
    W. DeWitt Reams and Patricia K. Olney of Reams, Wood, Vollmer, Phillips, Killion & Brooks, Mobile, for appellants.
    James J. Duffy, Jr., Carroll H. Sullivan, and James J. Duffy, III of Inge, Twitty, Duffy & Prince, Mobile, for appellee.
   ALMON, Justice.

Appellants, Waring Inge Holt (Mrs. Holt) and Ellen Inge Trimble (Mrs. Trimble), who are the daughters of Francis H. Inge (Mr. Inge), deceased, filed complaints in the Circuit Court of Mobile County against the First National Bank of Mobile as executor of the estate of Sloss Whitaker Inge (Mrs. Inge), their deceased stepmother. The complaints, one filed by Mrs. Holt and the other by Mrs. Holt and Mrs. Trimble together, sought damages based on Mrs. Inge’s alleged wrongful interference with Mr. Inge’s intention to devise two parcels of real property to his daughters. The circuit court granted the defendant Bank’s motions to dismiss the complaints for failure to state a claim. The daughters appeal, alleging that thé trial court erred in dismissing the complaints, which attempt to state a cause of action not yet addressed by the appellate courts of this state. We find, however, that the trial court did not err in holding that these complaints do not state a cause of action, and we affirm.

These consolidated cases have been before this Court twice before. Holt v. First National Bank of Mobile, 372 So.2d 3 (Ala. 1979) (Holt I); Holt v. First National Bank of Mobile, 382 So.2d 498 (Ala.1980) (Holt II). In Holt I, the appeals from the dismissals of the original complaints were dismissed as untimely. In Holt II this Court granted mandamus, ordering the trial court to rule on the Bank’s motions to dismiss the amended complaints. The plaintiffs now appeal from the trial court’s adverse rulings on these motions. The question of whether the complaints state a cause of action is now properly before us.

In pertinent part, count one of Mrs. Holt’s complaint reads as follows:

“5. Francis H. Inge and Sloss Whitaker Inge were married in September, 1956, and remained married until the death of said Francis H. Inge on April 9, 1959.
“6. For several months prior to his death Francis Inge had known that he was suffering from cancer in an advanced state.
“7. Before his death in 1959, Francis H. Inge had formed a fixed intention to devise that certain real property located at 352 Cottage Hill Road in Mobile, Alabama, which he was then occupying as his home, to his daughter, Waring Inge Holt, and this intention would have been carried out but for the wrongful acts of Sloss Whitaker Inge, as hereinafter alleged.
“8. The Defendant’s testator, Sloss Whitaker Inge, by false and fraudulent representations and by the exercise of duress and undue influence, intentionally and maliciously prevailed upon the said Francis Inge to leave the property in a trust which was for her benefit, instead of leaving said property to Plaintiff in a Codicil which he made to his Will.
“9. Sloss Whitaker Inge fraudulently induced Francis Inge to refrain from leaving the property to his daughter Waring by a Codicil to his Will, but rather to leave it in his residual estate and promised Francis Inge to convey it to Waring.
“10. Sloss Whitaker Inge was given a full and complete power of appointment of the marital trust property by Article Five of the Last Will and Testament of Francis Inge which allowed her to effectuate such a conveyance if the Cottage Hill Road property were allocated to the marital trust.
“11. Sloss Whitaker Inge fraudulenty persuaded Francis H. Inge to refrain from executing such Codicil in favor of Waring Inge Holt, and further fraudulently represented to Francis H. Inge that she would give the Francis H. Inge home property to Waring, but within twelve months of the death of Francis H. Inge, and without revealing to Waring the said promise made to her father, said house and real property were sold to Dr. Leon McVay.
“12. Plaintiff alleges that Sloss Whitaker Inge exercised duress and undue influence, and intentionally and maliciously prevailed upon the said Francis Inge to devise the property to her and that but for such wrongful acts by her, the Plaintiff, Waring Inge Holt, would have received the property by bequest from Francis H. Inge.
“13. The Plaintiff, Waring Inge Holt, did not discover the fraudulent and deceitful conduct on the part of Sloss Whitaker Inge until May of 1975, after the death of Sloss Whitaker Inge.
“14. The Plaintiff, considering the foregoing premises, demands of the Defendant damages in the amount of One Hundred Twenty-Five Thousand and No/100ths ($125,000.00) Dollars, plus interest and costs.”

The subsequent counts realleged paragraphs one through thirteen and added grounds for relief as follows: count two, for money had and received from the sale of said property; count three, as third-party beneficiary of an oral pre-marital agreement between Mr. and Mrs. Inge; count four, for Mrs. Inge’s misrepresentation of her intention not to convey the said property to Mrs. Holt; and count five, for deceit.

The complaint filed by Mrs. Holt and Mrs. Trimble closely parallels Mrs. Holt’s complaint; the following paragraphs will suffice to show the basis of the claim:

“9. Before his death in 1959, Francis H. Inge expressed an intent to Sloss Whitaker Inge and members of the Inge family to execute a Codicil to his Will by which he would leave certain parcels of property being suitated [sic] within the block in the City of Mobile, Mobile County, Alabama, bounded by Government Street, Claiborne Street, Church Street and Franklin Street, having a front of approximately 125 feet on Claiborne Street and extending in part through to Franklin Street, and known as the Waring property, to his daughters, Waring and Ellen. Francis H. Inge frequently expressed this desire to Sloss Whitaker Inge and members of the Inge family that the parcel of property located in Mobile known as the old Waring property remain in the Inge family.
“11. The Defendant’s testator, Sloss Whitaker Inge, by false and fraudulent representations and by the exercise of duress and undue influence, intentionally and maliciously prevailed upon the said Francis Inge to leave his Will unchanged.
“12. Sloss Whitaker Inge fraudulently persuaded Francis H. Inge and wilfully deceived and induced him by the exercise of duress and undue influence not to leave said property to his said daughters, but instead to leave it in her control and that the old Waring property would be given to Waring Inge Holt and Ellen Inge Trimble by the Will of Sloss Whitaker Inge. Sloss Whitaker Inge did not devise the said Waring property to the Plaintiffs by the Last Will and Testament which she had made prior to her death, and which has been probated, and under which the Defendant is serving.”

This first count sought $100,000 damages; the second count sought the same amount for money had and received from sale of the property.

This Court has not addressed the proposed cause of action for tortious interference with an expectancy in an inheritance or bequest. We find that while courts in several other jurisdictions have recognized that such a right of action exists, the cases in which plaintiffs have been successful on appeal have shown more compelling circumstances than those alleged by these plaintiffs.

For the action to lie, the defendant must have used independently tortious means to interfere with the testator’s intent. Peffer v. Bennett, 523 F.2d 1323 (10th Cir. 1975); Prosser, The Law of Torts, § 130, p. 951 (4th Ed. 1971). The most glaring example of such a wrongful act can be found in Pope v. Garrett, 204 S.W.2d 867 (Tex.Civ.App. 1947). In that case two of the defendants prevented the testatrix from signing her will in the presence of witnesses, by force or by creating a disturbance. The Court of Civil Appeals of Texas affirmed a judgment imposing a constructive trust against these two defendants who physically interfered with the signing of the will.

In most cases, the wrongful conduct alleged is some species of fraud or deceit, as is the case here. Nevertheless, the plaintiffs whose appeals have succeeded have generally presented much stronger cases than these plaintiffs have alleged. Either the alleged bequest to the plaintiff was in writing, as in Harmon v. Harmon, 404 A.2d 1020 (Me.1979), and Frohwein v. Haesemeyer, 264 N.W.2d 792 (Iowa 1978), or written evidence of the fraudulent representation existed, as in White v. Mulvania, 575 S.W.2d 184 (Mo.1978); Kramer v. Freedman, 272 So.2d 195 (Fla.App.1973); Allen v. Leybourne, 190 So.2d 825 (Fla.App.1966); and Mitchell v. Langley, 143 Ga. 827, 85 S.E. 1050 (1915). The plaintiff in Bohannon v. Wachovia Bank and Trust Co., 210 N.C. 679, 188 S.E. 390 (1936), did not allege any such writing, but rather that he did not know whether or not his grandfather had written a will in plaintiff’s favor and that the defendant, had special access to such knowledge. The Supreme Court of North Carolina held that the complaint stated a cause of action and that the plaintiff should be allowed to question the defendant who was alleged to have special knowledge of the facts. We hold that with no writing alleged and with Mrs. Inge, the alleged defrauder, deceased, the plaintiffs herein have not alleged facts which would bring them within the proposed cause of action.

We are aware that several of the courts in recognizing this cause of action have remarked that the difficulty of proving such a case does not go to the existence of a cause of action. But a line must be drawn somewhere; here, the alleged promise would have been made more than fifteen years before the original complaint was filed, the alleged tortfeasor is dead, and no written evidence of either the intent or the fraud is alleged. Beyond mere difficulty of proof, such an action controverts the policy of several well-established principles of law: the formalities required for testamentary dispositions of property, set out in Code 1975, § 43-1-30; the Statute of Frauds, requiring agreements to make wills and to convey interests in real property to be in writing before such agreements are enforceable, § 8-9-2; statutes of limitations, barring prosecution of stale claims; and the Dead Man’s Statute, § 12-21-163, which provides that “no person having a pecuniary interest in the result of the action or proceeding shall be allowed to testify ... as to any transaction with, or statement by, the deceased person whose estate is interested in the result of the action .... ” These policies particularly pose problems here because plaintiffs must prove that Mrs. Inge had no intention of performing the alleged promise at the time she made it. Old Southern Life Insurance Co. v. Woodall, 295 Ala. 235, 326 So.2d 726 (1976); Walker v. Woodall, 288 Ala. 510, 262 So.2d 756 (1972); Birmingham Broadcasting Co. v. Bell, 259 Ala. 656, 68 So.2d 314 (1953); Code 1975, §§ 6-5-101 and 6-5-104(b)(4). With Mrs. Inge dead, the parties would have to engage in a “swearing match” as to her state of mind twenty-three years ago.

