author: SWIFT, Judge.

text:
    Melvin L. BALTZAR, et al., Plaintiffs-Appellants, v. MISSOURI PACIFIC RAILROAD, et al., Defendants-Appellees.
    No. 8515.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 10, 1981.

      Gravel, Robertson & Brady, Dee D. Drell, Alexandria, for plaintiffs-appellants.

      Hudson, Potts & Bernstein, B. Roy Liuz-za, Monroe, for defendants-appellees.
    Before DOMENGEAUX, SWIFT and YELVERTON, JJ.

       Judge Henry L. Yelverton, Fourteenth Judicial District Court, Parish of Calcasieu, participated as Judge ad hoc in this decision.

   SWIFT, Judge.

This is a tort suit in which the plaintiffs, Melvin L. Baltzar and his daughter, Sherry Baltzar, seek to recover damages from the defendants, Missouri Pacific Railroad Company, Texas & Pacific Railway Company and Wilfred L. Maglothin, for personal injuries and property loss which they sustained in a car-train collision. After trial on the merits, the judge found no negligence on the part of the railroad or its employees and that the accident was caused by Mr. Balt-zar. Judgment was therefore rendered in favor of defendants. After plaintiffs’ motion for a new trial was denied, they took this appeal. We affirm.

On July 27, 1974, Baltzar was driving his automobile in a westerly direction crossing the Missouri Pacific tracks in Glenmora, Louisiana, accompanied by his daughter, Sherry. As the vehicle crossed the tracks, it was struck by a train engine owned hnd operated by the Missouri Pacific Railroad Company which was traveling towards the north. Sherry Baltzar was injured to some extent and Melvin Baltzar sustained serious injuries.

The plaintiffs contend that the trial court erred in concluding that the railroad company was not negligent, asserting they established the following items of negligence: (1) The train was speeding; (2) The engineer did not sound a warning of the approach of the train; and (3) The flasher lights at the crossing did not function.

As to speed, the defendants presented the testimony of the engineer, Wilfred L. Ma-glothin, who said that the speed recorder on the train showed it was going 30 miles per hour. Also, the Glenmora Town Marshal, James 0. Sharp, testified that he heard the train, drove along parallel to it for the purpose of clocking its speed and determined the train was traveling less than the speed limit of 35 miles per hour. As opposed to this, plaintiff presented only the testimony of his nephew, Craig L. Baltzar, who was of the opinion that the train was going 36 to 38 miles per hour.

In regard to whether the whistle was blown, the town marshal testified that he was attracted to the train because he heard the train whistle and that the whistle was sounded continuously from a quarter of a mile up to the moment of impact. There was also testimony to the same effect from three other defense witnesses.

The defendants produced several witnesses who testified that Mr. Welch, an off-duty employee of the railroad company stated that when he heard the train approaching he positioned himself to check it for hot boxes and distinctly recalled that the flashers were operating properly when the Balt-zar vehicle approached the tracks. Rev. Jasper Wilson, a motorist, testified that the flasher lights were working when he arrived immediately after the impact. Also, three of the Missouri Pacific’s employees on the train and the town marshal said they noticed that the flasher or flashers were blinking properly. Additionally, of significance is that these lights were checked on July 24, 1974 (three days before the accident) and were again inspected on July 29, 1974 (two days after the accident). They functioned properly on both inspections.

Despite some testimony to the contrary by plaintiffs’ witness, there is ample support in the record for the trial judge’s findings that the train was not traveling at an excessive rate of speed, that its whistle was blown according to regulations and that both sets of warning lights were fully operational. Such factual determinations of a trial court will not be disturbed on appeal unless a review of the record reveals that the decision of the trial court is manifestly erroneous or clearly wrong. Canter v. Koehring Company, 283 So.2d 716 (La.1973); Arceneaux v. Domingue, 365 So.2d 1330 (La.1979). We certainly do find this to be the case in this suit. Instead, we reach the same conclusion as the lower court, that the cause of the accident was plaintiff’s negligent attempt to cross the railroad track in the face of a plainly visible freight train while its whistle was blowing and the crossing warning red lights were flashing.

The plaintiffs also contend the trial court erred in denying their motion to reopen the case for the purpose of submitting the deposition of a newly discovered witness. After judgment the plaintiffs made the same request in a motion for a new trial. It was likewise denied.

The motions set forth that approximately six years after the accident the plaintiff’s wife met a person who claimed to have been an eyewitness, but they contain no allegation in regard to the facts to which this witness would testify.