Mrs. Holt and Mrs. Trimble strongly urge that the trial court should be reversed, if only because there exists a presumption that a motion to dismiss for failure to state a claim upon which relief can be granted (A.R.C.P., Rule 12(b)(6)) should ordinarily not be granted when a plaintiff has alleged a “novel or extreme” cause of action. Roberts v. Meeks, 397 So.2d 111 (Ala.1981); Lavoie v. Aetna Life and Casualty Co., Inc., 374 So.2d 310 (Ala.1979); 5 Wright & Miller, Federal Practice & Procedure § 1957 (1969). The policy behind this practice is to allow development of facts to show whether plaintiffs’ case fits within the proposed theory of liability. Because the allegations of the complaints herein show so many countervailing policies, and indeed indicate that a plaintiffs’ verdict and judgment would be unsustainable, we decline in this case to follow the above-stated predilection for denying motions to dismiss novel complaints.

Nor do the other counts of plaintiffs’ complaints have any merit. The count in each complaint for money had and received would depend upon the plaintiffs’ having some right or title to the property, which they clearly did not (even if we were to hold that plaintiffs have an arguable tort action, any injury would be to their expectancy in the devise, not to an actual property right — see Prosser, supra). Mrs. Holt’s count alleging that she was a third-party beneficiary to the Ingés’ pre-nuptial agreement is defeated on its face by the Statute of Frauds. Her counts sounding in fraud and deceit are simply restatements of the primary count and are defeated by the same reasoning as in the analysis above.

For the foregoing reasons, the judgment below is affirmed.

AFFIRMED.

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

ADAMS, J., concurs in the result.

      . For appellate decisions favorable to defendants, see, e.g., Cyr v. Cote, 396 A.2d 1013 (Me. 1979); Peffer v. Bennett, 523 F.2d 1323 (10th Cir. 1975); Cunningham v. Edward, 52 Ohio App. 61, 3 N.E.2d 58 (1936) (refusing to recognize a cause of action).

        See also, annot., 11 A.L.R.2d 808 (1950); Restatement (Second) of Torts § 774B (1977).

      . Plaintiffs have alleged that they did not learn of Mrs. Inge’s promise until after her death, which would bring them within the terms of Code 1975, § 6-2-3, which gives one year to bring an action, otherwise barred, after discovery of fraud. This section does require reasonable diligence and good faith and deems fraud to have been discovered when it ought to have been discovered (see annotations to § 6-2-3). Mr. Inge’s daughters have not alleged reasons for their inaction after the reading of his will or the sale of the family house, which occurred within twelve months of his death. At any rate, our point here is simply that the general policy of statutes of limitations would be defeated by trial of this suit.


author: FAULKNER, Justice.

text:
    BEKINS VAN LINES and Leon Daniels v. Roger BEAL.
    81-67.
    Supreme Court of Alabama.
    July 2, 1982.
    Rehearing Denied July 30, 1982.

      Bibb Allen, Birmingham, and Reggie Copeland, Jr., Mobile, for appellants.
    Daniel M. Spitler and I. Harry Lyon, Pel-ham, for appellee.
   FAULKNER, Justice.

This is an action for negligence arising out of a traffic accident which occurred on Interstate 65 in Jefferson County, Alabama, May 2,1978. The plaintiff Roger Beal, and his wife were traveling in a Datsun automobile, when Mr. Beal attempted to pass a moving van owned by the defendant Bekins Van Lines, and driven by the defendant, Leon Daniels. While passing the truck, Mr. Beal’s vehicle struck a guard rail and flipped two or three times. Mr. Beal alleged that the Bekins truck veered into the passing lane, causing Mr. Beal to move his vehicle out of the lane to avoid colliding with the truck. Mr. Beal was traveling at a speed of fifty to fifty-five miles per hour, and the van was moving forty-five to fifty miles per hour. The defendants alleged that Daniels turned on his left blinker to pass a car, and had barely moved across the center line, when he saw Mr. Beal’s approaching vehicle and returned to the right lane.

Mr. Beal brought' an action against the owners of the van, Swanner-Bekin, Inc. and Bekins Van Lines, and against their employee, Leon Daniels. The claim was tried to a jury. The jury returned a verdict in favor of all of the defendants. Mr. Beal made a motion for a new trial, stating as grounds for the motion the following:

“1. The verdict is contrary to the law.
“2. The verdict is contrary to the evidence.
“3. The evidence considered in the most favorable light in behalf of the Defendant is insufficient to support any verdict that might be rendered for the Defendant herein.
“4. The evidence was, as a matter of law, that the injuries sustained by Plaintiff, if any, on May 2, 1978, were the result of wanton conduct on the part of the Defendant. Defendant’s council [sic] even admitted in the closing argument that Defendant did wrong.
“5. Opposing council [sic] addressed jury members individually during the summation constituting prejudice and reversible error.
“6. Noise from the construction immediately outside the Courtroom prevented the jury from hearing part of the testimony and jury instructions so that there was insufficient evidence and/or jury instructions to support a verdict and/or to constitute proper instructions to the jury.
“7. Members of the jury heard the Judge’s instructions in that the burden of proof of Plaintiff was ‘beyond a shadow of a doubt’ which is an improper and prejudicial burden of proof. Note that this is based on the Affidavits of the jurors attached to this Motion and not in the instructions.
“8. One juror was asleep during a large portion of the trial and for this reason Plaintiff was not afforded a trial by 12 qualified jurors but was given a trial by one juror who heard part of the evidence and could, therefore, only contribute to part of the deliberation which could be worse than no contribution at all.
“9. One juror was interested in another trial, as opposed to this trial, to the point that the jury and the Court waited, on more than one occasion, for her to return from the other Courtroom so we could continue. Thus, obviously, that same juror was not properly listening to the evidence or the case and could, perhaps, cause more harm than good in deliberation.
“10. The decision was not a unanimous one as required by law. When the jury was polled, one member did not positively state that this was her verdict.”

The trial judge granted the motion for a new trial. In his order the trial judge, the Honorable John N. Bryan, Jr., stated:

“Having considered all the grounds asserted by the plaintiff in support of their [sic] said Motion, it is the opinion of this Court that no one ground cited standing alone would be of sufficient import to require the granting of a new trial, but the Court is satisfied upon considering all grounds cumulatively that the ends of justice would better be served by granting a new trial.”

Pursuant to Code 1975, § 12-22-241, the defendants appealed the granting of a new trial. We affirm.

On appeal, the parties raise the issue of the proper standard of review for a trial court’s grant or denial of a motion for a new trial. In Hill v. Cherry, 379 So.2d 590 (Ala.1980), this Court stated:

“Granting or refusing a motion for a new trial rests within the sound discretion of the trial court; the exercise of that discretion carries with it a presumption of correctness which will not be disturbed by this court unless some legal right was abused and the record plainly and palpably shows the trial court was in error.”

Accord, Johnson v. Hodge, 291 Ala. 142, 143, 279 So.2d 123 (1973); Phillips v. Phillips, 395 So.2d 1040 (Ala.Civ.App.1981). An appellate court is more reluctant to reverse the granting of a motion for a new trial than the denying of a motion for a new trial. Johnson v. Hodge, 291 Ala. 142, 143, 279 So.2d 123. Furthermore, this Court construes the record against the appellant in reviewing the granting of a new trial. Id.

In Johnson v. Hodge, 291 Ala. 142, 143, 279 So.2d 123, this Court stated that if the trial judge grants a new trial and fails to state the grounds therefor, the appellant court must uphold the granting of a new trial if any ground for a new trial supports the trial judge’s action. In general, the appellate court presumes that the new trial was granted because the verdict was against the weight of the evidence. Clark v. Chitwood, 339 So.2d 1017 (Ala.1976); Hubbard Brothers Construction Co. v. C. F. Halstead Contractor, Inc., 294 Ala. 688, 321 So.2d 169 (1975). Nevertheless, when the judgment negates action upon a particular ground, such as the ground that the verdict is contrary to the evidence, this court will not presume that the action was based on that ground. Bullard v. Williams, 272 Ala. 391, 133 So.2d 688 (1961); Cook v. Sheffield Co., 206 Ala. 625, 91 So. 473 (1921).

In the present case, the trial judge specifically stated that he did not base his order granting a new trial on any particular grounds, including insufficiency of the evidence. The judge stated that “no one ground standing alone would be of sufficient import to require the granting of the new trial.” Thus, this Court may not infer that the trial judge granted the motion for a new trial based on the insufficiency of the evidence. Furthermore, there is no need to examine each ground, since the trial judge expressly stated that none of the grounds, alone, was sufficient.

The real issue presented by the trial judge’s order is whether a trial judge may grant a new trial based on the cumulative effect of alleged errors. We hold that such an order is permissible, and is presumed to be correct unless plainly and palpably wrong. Kerns v. Lenox Machine Co., 74 Ill.App.3d 194, 30 Ill.Dec. 33, 392 N.E.2d 688 (1979). See Hill v. Cherry, 379 So.2d 590 (Ala.1980); Johnson v. Hodge, 291 Ala. 142, 143, 279 So.2d 123 (1973).

A trial judge may weigh the credibility of the evidence and the witnesses, and may grant a new trial if the jury’s verdict is not supported by the evidence or if substantial injustice would occur if a new trial were not granted. See Bazile v. Bisso Marine Co., 606 F.2d 101 (5th Cir. 1979). A trial judge may properly grant a new trial even in a situation in which the granting of a directed verdict or judgment notwithstanding the verdict would be improper. Id.; 5A Moore’s Federal Practice 50.03 (3d ed. 1976). Furthermore, the trial judge may grant a new trial on grounds which might not constitute reversible error on appeal. In sum, a new trial is a less drastic remedy for errors that occur at trial. Thus, as in the present case, there may be a situation in which several events at trial lead to the conclusion that a new trial should be granted to prevent injustice, even though, taken alone, the events may not warrant the granting of a new trial.

In the present case, the evidence presented at trial was in conflict. On appeal, this Court, construing the evidence against the appellant, would affirm a new trial granted on the ground of insufficiency of the evidence. See Snider v. Hamilton, 268 Ala. 249, 105 So.2d 656 (1958). It also appears that the hostile behavior of one of the jurors disrupted the trial and upset the remaining jurors. The trial judge, under all the circumstances, acted within his sound discretion in granting a new trial.

The judgment of the trial court is affirmed.

AFFIRMED.

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


text:
    Melba STANDRIDGE, Administratrix of the Estate of Marvin Standridge, Deceased v. ALABAMA POWER COMPANY.
    81-292.
    Supreme Court of Alabama.
    July 30, 1982.

      Ralph E. Coleman, Birmingham, for appellant.
    Robert D. Norman and Gary A. Parker of Norman, Fitzpatrick & Wood, Birmingham, for appellee.
   FAULKNER, Justice.

Melba Standridge brought an action on behalf of the estate of her husband, Marvin Standridge, against Alabama Power Company for negligently causing Standridge’s death. The claim arose on July 21, 1976, when Marvin Standridge died from a heart attack he suffered while on the construction site of Miller Steam Plant in Jefferson County, Alabama. The steam plant was being constructed for Alabama Power Company.

Mr. Standridge was an iron worker, and an employee of Sullivan, Long & Hagerty, one of the subcontractors hired for construction of the plant. Approximately 1500 to 2000 workers were employed for the construction of the plant. The plant is located several miles from the nearest hospital, and ten to fifteen minutes from the nearest ambulance service. There is a first aid facility located at the plant; however, the facility was equipped with only basic first aid supplies such as splints, bandages, eye wash and so forth. The first aid station did not have any equipment to treat heart attack victims, nor were any trained medical personnel on the premises.

On July 21, 1976, at 6:30 A.M., Marvin Standridge suffered a heart attack and died. His estate alleged that Alabama Power Company had a duty to provide medical services for heart attack victims, and that the company’s breach of this duty proximately caused Mr. Standridge’s death. The cause was tried to a jury. The jury rendered a verdict in favor of the defendant, Alabama Power Company. Mr. Stan-dridge’s estate appeals.

The estate asserts several points as error. First, the estate challenges two of the trial judge’s evidentiary rulings. Second, the estate asserts that the trial judge erred in its jury instructions and in making comments to the jury on the evidence. Alabama Power Company contends that even if these constitute error, it is harmless error because as a matter of law, it could not be liable.

We will address the issue of Alabama Power’s possible liability first. Alabama Power asserts that as a matter of law, it could have no duty to Mr. Standridge, an employee of a subcontractor on a construction site. The company notes that the heart attack occurred prior to the beginning of the work day. Furthermore, the company pointed out that it had no contractual agreement with the various independent contractors on the steam plant construction site to provide medical services for the employees of the contractors. No regulatory agency required Alabama Power to provide such facilities. The company also contends that the estate presented no evidence at trial to prove that Alabama Power’s failure to provide such services proximately caused the death of Mr. Standridge. Thus, the company asserts that any error of the trial court is harmless error, since Standridge would not be entitled to recover in any case.

We cannot rule on Alabama Power’s contention that any error by the trial judge is harmless because there was no evidence that the company’s acts or omissions were the proximate cause of Standridge’s activities. The effect of the company’s argument is that the trial judge erred in failing to direct a verdict in favor of Alabama Power. The issue of the trial judge’s failure to direct a verdict should have been raised by a cross-appeal, but the company failed to do so. See ARAP 4(a)(3).

The estate attempted to place in evidence an article from the Journal of the American Medical Association, authored by the Council on Industrial Health. The article was entitled “A Guide for Medical Services for Construction Projects.” The article described what sort of medical services were necessary on a construction site, and suggested that on a site, such as the steam plant, full time medical personnel and facilities for the treatment of heart attacks should be provided. The estate sought to establish the article’s trustworthiness through the expert testimony of a doctor whose specialty is emergency health services. The trial judge refused to admit the article into evidence, but the judge permitted the physician to testify concerning the contents of the article.

The general rule in Alabama is that “[a] learned treatise, essay or pamphlet on a subject of science or art, which is testified to by an expert on the subject as being standard or trustworthy authority on the subject, is admissible as an exception to the hearsay evidence rule.”- Gamble, McEl-roy’s Alabama Evidence § 258.01(1) (3rd ed. 1977). In order for a document to be admissible under this exception to the hearsay rule, an expert in the field must attest to the document’s acceptance as an authority on a particular subject. Meadows v. Coca-Cola Bottling, Inc., 392 So.2d 825 (Ala. 1981).

The trial judge attempted to ascertain whether the plaintiff’s expert was qualified to testify concerning the article’s trustworthiness:

“THE COURT; Well, doctor, what we are getting down to is whether or not you have the knowledge to make a determination as to whether or not it is authoritative or not. That is the question that is really here and that is before me and that is why I am asking you. You said you had no knowledge of this before and you have said that you don’t operate in the area of industrial health where this is talking about.
“Is this outside, even though it may be in a book, is it outside of your knowledge of whether, in fact, it is authoritative or not in that field in which it is being offered?
“THE WITNESS: My knowledge is of the organization and the publication and the way they arrived at the standards, for example, for CPR and in terms of general knowledge about how they produce those publications or come to consensus opinions. I think they have been authoritative. I don’t have any particular expertise about industrial health.
“THE COURT: You don’t have any expertise in the area in which this is here?
“THE WITNESS: Correct.”

The plaintiff’s attorney did not attempt to establish the doctor’s knowledge of the area of industrial health, but merely relied on the doctor’s knowledge as a physician.

The trial judge is vested with a large measure of discretion in admitting evidence under the “learned treatise” exception to the hearsay rule. Meadows v. Coca-Cola Bottling, Inc., 392 So.2d at 826. See Southern Metal Treating Co. v. Goodner, 271 Ala. 510, 125 So.2d 268 (1960). Under the circumstances, we cannot say that the trial judge abused his discretion by refusing to admit the article.

The estate also alleges that the trial judge erred in refusing to admit evidence of subsequent, remedial measures taken by Alabama Power to improve the health care facilities at Miller Steam Plant. The estate concedes that the general rule in Alabama is that evidence of subsequent, remedial measures is inadmissible for an admission of a party’s negligence. Leeth v. Roberts, 295 Ala. 27, 322 So.2d 679 (1975). The estate seeks to admit the evidence to show Alabama Power’s control over the first aid facilities and its duty to maintain the facilities, not to show the company’s negligence. The estate claims that evidence of subsequent, remedial measures is admissible to establish duty or control.

There are several exceptions to the general rule of inadmissibility of evidence of subsequent repairs or remedial measures. A party may introduce such evidence to show the existence of a condition at the time of an accident; Dixie Electric Co. v. Maggio, 294 Ala. 411, 318 So.2d 274 (1975); to show the feasibility of the use of safeguards or precautionary measures; Werner v. Upjohn Co., 628 F.2d 848 (4th Cir. 1980); to impeach a witness, Norwood Clinic, Inc. v. Spann, 240 Ala. 427, 199 So. 840 (1941); or to give testimony which is part of the res gestae.

Alabama Power acknowledges another exception, that evidence of subsequent repairs may be admitted for the limited purpose of showing a party’s control of the alleged defective premises or instrumentality. Norwood Clinic, Inc. v. Spann, 240 Ala. 427, 199 So. 840 (1941); Gulf Railroad Co. v. Havard, 217 Ala. 639, 117 So. 223 (1928). Nevertheless, in order for evidence to be admissible to establish control, control must be a controverted issue in the case. Werner v. Upjohn Co., 628 F.2d 848 (4th Cir. 1980); Gulf Railroad Co. v. Havard, 217 Ala. 639, 117 So. 223 (1928). Alabama Power’s major contention was that it had no duty to Mr. Standridge, not that it had no control over the premises. The estate asserts that the evidence of subsequent remedies is admissible to establish the company’s duty to Mr. Standridge. We cannot agree. Duty is an essential element of a cause of action for negligence. The issue of duty does not fall outside the general rule that evidence of subsequent remedial measures is inadmissible to prove a party’s negligence. Thus, the trial judge properly excluded evidence of any subsequent remedies provided by Alabama Power.

Finally, the estate contends that the trial judge erred in failing to admit the minutes of a labor negotiation meeting into evidence. At the meeting, it is alleged that labor representatives stated that the first aid facilities at Miller Steam Plant were inadequate. The labor representatives requested that the power company make improvements to the first aid facilities. The attorneys for the power company raised a general objection to the admission of the minutes, which the trial judge sustained. A trial judge’s ruling concerning the admissibility of evidence after a general objection will be upheld if there is any ground to support the ruling. Clearly, the minutes of the meeting were hearsay. See Lavett v. Lavett, 414 So.2d 907 (Ala.1982). The burden was on the estate to show that the minutes were admissible under some exception to the hearsay rule. The estate failed to attempt to establish the admissibility of the evidence. Therefore, we will not disturb the trial judge’s ruling. We also find no merit to the estate’s contention that the trial judge erred in failing to admit the minutes because of the best evidence rule. The best evidence rule is not applicable in this case.

The estate makes several objections based on the trial judge’s jury instructions. The estate asserted that the trial judge erred in failing to inform counsel what jury charges he intended to give. The trial judge did inform counsel that it refused both parties’ proposed charges. Counsel for the estate did not request the judge to inform them of his proposed instructions nor did the estate show any prejudice which resulted therefrom. Under these circumstances, we find no reversible error. Trimble v. Bramco Products Co., 351 So.2d 1357 (Ala.1977).

The estate claims that the trial judge erred in giving certain jury charges. Nevertheless, the estate failed to timely object to the charges. It is clear that a party may not raise the issue of erroneous jury charges on appeal unless the party objects before the jury retires. Harris v. Berrey, 393 So.2d 984 (Ala.1981). The issue of whether the trial judge erred in giving certain jury instructions is not preserved on appeal.