The law is well settled that one seeking to reopen a case on the grounds of newly discovered evidence must allege and prove that the evidence could not have been discovered prior to trial through the exercise of due diligence. Commercial Credit Corp. v. Nolan, 385 So.2d 1246 (La.App. 3 Cir. 1980); Jessen v. Jessen, 386 So.2d 953 (La.App. 3 Cir. 1980). Also, for a motion for a new trial to be granted on the ground of newly discovered evidence the mover has the burden of showing that the new evidence would tend to change the result of the first trial. Cable v. Cazayon, 351 So.2d 797 (La.App. 1 Cir. 1977). In Louisiana the decision to hold open or reopen a case for the production of additional evidence is within the sound discretion of the trial judge and his decision will not be disturbed unless abused. Gauthier v. Helmerich and Payne Drilling, 401 So.2d 692 (La.App. 3 Cir. 1981); Harrison v. South Central Bell Telephone Co., 390 So.2d 219 (La.App. 3 Cir. 1980), writ denied 396 So.2d 900 (La.1981).

We are unable to find an abuse of discretion by the trial judge in refusing to reopen the case under these circumstances.

The plaintiffs further contend the trial court erred in allowing the defendants to rehabilitate the testimony of a witness who had been impeached by the plaintiffs with a contradictory statement. We disagree.

At trial Mr. James Gore testified he was sitting on the right side of the caboose when the car was struck and that he checked the flashers and saw they were blinking after the accident. Plaintiff’s attorney then brought out that the witness had stated in his prior deposition that he was seated on the left side of the train and had not checked the flashers. The witness contended that he was mistaken in his deposition. Later, over the plaintiff’s objection, the trial court allowed the defendants’ attorney to introduce another statement given by Mr. Gore two days after the accident which corresponded to his testimony on these subjects at the trial.

The prior statement was properly admitted. Such statements may be received into evidence to corroborate testimony made at trial after such testimony has been assailed as to a particular fact. LSA-R.S. 15:496; and State v. St. Amand, 274 So.2d 179 (La.1973).

The plaintiff also contends that the trial court erred in refusing to allow witnesses to testify as to other instances when the flashers had not functioned properly, such evidence being offered to rebut the testimony of defendants’ expert. The matter of admission of rebuttal evidence is largely within the discretion of the trial judge. Lea v. Baumann Surgical Supplies, Inc., 321 So.2d 844 (La.App. 1 Cir. 1975), writ denied 325 So.2d 279; see also LSA-C. C.P. Articles 1631 and 1632. Aside from the relevancy of the testimony, we do not find that the judge abused his discretion in this instance.

For the above reasons, the judgment of the district court is affirmed. The costs of this appeal are assessed to plaintiffs-appellants.

AFFIRMED.


source: Caselaw Access Project

author: KLIEBERT, Judge.

license: Public Domain

text:
    Harvey ROLLINS v. FORD MOTOR COMPANY, et al.
    No. 5-192.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 7, 1981.
    Gregory Avery, Nelkin & Avery, New Orleans, for plaintiff-appellant.
    Lloyd C. Melancon, McLoughlin, Barran-ger, Provosty & Melancon, New Orleans, for defendants.
    Before SAMUEL, BOUTALL and KLIE-BERT, JJ.
   ON THE MOTION TO DISMISS

KLIEBERT, Judge.

This matter came up on a motion to dismiss the appeal on the grounds the record was not timely lodged in this Court. The return date was originally set as November 1, 1981. No extension of the date was sought or granted. Mover cites Hingle v. The Aetna Casualty and Surety Company, 306 So.2d 477 (La.App.1975) and LSA-C. C.P. Article 2161 as authority for the dismissal.

Code of Civil Procedure Articles 2125.1 and 2161 specifically provide that an appeal cannot be dismissed for any error or defect not imputable to the appellant. Here, mover does not allege or show the matter complained of, failure to lodge the record on or before the last return date, is imputable to the appellant. Further, the case mover relies on, Hingle v. Aetna Casualty & Surety Company, 306 So.2d 477, is not applicable. In that case, handed down before the 1976 amendment to the pertinent codal article (C.C.P. Art. 2125.1) which gave jurisdiction to the trial court to dismiss the appeal where the costs were not paid timely, the costs were not timely paid and this was clearly imputable to the appellant. Accordingly, the motion to dismiss is denied.


text:
    HATTIESBURG REALTY COMPANY v. MISSISSIPPI STATE HIGHWAY COMMISSION, Pine Belt Land Company and Mrs. Terry Anderson Currie, et al.
    No. 52917.
    Supreme Court of Mississippi.
    Nov. 4, 1981.
    As modified Dec. 9, 1981.