The trial judge likewise did not err in failing to give two of the estate’s proposed jury charges, because each was adequately covered by the trial judge’s other instructions. We also find no merit to the contention that the trial judge committed reversible error in commenting on the evidence in the presence of the jury. We find nothing in the record that could be construed as a comment on the evidence.

There appearing no error in the record, the judgment below is affirmed.

AFFIRMED.

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


author: JONES, Justice.

text:
    Sankey BOSHELL, et al. v. Gaines W. KEITH, Drummond Coal Company, and United States Steel Corporation.
    81-441.
    Supreme Court of Alabama.
    July 30, 1982.
    Dennis L. Tomlin, Nashville, Tenn., and Nelson Allen, Jasper, for appellants.
    Edward R. Jackson of Tweedy, Jackson & Beech, Jasper, and H. Thomas Wells, Jr., of Cabaniss, Johnston, Gardner, Dumas & O’Neal, Birmingham, for appellees Gaines W. Keith and Drummond Coal Co.
    William F. Murray, Jr. and F. A. Flowers, III, of Thomas, Taliaferro, Forman, Burr & Murray, Birmingham, for appellee United States Steel Corp.
   JONES, Justice.

Appellants ask this Court to create an exception to the 20-year rule of prescription. Established precedents compel us to uphold the trial court’s ruling that the undisputed material facts do not fall within any recognized exception to the common law rule of repose. We affirm.

Appellee Dr. Gaines W. Keith commenced this action, seeking to quiet title to the mineral interests in eight parcels of real property situated in Walker County, Alabama. Dr. Keith claimed title to the mineral rights as grantee under a deed from Mae Boshell dated September 6, 1958. The action was brought in rem against the mineral estate and named as defendants, inter alia, United States Steel Corporation, a claimant with respect to parcels 1, 4, and 8, and the heirs and next of kin of M. J. and Mae Boshell, both deceased, claimants with respect to all eight parcels.

The Boshell heirs answered and counterclaimed, alleging that the 1958 deed from Mae Boshell to Dr. Keith was void, claiming a fee simple interest in the surface and mineral rights of all eight parcels, and requesting a declaration that “all other parties to this action be adjudged as having no estate, right, title, interest in said property or any part thereof and they be forever barred from asserting any estate, right, title or interest of any nature in or to said property adverse to the [Boshell heirs’] rights.”

U. S. Steel, in its answer, claimed sole and absolute ownership of the mineral rights in parcels 1, 4, and 8, pursuant to a deed dated October 1, 1902, from the Sheffield Coal, Iron & Steel Company. U. S. Steel asserted no interest in the mineral or surface rights of the remaining parcels 2, 3, 5, 6, and 7.

The Boshell heirs moved to join Drum-mond Coal Company as plaintiff-interve-nors, because Drummond was the lessee of certain of the disputed mineral interests from Dr. Keith. The motion for joinder was subsequently granted. The Boshell heirs also included in their answer a cross claim against U. S. Steel, claiming the mineral rights in parcels 1, 4, and 8 based upon the alleged invalidity of the 1902 deed.

Dr. Keith and Drummond filed motions to dismiss the Boshell heirs’ counterclaim challenging the 1958 deed, based upon the statute of limitations and 20-year rule of repose or prescription. U. S. Steel also filed a motion to dismiss the cross-claim of the Boshell heirs, premised upon the statute of limitations, the 20-year rule of repose, and res judicata.

After a hearing on these motions to dismiss, the trial court found the following dates determinative of the prescription issue:

1902 — Sheffield Coal, Iron & Steel Company deed to U. S. Steel
1956 — The heirs and next of kin of M. J. Boshell deed parcels 1-8 to Mae Boshell in fee simple
1958 — Mae Boshell deeds parcels 1-8 to Dr. Gaines W. Keith
1970 — (June 22) Mae Boshell dies, willing all property to Mary Hanson, one of the Boshell heirs
1976 — (April 10) Keith leases mineral rights to Drummond Coal Company
1980 — (February or March) Boshell heirs claim they first discovered that the 1958 deed to Dr. Keith was the result of fraud, forgery, conflict of interest, and incompetency.
1980 — (July 11) Dr. Keith files suit to quiet title
1980 — (August 14) Boshell heirs counterclaim against Keith (and later Drum-mond) challenging the 1958 deed to Dr. Keith, and claim all eight parcels to the exclusion of all other parties in the suit, later treated by the court as a cross-claim against U. S. Steel challenging the 1902 deed from Sheffield Coal, Iron & Steel Co.

Applying the rule of repose to these findings, the trial court dismissed the Boshell heirs’ counterclaim against Dr. Keith and Drummond and their cross-claim against U. S. Steel. From this interlocutory order, an ARAP 5 appeal was perfected.

We affirm.

SCOPE OF INTERLOCUTORY REVIEW

We note at the outset that the determination as to which party holds superior title to the mineral rights in parcels 1, 4, and 8, as between Dr. Keith, Drummond, and U. S. Steel, and to the other five parcels, as between Dr. Keith, Drummond, and the other originally named defendants, remains pending in the circuit court and is not an issue on this appeal. The only portion of the judgment certified as final for purposes of interlocutory appeal is the order of October 7, 1981, foreclosing the challenge of the Boshell heirs to the 1958 Keith deed and the 1902 U. S. Steel deed.

FACTS

M. J. Boshell died intestate on September 21, 1956. The next year, on February 20, 1957, the heirs at law of M. J. Boshell deeded in fee simple all the putative interest of their father to their mother, Mae Boshell. On September 6, 1958, Mae Bo-shell deeded her right, title, and interest in the mineral estate to parcels 1 through 8 to Dr. Gaines W. Keith. This conveyance was witnessed and acknowledged by John D. Petree, Esq., now deceased. Subsequent to the transaction between Mae Boshell and Dr. Keith, Dr. Keith or his wife paid the yearly tax assessments on the mineral rights to the eight parcels. Mae Boshell and the Boshell heirs paid no taxes on the subject property (except for 20 acres not subject to these proceedings) after the 1958 conveyance.

Not until February of 1980 did any of the Boshell heirs (through their counterclaim) seek to assert a claim to the property in question. This was some 21 years and 6 months after the 1958 deed from Mae Bo-shell to Dr. Keith.

SUMMARY OF APPELLANTS’ ARGUMENT

In essence, the counterclaim of the Bo-shell heirs seeks to have the court set aside the deed from Mae Boshell to Dr. Gaines Keith (executed and recorded in 1958) or to set aside or reform the 1957 fee simple deed from the heirs of M. J. Boshell to Mae Boshell, their mother.

The Boshell heirs assert that, despite the lapse of more than 20 years from the deeds under attack, the Alabama rule of repose nevertheless does not bar their claim to the mineral interest in parcels 1 through 8. This supposition is premised upon four assertions: 1) that the rule of repose does not operate against a void deed (and that an allegedly forged deed is void); 2) that Dr. Keith must be in actual possession of the minerals before the 20-year period runs; 3) that Mae Boshell was “treacherously betrayed” by attorney John D. Petree in her conveyance to Dr. Keith; and 4) that the Boshell heirs were “justifiably ignorant” of their claim or cause of action until 1980, thereby tolling the 20-year period of repose until such actual discovery.

20-YEAR RULE OF REPOSE

Since McArthur v. Carrie’s Admr., 32 Ala. 75 (1858), this State has followed a rule of repose, or rule of prescription, of 20 years. This principle of repose or prescription is similar to a statute of limitations, but not dependent upon one, and broader in scope. Scott v. Scott, 202 Ala. 244, 80 So. 82 (1918); Patterson v. Weaver, 216 Ala. 686, 114 So. 301 (1927). It is a doctrine that operates in addition to laches. Unlike lach-es, however, the only element of the rule of repose is time. It is not affected by the circumstances of the situation, by personal disabilities, or by whether prejudice has resulted or evidence obscured. Wilkerson v. Wilkerson, 230 Ala. 567, 161 So. 820 (1935); 30A C.J.S., Equity § 113 (1965), at p. 33. It operates as an absolute bar to claims that are unasserted for 20 years. Roach v. Cox, 160 Ala. 425, 49 So. 578 (1909). The rationale for this absolute bar to such actions was set forth in Snodgrass v. Snodgrass, 176 Ala. 276, 58 So. 201 (1912), as follows:

“As a matter of public policy, and for the repose of society, it has long been the settled policy of this state, as of others, that antiquated demands will not be considered by the courts, and that, without regard to any statute of limitations, there must be a time beyond which human transactions will not be inquired into. It is settled that, after a period of 20 years, without any payment, settlement, or other recognition of liability, mortgages and liens will be presumed to have been paid, settlements will be presumed to have been made by administrators, trustees, agents, and other persons occupying fiduciary positions. It is necessary for the peace and security of society that there should be an end of litigation, and it is inequitable to allow those who have slept upon their rights for a period of 20 years, after they might have demanded an accounting, and after, as is generally the case, the memory of transactions has faded and parties and witnesses passed away, to demand an accounting. The consensus of opinion in the present day is that such presumption is conclusive, and the period of 20 years, without some distinct act in recognition of the trust, a complete bar; and, as said in an early case, ‘the presumption rests not only on the want of diligence in asserting rights, but on the higher ground that it is necessary to suppress frauds, to avoid long dormant claims, which, it has been said, have often more of cruelty than of justice in them, that it conduces to peace of society and the happiness of families, “and relieves courts from the necessity of adjudicating rights so obscured by the lapse of time and the accidents of life that the attainment of truth and justice is next to impossible.” — Harrison et a 1. v. Heflin, Adm’r, et al., 54 Ala. 552, 563, 564; Greenlees’ Adm’r v. Greenlees et al., 62 Ala. 330; Nettles v. Nettles, 67 Ala. 599, 602; Garrett v. Garrett, 69 Ala. 429, 430; Semple v. Glenn, 91 Ala. 245, 260, 6 South. 46, 9 South. 265, 24 Am.St.Rep. 929; Roach v. Cox, 160 Ala. 425, 427, 49 South. 578, 135 Am.St.Rep. 107.” (Emphasis supplied.) Snodgrass, at 176 Ala. 280, 281, 58 So. 201.

The rule of repose or prescription is a defensive matter similar to, but broader than, a statute of limitation. Wilkerson, supra; Patterson, supra; 30A C.J.S., Equity § 113, at p. 33. Thus, it is unlike adverse possession, which affirmatively establishes title. The rule of repose has been described as “. .. a rule of property in this state, [and] tends to the repose of society, and the quieting of litigation.” Spencer v. Hurd, 201 Ala. 269, 270, 77 So. 683, 684 (1918).

The only circumstance that will stay the running of the 20-year period of repose is a recognition of the existence of the claimant’s right by the party defending against the claim. Eatman v. Goodson, 262 Ala. 242, 78 So.2d 625 (1955); Hendley v. First National Bank of Huntsville, 235 Ala. 664, 180 So. 667 (1930); 30A C.J.S., Equity § 113, at p. 33, and n. 24. There is no allegation by the Boshell heirs that any such recognition of their alleged rights by Dr. Keith, Drummond Coal Company or U. S. Steel has occurred.

Despite Appellants’ multifaceted presentation of issues for our consideration on this appeal, we fail to ascertain, from our analysis of the record below, anything indicative of error by the trial court in its application of the rule of repose or prescription to these proceedings by the Boshell heirs against Dr. Keith and Drummond Coal Company. Simply stated, Appellants’ lack of celerity in this cause, despite their numerous assertions to the contrary, delivered for them the coup de grace.

Recently, in Lankford v. Sullivan, Long & Hagerty, 416 So.2d 996 (Ala.1982), this Court struck down, as unconstitutional, a statutorily imposed 10-year rule of repose. Our holding today in no way conflicts with Lankford. The 20-year rule of repose applied here differs materially from the stricken 10-year rule (Code 1975, § 6-5-502(c)). For example, the 20-year common law rule is couched in terms of the “running of the period against claims,” “absolute bar to unasserted claims,” “lack of diligence in asserting rights," “sleeping upon their rights,” etc. The voided statute, on the other hand, sought to commence the running of the 10-year period from some arbitrary date unrelated in point of time to the accrual of a cause of action or the prior existence of a viable and cognizable claim. The fact that the common law rule is premised upon the pre-existing right to assert a claim is demonstrated in Duncan v. Johnson, 338 So.2d 1243 (Ala.1976), in which the Court refused to apply the 20-year bar against remaindermen.

THE BOSHELL HEIRS’ CLAIM AGAINST U. S. STEEL

The only reference by counsel for the Boshell heirs to U. S. Steel in their 96-page initial brief is a statement to the effect that this appeal arises from orders of the trial court dismissing the counterclaim by the Boshell heirs challenging the 1958 deed to Dr. Keith, and dismissing the cross-claim by the Boshell heirs challenging the 1902 deed to U. S. Steel.

Indeed, counsel for Appellants stated to this Court that, but for his inability to fully discover the records and files of Drummond Coal Company, regarding the alleged ownership and history of the subject 8 parcels, U. S. Steel would be dropped as a party to these proceedings.

The correctness vel non of the order below dismissing the cross-claim by the Bo-shell heirs against U. S. Steel is never raised as an issue for review in their initial brief to this Court. When an appellant fails to argue an issue in its brief, that issue is waived. In Merchants Bank v. Cotton, 289 Ala. 606, 609, 269 So.2d 875 (1972), it was held that where an assignment of error (“issue presented for review,” ARAP 20) is not argued in the brief of the appellant, the issue will not be considered on appeal. See, also, Smith v. Jackson, 277 Ala. 257, 258, 169 So.2d 21 (1964).

The trial court’s dismissal of the counterclaim and cross-claim by the Boshell heirs is due to be, and hereby is, affirmed.

AFFIRMED.

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


text:
    Ex parte Shearn MOODY, Jr. In re STATE of Alabama, ex rel., Tharpe FORRESTER, Commissioner of Insurance v. EMPIRE LIFE INSURANCE COMPANY OF AMERICA, an Alabama Corporation.
    81-502.
    Supreme Court of Alabama.
    July 30, 1982.
    William A. Dobrovir of Dobrovir, Oakes & Gebhardt, Washington, D. C., and William H. Mills of Redden, Mills & Clark, Birmingham, for petitioner.
    James W. Webb of Webb, Crumpton & McGregor, Montgomery, William A. Robinson and Deborah J. Long of Cabaniss, Johnston, Gardner, Dumas & O’Neal, Birmingham, for intervenor, Protective Life Ins. Co.
   FAULKNER, Justice.

Moody petitions this Court to issue a writ of mandamus to Circuit Judge William C. Barber of the 10th Judicial Circuit, to permit him to institute what he designates as a purely in personam action in a United States District Court in Texas. Moody is subject to an injunction against his filing certain law suits that Judge Barber issued on January 6, 1975, in State ex rel. Forrester v. Empire Life Insurance Company, CA # 171-687, Circuit Court of Jefferson County.

The proposed complaint attached to Moody’s mandamus petition seeks damages against the State of Texas; Protective Life Insurance Company; John Bookout, a former Alabama Insurance Commissioner; William Baxley, a former Attorney General of Alabama; and a host of Texas defendants. Moody claims in the complaint that the defendants have deprived him of the value of his majority interest in Empire Life, now in receivership. Moody alleges that his proposed action for damages will in no way interfere with, delay or stop the Empire Life receivership proceedings.

Judge Barber answers the petition for mandamus by saying that Moody has failed to offer any evidence that the proposed action in the United States District Court did not involve the Empire Life receivership proceedings.

From our review of Moody’s complaint, and the evidence submitted by him in support of his mandamus petition, and the answer of Judge Barber, we conclude that the proposed civil action for damages is inextricably connected with the Empire receivership. To permit the suit would be an interference with the receivership and therefore mandamus is denied.

WRIT DENIED.

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


text:
    Ex parte Clifford Ray TANKSLEY, as father of James Ray Tanksley, a minor, and Clifford Ray Tanksley and Paulette Tanksley, as Administrators of the Estate of James Ray Tanksley, deceased. In re Clifford Ray TANKSLEY, etc., et al. v. ALABAMA POWER COMPANY, a corporation, et al.
    81-801.
    Supreme Court of Alabama.
    Aug. 4, 1982.
    David Laning of Emond & Vines, Birmingham, for petitioners.
    Samuel H. Franklin of Bradley, Arant, Rose & White, Birmingham, for respondent A. B. Chance Co.
    John P. Scott, Jr. of Balch, Bingham, Baker, Hawthorne, Williams & Ward, Birmingham, for respondent Alabama Power Co.
   PER CURIAM.

Plaintiffs Clifford Ray Tanksley and Paulette Tanksley filed suit on August 29,1980, in the circuit court of Jefferson County against Jerry Leonard, United States Fidelity and Guaranty Company, A. B. Chance Company (Pittman Division), Cowin Equipment Co., Inc., and Cowin Equipment and Road Machinery, Inc., for the wrongful death of their son, James Ray Tanksley. Plaintiffs’ son was killed when a boom on a truck came in contact with an overhead electrical power wire. The incident occurred on August 30, 1979, in Montgomery County. Plaintiffs amended their complaint on August 26, 1981, by adding Alabama Power Company as an additional defendant.

On September 30, 1981, Alabama Power Company filed a motion to transfer the case from Jefferson County to Montgomery County. The motion was granted on November 30, 1981, without objection from Plaintiffs, and the case was subsequently transferred.

On May 24,1982, Plaintiffs filed a motion to transfer the case back to Jefferson Circuit Court. This motion was denied and, at the suggestion of the Montgomery Circuit Court, Plaintiffs filed a motion with Jefferson County Circuit Court to reconsider the original order to transfer. This motion was also denied.

In the six months between the uncontested transfer to Montgomery County and Plaintiffs’ filing the motion to transfer the case back to Jefferson County, the action proceeded expeditiously in Montgomery County. Interrogatories and motions were filed and appearances were made in the Montgomery Circuit Court, and the trial judge ruled on motions, conducted conferences with counsel for all parties, and ordered discovery cut-offs and a trial setting. Plaintiffs had filed answers to interrogatories, a motion for default judgment, an objection to notice of deposition, and a motion for a protective order in the Montgomery Circuit Court.

Plaintiffs are residents of Jefferson County and the incident from which the cause of action arises occurred in Montgomery County. Defendants A. B. Chance Company and United States Fidelity and Guaranty Company are foreign corporations licensed to do business in Alabama and have agents in Montgomery and Jefferson Counties conducting business. Alabama Power Company and Cowin Equipment Company are domestic corporations doing business in both Jefferson and Montgomery Counties.

Plaintiffs argue that because the action was timely commenced in the proper county and court and the original venue was proper, the trial court’s transferring venue to the Montgomery Circuit Court was improper and a violation of state law (Code 1975, §§ 6-3-7 and 6-3-20; A.R.C.P. 82(d); and Medical Service Administration v. Dickerson, 362 So.2d 906 (Ala.1978)).

Notwithstanding the validity of Plaintiffs’ argument under normal circumstances, we hold that the failure of Plaintiffs to timely object to the original motion to transfer and their subsequent failure to question the transfer order constitutes a waiver of Plaintiffs’ original right to select venue.

Jordan v. Guaranty Pest Control, Inc., 292 Ala. 601, 298 So.2d 244 (1974), held:

“[I]t seems clear that the appropriate method to attack improper venue is to appear and make timely motion, and on a failure to do so the improper venue is waived . . . . ” Jordan, 292 Ala. at 606, 298 So.2d 244.

While a plaintiff’s selection of venue and the challenge to improper venue are rights and privileges which we uphold and protect, they are, nonetheless, rights that can be waived. Plaintiffs not only failed to object to the original motion to transfer to Montgomery Circuit Court until nearly six months had elapsed, but they continued to prosecute the action in that court. That court has commendably moved the litigation along and has now set the case for trial. Plaintiffs’ objection to the change of venue comes too late in light of both the time elapsed and Plaintiffs’ conduct in the Montgomery court, which indicate Plaintiffs’ consent to such transfer.

In the early case of State, ex rel. Phillips v. Benners, Chancellor, 172 Ala. 168, 55 So. 298 (1911), the court held:

“[TJhere is a clearly defined distinction between the assertion of a substantial and independent right, and the control of a more dependent rule of practice or mode of procedure ... In the latter case there is every reason why one who complains should not delay his application for relief. He should be vigilant to know his rights, and diligent to prevent their abuse. Considerations of general propriety, as well as the dignity of courts, and the integrity of their proceedings, demand promptitude of action, if he would interfere.” Phillips, 172 Ala. 177, 178, 55 So. 298.

To allow Plaintiffs to delay the disposition of this matter at this late stage would be, indeed, an affront to the dignity and integrity of the courts of this State and their proceedings.

We hold that neither the Jefferson County Circuit Court nor the Montgomery County Circuit Court abused the discretion vested in each in denying the relief sought by Plaintiffs.

The petition for mandamus is denied.

WRIT DENIED.

TORBERT, C. J., and FAULKNER, AL-MON, SHORES, EMBRY and BEATTY, JJ., concur.

MADDOX, JONES and ADAMS, JJ., not sitting.


author: SHORES, Justice.

text:
    Shelia C. DANIEL, as Administratrix, etc. v. The HEIL COMPANY, INC., et al.
    CER-23.
    Supreme Court of Alabama.
    Aug. 6, 1982.
    Leon Garmon, Gadsden, for petitioner.
    J. Michael Crouch, Birmingham, for The Heil Co., Inc. et al.
    Francis H. Hare, Jr., of Hare, Wynn, Newell & Newton, Birmingham, for amicus curiae Alabama Trial Lawyers’ Ass’n.
   SHORES, Justice.

This is a certified question from the United States District Court for the Northern District of Alabama, filed on the court’s own motion by the Honorable U. W. Clem-on, U. S. District Judge. The certified question is filed pursuant to Alabama Rules of Appellate Procedure, Rule 18, and is determinative of an action before the federal court.

On October 23, 1979, the plaintiff’s decedent sustained injuries and died as the result of an accident involving a sanitation truck that was in part designed, manufactured, assembled, and marketed by the defendant, The Heil Company, Inc.

On June 9, 1981, the plaintiff filed this action, claiming damages for wrongful death, pursuant to Ala.Code 1975, § 6-5-410, and alleging a products liability claim, based on the Extended Manufacturer’s Liability Doctrine.

The defendant, The Heil Company, has timely asserted the one-year statute of limitations contained in § 6-5-502(a)(1), Ala. Code 1975, as an affirmative defense.

The question posed is: Under the facts stated, does the wrongful death limitations period (Ala.Code 1975, § 6-5-410(d)) or the more recent products liability limitations statute (Ala.Code 1975, § 6-5-502(a)(1), as amended) apply?

We answer as follows: The wrongful death limitations period contained in § 6— 5 410(d) applies. Section 6-5-502, et seq., Ala.Code 1975, were declared unconstitutional by this Court in Lankford v. Sullivan, Long & Hagerty, 416 So.2d 996 (Ala.1982).

CERTIFIED QUESTION ANSWERED.

TORBERT, C. J., and FAULKNER, JONES, ALMON, EMBRY, BEATTY, and ADAMS, JJ., concur.


author: EMBRY, Justice.

text:
    EARLE, McMILLAN & NIEMEYER, INC., a Corp. and Maxine Pope v. Thomas S. DEKLE and Virginia L. Dekle.
    80-517.
    Supreme Court of Alabama.
    Aug. 6, 1982.

      Charles C. Simpson, III, of Owens & Simpson, Bay Minette, for appellants.
    James R. Owen of Owen & Ball, Bay Minette, for appellees.
   EMBRY, Justice.

Appellees, Thomas A. and Virginia L. De-kle, filed this action against appellants, Earle, McMillan & Niemeyer, Inc. and Maxine Pope for fraudulent misrepresentation of a material fact. A judgment for $30,000 was entered upon a verdict in that amount and defendants appeal.

We affirm.

In March 1974, the Grand Hotel Company conveyed Lot 6, Unit 4, of Lakewood Club Estates to Charles Merritt. The conveyance was recorded and was subject to various restrictions, conditions, covenants and easements. One of the restrictions contained in that warranty deed was:

“(e) In the event the Grantee, his heirs or personal representatives, fail, for a period of five (5) years after the date of this deed, to commence construction of, and to prosecute with diligence to completion, a residence in accordance with the aforesaid restrictions on said property, the Grantor reserves unto itself, for a period of three (3) years after the expiration of the time herein permitted for construction of a residence on the herein described property, the right and option to repurchase said property ... at the price herein paid to the Grantor for such property.”

Maxine Pope is a licensed real estate salesperson operating under the direction of Earle, McMillan & Niemeyer, Inc., a real estate brokerage firm located in Baldwin County. In December 1977, Pope contacted the Dekles, who were planning to move to Baldwin County, and offered to show them property there. During January 1978, Pope showed them two condominiums, a house, and Lot 6, Unit 4, of Lakewood Club Estates.

Pope testified that on 4 February 1978, she and Mr. Dekle viewed Lot 6 and at that time she informed him of the restrictions on the property, including the repurchase option. Pope also testified that she particularly informed Mr. Dekle that there were approximately seventeen (17) months upon which to build a home on the lot before the Grand Hotel Company could exercise its option to repurchase Lot 6, Unit 4. Each of the Dekles testified that they viewed Lot 6 with Pope on the occasion she testified about and nothing was said about the repurchase option.

Later, during the same day, an offer to purchase Lot 6 for $55,000 was executed and signed by Mr. Dekle. This offer was rejected by the sellers, Wayne and Dorothy Gustafson. A few days later the Dekles raised their offer to $59,200, which was accepted. Both parties agreed to delay closing of the sale until July 1978.

Mr. Dekle requested a copy of the restrictions concerning Lakewood Club Estates prior to the July closing. He received a copy of the “Declaration of Restrictions, Conditions, Covenants and Easements of Lakewood Club Estates, Unit Four, as owned by Grand Hotel Company”, which had been recorded at Miscellaneous Book 24, pages 513-21, but which did not contain the repurchase option found in the recorded deed from the Grand Hotel Company to Merritt.

About 14 July 1978, the closing took place with only Pope and Mr. Dekle present. At this time Dekle received the closing documents, including copies of the deed and title binder. Only the following restrictions were contained in that deed:

“(1) Restrictive covenants contained in instrument executed by Grand Hotel Development Corporation recorded in Miscellaneous Book 24, page 513, and in Deed Book 462, Page 965.
“(2) Prior reservation of all oil, gas and minerals, and all rights in connection therewith, as contained in instrument recorded in Deed Book 462, Page 965.”

Dekle testified that he asked Pope about the restrictions in Deed Book 462, page 965, and that she told him the deed book and page number in both paragraphs were identical and they both referred to the same thing. Dekle’s copy of the deed was then introduced as evidence. On the side of the deed next to the restrictions were written the words: “what it meant” and then the words “nothing but oil and mineral rights”. Pope testified that she didn’t recall such a conversation and insisted that she had earlier told Dekle about all the restrictions, including the repurchase option. Both Pope and Starke Irvine, a principal in Earle, McMillan & Niemeyer, Inc., testified that the repurchase option was an important restriction and should have been communicated to the Dekles.

On 8 August 1979 the Dekles entered into an agreement to sell Lot 6 to David Head for $90,000. Two days later, on 10 August 1979, the Grand Hotel Company notified the Dekles by certified mail of its decision to exercise the repurchase option set out in Deed Book 462, pages 965-67. The Dekles testified that this was the first time they knew of the repurchase option. Immediately, they called Pope and Irvine to inquire about this restriction and to ask for assist-anee in straightening out the problem. After three days, failing to receive a reply, Mr. Dekle contacted Irvine again but was told that there was nothing either Irvine or Pope could do to help the Dekles.

Dekle then contacted Jim McLean, who worked for the Grand Hotel Company, and they negotiated an agreement whereby the Grand Hotel Company paid the Dekles $59,-262.50, the purchase price originally paid by the Dekles. The Grand Hotel Company then sold the property to Head.

In this appeal, Pope, and Earle, McMillan & Niemeyer, Inc., contend the trial court erred in denying their motions for a directed verdict and j. n. o. v. In support of such argument, they claim the evidence conclusively established that the alleged fraudulent act was discovered or should have been discovered by the Dekles at the time of the closing of the sale of the property on 14 July 1978, well over one year prior to the filing of this suit in January 1980.

Under § 6-2-3, Code 1975, an action for fraud must be brought within one year from the discovery of the fraud. The statute of limitations will not begin to run until the plaintiff knows of facts which would have put a reasonable mind on notice of the possible existence of fraud. Seybold v. Magnolia Land Co., 376 So.2d 1083 (Ala. 1979).

In order to show that they fell within the savings period of the statute of limitations, the Dekles presented evidence that they did not know of the repurchase option in the deed until such option was exercised by the Grand Hotel Company. Mr. Dekle testified that he and his wife had, in fact, planned to build a home on Lot 6, Unit 4, before he became ill. He also testified he would not have bought the property if he had known there was a repurchase option in the original deed that was incorporated in the deed to him and Mrs. Dekle. Most importantly, Dekle testified that he had no reason to doubt the truth of the statements made by Pope, especially after he questioned her concerning the meaning of the restrictions referred to on the deed to him and Mrs. Dekle.

Facts showing a fraud are considered to be discovered when they should have been discovered by one who has acquired knowledge sufficient to provoke inquiry in the mind of a person of ordinary prudence. Butler v. Guaranty Savings & Loan Ass’n, 251 Ala. 449, 37 So.2d 638 (1948). One who is being deceived, however, may be lulled into a false sense of security. Consequently, “[a] party thus situated is not required to presume fraud or suspect it, until something comes to him leading a just person to suspect and make inquiry.” Williams v. Bedenbaugh, 215 Ala. 200, 110 So. 286 (1926).

Pope, and Earle, McMillan & Niemeyer, Inc. contend the Dekles were placed on notice about the repurchase provision in the deed because that restriction was in public records. However, testimony was presented to the jury indicating that Pope made an incorrect representation to the Dekles about the restriction and from that the jury could, and did, determine that the Dekles relied upon such misstatement. Real estate brokers and salespersons should not be exempt from responsibility for statements and representations they make to induce a purchaser to act, when, under the circumstances, these amount to fraud in a legal sense. Real estate brokers and salespersons are subject to professional standards as established by § 34-27-31, Code 1975, and should use extreme caution and care in making statements and representations to their clients.

The question of when the Dekles actually discovered the fraud is a question of fact properly to be decided by the jury. Papastefan v. B & L Construction Co., Inc. of Mobile, 356 So.2d 158 (Ala.1978); appeal after remand, 385 So.2d 966 (Ala.1980). A directed verdict may not be given where the evidence is open to a reasonable inference of material facts unfavorable to the moving party. Roberts v. Carroll, 377 So.2d 944 (Ala.1979). Because the jury could, and did, decide from the evidence that the statute of limitations had not yet run, the trial court did not err by denying defendants’ motion for a directed verdict. Williamson v. United Farm Agency of Ala., Inc., 401 So.2d 759 (Ala.1981).

Additionally, Pope, and Earle, McMillan & Niemeyer, Inc., claimed the trial court erred in denying their motion for j. n. o. v. This court recently reaffirmed the rule that a post-trial motion for j. n. o. v. is really just a renewal of the party’s motion for directed verdict, and that motion cannot be granted unless the motion for a directed verdict should have been granted. Williams v. United Farm Agency of Ala., Inc., supra. Because defendants’ motion for directed verdict was properly denied, we hold the trial court did not err in denying the defendant’s motion for j. n. o. v.

Pope, and Earle, McMillan & Nie-meyer, Inc. also contend that in an action for fraud, punitive damages can be awarded only if the fraud is malicious, oppressive, or gross. They believe that the excessive nature of the damages demonstrates the verdict herein awarded punitive damages. We disagree that the verdict necessarily includes an award of punitive damages, although an award could be sustained under the evidence in this case.

Generally, damages in an action for fraud consist of the difference between the value of property as it was represented and its actual value. Boriss v. Edwards, 262 Ala. 172, 77 So.2d 909 (1954). The Dekles paid a consideration of $59,200 for the property. At the time the repurchase option was exercised, the Dekles had already signed an agreement, with a willing and able buyer, to sell the property for $90,000. Had Lot 6, Unit 4, been free of the restriction as it was represented to be, i.e., not subject to the repurchase restriction, then the Dekles would have received a $30,800 profit from such conveyance. The jury verdict of $30,000 is somewhat less than that which could have been appropriately awarded to the Dekles, as compensatory damages, by application of the principle enunciated in Boriss.

For the foregoing reasons, the judgment below is due to be, and is hereby, affirmed.

AFFIRMED.

TORBERT, C. J., and FAULKNER, AL-MON, BEATTY and ADAMS, JJ., concur.


text:
    Ida L. Waters HINESLEY, et al. v. E. DAVIDSON, et al.
    80-926.
    Supreme Court of Alabama.
    Aug. 6, 1982.
    Bert S. Nettles of Nettles, Barker & Ja-necky, Mobile, for appellants.
    Champ Lyons, Jr., Coale, Helmsing, Lyons & Sims, Mobile, and J. B. Blackburn, Bay Minette, for appellees.
   FAULKNER, Justice.

This is an appeal from an order granting defendants’ motion for summary judgment, and dismissing the cause of action.

This is the third appeal to this Court in a case that was first litigated in 1956. The first appeal to this Court was in 1976, which we will designate as Hinesley I. That case is reported at 335 So.2d 380 (Ala.1976). The second appeal, designated as Hinesley II, is reported at 395 So.2d 1 (Ala.1981).

In Hinesley I, authored by Justice Blood-worth, and in Hinesley II, authored by Justice Jones, the issues were the same issues as now presented to this Court in Hinesley III, i.e., whether the redemptive rights of remaindermen (plaintiffs-appellants) under a mortgage were barred by either prescription, the 10-year statute of limitations on actions to recover possession of lands, or laches. In those two decisions, this Court held that the plaintiffs had not lost their redemptive rights.

The confusion, and perhaps misunderstanding of this Court’s order in Hinesley II triggered Hinesley III. In Hinesley II we stated:

“Consequently, we are disinclined to divert our path from that laid down by Mr. Justice Bloodworth in his initial interpretation of this cause in Hinesley I. Therefore, the trial court’s order denying the remainderman’s right of redemption is reversed; and this cause is remanded for further proceedings to adjudicate the respective parties’ redemptive rights.”

The words of the order, “adjudicate the respective parties’ redemptive rights” specifically appear to have confused the trial court. In his order dated September 18, 1981, granting defendants’ motion for summary judgment, and dismissing the cause of action, the trial judge stated:

“Had the Supreme Court been inclined to foreclose the availability of any defenses to an equity of redemption on remand, it could have clearly done so by use of the language of remandment to ‘adjudicate the respective plaintiffs’ redemptive rights.’ ” (Emphasis added.)

We opine that this interpretation of Hines-ley II begs the question. The “respective parties’ redemptive rights” could only include the “respective plaintiffs’ redemptive rights.” The plaintiffs are the only persons seeking redemption.

The trial court’s order granting summary judgment, and dismissing the cause of action is grounded on laches as a defense that prevents redemption. We have held in Hinesley I and Hinesley II that the defense of laches is not available to the defendants

(appellees). We do so again on the authority of those two prior decisions.

The trial court’s order granting summary judgment, and dismissing the cause of action is reversed, and the cause remanded for the trial court to enter an order permitting the remaindermen to redeem the mortgages and vendor’s lien in question, and to hold further proceedings: (1) to determine the amounts, if any, due appellees who hold the mortgages and vendor’s lien for such redemption, and (2) to determine whether any amount is owed by appellees to appellants under the prayer by appellants for an accounting.

REVERSED AND REMANDED WITH DIRECTIONS.

JONES, ALMON, SHORES, EMBRY, BEATTY and ADAMS, JJ., concur.

TORBERT, C. J., dissents.

MADDOX, J., not sitting.


text:
    TUTWILER DRUG COMPANY, INC., and Streetlife, Inc. v. The CITY OF BIRMINGHAM, Alabama, Mayor Richard Arrington, etc., and the Individual Members of the City Council, etc.
    81-369.
    Supreme Court of Alabama.
    Aug. 6, 1982.
    W. Eugene Rutledge of Rutledge & Year-out, Birmingham, for appellant.
    J. M. Breckenridge of Cabaniss, Johnston, Gardner, Dumas & O’Neal and Alton B. Parker, Jr. of Spain, Gillon, Riley, Tate & Etheredge, Birmingham, for appellees.
    Drayton N. Hamilton, Montgomery, for amicus curiae Alabama League of Municipalities.
   JONES, Justice.

The issue: whether absolute immunity is a viable defense on behalf of the Mayor and members of the City Council of the City of Birmingham, in their individual capacities, in a claim based on negligence and abuse of discretion in the exercise of their respective legislative functions. We hold that it is, and affirm.

In May of 1981, the City of Birmingham, through the city council, adopted a master plan for the redevelopment and renewal of downtown Birmingham. Implementation for projects such as the master plan is provided for in Code 1975, § 24-2-1, et seq. That chapter provides, in part:

“§ 24-2-1.
“(a) It is hereby found and declared:
“(1) That there exist in many communities within the state blighted areas, as defined herein, or areas in the process of becoming blighted;
“(2) That such areas impair economic values and tax revenues, cause an increase in and spread of disease and crime and constitute a menace to the health, safety, morals and welfare of the residents of the state, and that these conditions necessitate excessive and disproportionate expenditures of public funds for crime prevention and punishment, public health and safety, fire and accident protection and other public services and facilities;
“(3) That the clearance, replanning and preparation for rebuilding of these areas and the prevention or the reduction of blight and its causes are public uses and purposes for which public money may be spent and private property acquired and are governmental functions of state concern;
“(4) That redevelopment activities will stimulate residential construction which is closely correlated with general economic activity and that the undertakings authorized by this chapter will aid the production of better housing and more desirable neighborhood and community development at lower costs and will make possible a more stable and larger volume of residential construction, which will assist materially in achieving and maintaining full employment; and
“(5) That it is in the public interest that advance preparation for such projects and activities be made now.
“(b) The necessity in the public interest for this chapter is hereby declared as a matter of legislative determination.”
“§ 24-2-2.
“[A]ny incorporated city or town may carry out any work or undertaking, hereafter called a ‘redevelopment project’:
“(1) To acquire blighted areas, including slum areas, with buildings or improvements which, by reason of dilapidation, obsolescence, overcrowding, faulty arrangement or design, lack of ventilation, light and sanitary facilities, excessive land coverage, deleterious land use or obsolete layout, or any combination of these or other factors, are detrimental to the safety, health, morals or welfare of the community;
“(2) To acquire other real property for the purpose of removing, preventing or reducing blight, blighting factors or the causes of blight;
“(3) To clear any areas acquired and install, construct or reconstruct streets, utilities and site improvements essential to the preparation of sites for uses in accordance with the redevelopment plan;
“(4) To sell or lease land so acquired for uses in accordance with the redevelopment plan; or
“(5) To accomplish a combination of the foregoing to carry out a redevelopment plan.”

In September of 1981, the Birmingham city council, by resolution, approved and adopted a “redevelopment plan” for Block 60 in downtown Birmingham. That resolution designated Block 60 as a blighted area and provided that all real property of Block 60 was to be acquired by purchase or condemnation, cleared, and redeveloped for office, residential, and retail use.

At about the same time, the city council passed another resolution authorizing the mayor to enter an agreement for the City with a developer for the redevelopment of Block 60. That agreement, in turn, provided that the developer would use its best efforts to acquire by purchase all of the real property in Block 60. If, however, the developer were to fail in this endeavor by a deadline of March 30, 1982, the contract went on to provide that the City, upon notice from the developer of his failure to purchase all of the land of Block 60, would acquire by purchase or condemnation all remaining property in Block 60. Further, if the City could not purchase the remaining land within 60 days of receipt of the developer’s notice, the City would be required, by the contract, to proceed with condemnation prosecutions.

In October of 1981, Appellants filed for a declaratory judgment and damages, claiming that Appellees had acted arbitrarily and capriciously in determining that Block 60 was blighted and that Appellants were denied a meaningful opportunity to be heard prior to the declaration that Block 60 was blighted, thus denying them due process of law. Appellants further alleged that Block 60 is not blighted. The relief sought in the complaint was a declaration that Block 60 is not blighted; that Appellees acted arbitrarily and capriciously in determining that Block 60 is blighted; that the resolution designating Block 60 as a blighted area is void; and that the contract between the City and the developer of Block 60 is void or illegal and of no force.

Appellees filed a motion to dismiss for failure to state a claim and to eliminate certain defendants. As to the individual defendants, the trial court held:

“1 The declaration of Block 60 ... as a blighted area was a legislative act. (Housing Authority of Roosevelt City v. Nunn, 292 Ala. 60, 288 So.2d 775 (1974)). The Court finds from the various authorities cited by the defendants that the members of the City Council and the Mayor are not individually liable for acts done in their legislative capacity. It is the opinion of the Court that the holding in the case of Jackson v. The City of Florence, 194 [294] Ala. 592, 320 So.2d 68 (1975), does not change this principle.
“Based on the above, it is therefore, ORDERED, ADJUDGED, AND DECREED by the Court as follows:
“ONE: The Motion to Dismiss the members of the City Council and Mayor Richard Arrington, Jr., as individuals is granted.”

Pursuant to the court’s Rule 54(b), A.R. C.P., order, plaintiffs bring this appeal. We affirm.

We have been most careful in posturing the issue presented here in restricted terms. Because this appeal is before us after the entry of an order pursuant to ARCP 54(b), we may not address issues still pending in the trial court.

The issue on appeal, then, is the narrow question of whether the members of a city council and the mayor of the city, in their respective individual capacities, are entitled to absolute and unqualified immunity from personal liability in the performance of their duties in the consideration and adoption of a resolution pursuant to statutory authority for that action.

Individual liability of a public officer for injuries resulting from his tortious conduct and a municipality’s immunity from suit are principles addressed by this Court as recently as February 5,1982, in two cases released that day: DeStafney v. The University of Alabama, 413 So.2d 391 (Ala.1982); and Rich v. City of Mobile, 410 So.2d 385 (Ala. 1982). See, also, Bell v. Chisom [MS. July 16, 1982] (Ala.1982).

In DeStafney, an employee of a day care center operated by the University placed a child on a piece of playground equipment from which the child fell and suffered severe injuries. On rehearing, this Court held that “the defense of sovereign immunity afforded by Ala.Const., 1901, § 14, to the University of Alabama and its President, Dr. Mathews, does not extend to [the] employee whose alleged tortious act is the basis of the claim.” DeStafney, 413 So.2d at 392. (Emphasis supplied.) The DeStaf-ney Court went on to state that the tort liability rule for public officials and employees of Restatement (Second) of Torts, § 895D, Public Officers (1974), is consistent with Alabama’s case law development in the area of “substantive immunity.” That section of the Restatement provides:

“(1) Except as provided in this Section a public officer is not immune from tort liability.
“(2) A public officer acting within the general scope of his authority is immune from tort liability for an act or omission involving the exercise of a judicial or legislative function.
“(3) A public officer acting within the general scope of his authority is not subject to tort liability for an administrative act or omission if
“(a) he is immune because he is engaged in the exercise of a discretionary function,
“(b) he is immune because he is privileged and does not exceed or abuse the privilege, or
“(c) his conduct was not tortious because he was not negligent in the performance of his responsibility.”

In Rich, the Court was faced with the question of whether to impose liability upon a municipality for damages resulting from its agent’s negligent inspection, or negligent failure to inspect. While recognizing a municipality’s general liability for the negligence of its employees acting within the line and scope of their employment (Jackson v. The City of Florence, supra; Code 1975, § 11-47-190), we nevertheless upheld municipal immunity in Rich.

The Rich Court held that the public policy considerations of a city’s paramount responsibility to provide for the public safety, health, and general welfare, and the individual building contractor’s primary responsibility for proper construction and inspection (as opposed to the inferential reliance that can be placed on the municipality’s inspector’s report), outweighed the reasons for the imposition of liability on the municipality. This exception to the general rule of liability, however, is only to be applied in “those narrow areas of governmental activities essential to the well-being of the governed, where the imposition of liability can be reasonably calculated to materially thwart the City’s legitimate efforts to provide such public services.” Rich, 410 So.2d at 387.

It is readily apparent, then, that liability is imposed upon a municipality pursuant to statute, or upon its employees pursuant to common law, in those cases where there has been some tortious conduct resulting in injury or where the agent of the municipality was not involved in one of those activities narrowly construed as being within the range of those services “essential to the well-being of the governed.” This appeal does not fall into either of those categories. We are concerned here with the privilege of executing one’s legislative function without fear of prosecution.

Appellants claim that the city council, in adopting the resolution declaring Block 60 to be blighted, did not perform a legislative function because the action did not take the ultimate form of an ordinance. In support of this allegation, Appellants call our attention to the case of Rushing v. City of Georgiana, 374 So.2d 253 (Ala.1979).

In Rushing, a city employee brought an action against the city to recover “disability” salary or compensation which had been approved by the council’s passing of a motion. Although this Court held that the motion was ineffective, the opinion has a rather narrow application and is inapposite to the instant facts. In Rushing, despite a lengthy discussion of the traditional conflict in the definitions and uses of the terms “motion,” “resolution,” and “ordinance,” the city council’s action was held to be without effect because a specific statute (§ 11-43-8) requires that compensation for city employees, if not previously fixed by law, be fixed by ordinance. This Court expressly narrowed the effect of the Rushing decision by stating:

“We hold that authority to pay this type of compensation to employees of cities or towns must be found in an ordinance and not merely a motion or resolution.” (Emphasis supplied.) Rushing, 374 So.2d at 255.

We find, however, that § 11-45-1 provides:

“Municipal corporations may from time to time adopt ordinances and resolutions not inconsistent with the laws of the state to carry into effect or discharge the power and duties conferred by the applicable provisions of this title and any other applicable provisions of law and to provide for the safety, preserve the health, promote the prosperity and improve the morals, order, comfort and convenience of the inhabitants of the municipality, and may enforce obedience to such ordinances.”

We find further, that Alabama case law, consistent with this statutory mandate, permits the enactment of laws by ordinance or resolution in the absence of a statutory requirement for a specific mode of enactment. Tucker v. City of Robertsdale, 406 So.2d 886 (Ala.1981). See, also, McQuillen, Municipal Corporations, Vol. 5 (3rd ed., 1981), § 15.06.

The statute whereby the city council and mayor were empowered to act in the instant case, § 24-2-1, et seq., does not require a specific mode of enacting the laws by which redevelopment or renewal projects are initiated.

Additionally, the case of Housing Authority of Roosevelt City v. Nunn, 292 Ala. 60, 288 So.2d 775 (1974), held:

“The general rule seems to be that a finding by an appropriate body under the urban renewal and redevelopment laws that an area is a slum or blighted area is legislative in character and must be upheld by the court unless it is shown that such finding is a result of arbitrary and capricious action or was induced by fraud or bad faith. Blankenship v. City of Decatur, 269 Ala. 670, 115 So.2d 459 (1959), and cases cited therein.
“From the record it is obvious that the housing Authority determined that the area met the statutory definition for a neighborhood development project .... ” Housing Authority of Roosevelt City v. Nunn, 292 Ala. at 61, 62, 288 So.2d 775.

Because we find 1) that the statutory authority for the initiation of a redevelopment project does not require the enactment of a particular form of legislation; and 2) that the city council and mayor were clearly executing their legislative functions, we hold that the trial judge properly dismissed the city council members and the mayor, in their individual capacities, as defendants in the pending action.

We adopt, as consistent with our holding, the public policy considerations discussed in Gorman Towers v. Bogoslavsky, 626 F.2d 607 (8th Cir. 1980):

“Indeed, the nature of municipal government may make the need to quell a legislator’s fear of personal retribution particularly compelling.
“Because municipal legislators are closer to their constituents than either their state or federal counterparts, they are, perhaps, the most vulnerable to and least able to defend lawsuits caused by the passage of legislation. Particularly in the area of land use, where decisions may have an immediate quantifiable impact on both the value and development of property, local legislators should be free to act solely for the public good without the spector of personal liability with the passage of each zoning ordinance.” Gorman Towers, 626 F.2d at 612.

The judgment of the trial court, therefore, is affirmed.

AFFIRMED.

TORBERT, C. J., and FAULKNER, AL-MON, SHORES, EMBRY, BEATTY and ADAMS, JJ., concur.

      . For an excellent discussion of the foundations and historic background of the privilege, see Tenny v. Brandhove, 341 U.S. 367, 71 S.Ct. 783, 95 L.Ed. 1019 (1951).