      Wallace R. Gunn, Hattiesburg, Gerald, Brand, Watters, Cox & Hemleben, Martha Gerald, Jackson, for Hattiesburg Realty.
    J.B. Van Slyke, Jr., George G. Currie, Jr., Gray, Montague & Pittman, Frank D. Montague, Jr., Hattiesburg, for Currie, et al. and Cloverleaf Mall.
    Milton Schlesinger, Hattiesburg, for Pine Belt Land Co.
    Pope & Pope, Moran M. Pope, Jr., Hat-tiesburg, Bill Allain, Atty. Gen., by Frank E. Shanahan, Jr., Asst. Atty. Gen., Jackson, for Highway Commission.
    Before ROBERTSON, P.J., and BROOM and HAWKINS, JJ.
   ROBERTSON, Presiding Justice, for the Court:

Hattiesburg Realty Company appeals from a decree of the Chancery Court of Forrest County, dismissing its original and first and second amended bills of complaint against Mississippi State Highway Commission, Pine Belt Land Company, Mrs. Terry Anderson Currie, Edward Alexander Cur-rie, Jr., Overton A. Currie, Daniel McMahon Currie, and Cloverleaf Mall, Ltd., to confirm title to Lots 9, 10, 11 and 12, Block 6, West End Addition to the City of Hatties-burg, Mississippi.

Defendant Pine Belt Land Company and Defendants the Curries, et al, cross-appeal from a dismissal of their respective cross-bills in which they each prayed for confirmation of title to the said lots.

The final decree confirmed fee simple title to said lots in the Mississippi State Highway Commission and canceled of record “any and all purported conveyances from and after October 5, 1940, thereby causing each and every such instrument to be set aside and held for naught as same relates to the title of Mississippi State Highway Commission from and after said date of October 5, 1940.”

In 1940 the State Highway Commission determined that it was in the public interest to improve U.S. Highways 49 and 11, south of Hattiesburg, for the traveling public. This would be accomplished by 4-lane-ing U.S. Highways 49 and 11 and constructing a cloverleaf interchange at the intersection of U.S. Highways 49 and 11. Among the right-of-way easements acquired was one from the heirs of Emma Tuttle. The warranty deed from the heirs of Mrs. Tuttle was executed on October 5,1940, and granted unto the State Highway Commission “for right-of-way purposes”:

Lots 9, 10, 11 and 12 in Block 6, in the D.M. Gatlins West End Addition to Hat-tiesburg, Mississippi.

World War II intervened, and finally in 1947 the improvement of U.S. Highways 49 and 11 and the construction of the cloverleaf interchange were completed. A large shopping center and many business establishments were constructed and developed around this eloverleaf interchange. Later a service road was constructed paralleling the ramp approach in the northeast quadrant of the interchange. While no part of the 4 Tuttle lots was used in the roadbed for the northeast ramp or service road, these lots have been continuously used since 1947 by the Highway Commission as a buffer zone between the service road and the shopping center. A paved four-lane entrance and exit road was constructed through the middle of this property connecting the northeast quadrant service road with the Cloverleaf Mall parking area. Two large concrete drainage culverts were constructed on the Tuttle lots. The Commission, since 1947, has continuously used these lots for drainage purposes and has regularly mowed, cleaned up, pruned trees and otherwise maintained and preserved the scenic beauty of these lots. They continue to be used as a buffer zone for the safety of the traveling public.

The numerous assignments of error can, in our opinion, be safely reduced to these eight:

I.The chancellor erred in holding the deed from the heirs of Emma Tuttle was and is a valid deed without any reverter clause or other such restriction.
II.The chancellor erred in holding the commission, after obtaining statutory rights to acquire fee simple title, acquired fee simple title to the property by adverse possession under color of title.
III. The chancellor erred in finding the commission had used the property uninterruptedly and continuously for a period of time in excess of 35 years and such use had been within that contemplated by the laws of the State of Mississippi and that the term “highway” in its legal sense includes not only the roadway itself but the entire right-of-way as well.
IV. The chancellor erred in not adjudicating the rights of the parties with regard to Huston Avenue, Washington Street, and the alley in Block 6 of West End Addition, and the oil, gas and minerals.
V.The chancellor erred in holding the commission was immune from suits for willful trespass under the doctrine, of sovereign immunity.
VI.The chancellor erred in finding that Hattiesburg Realty’s and Pine Belt’s claims were barred by the statute of limitations.
VII.The chancellor erred in finding that the proof was insufficient to establish adverse possession for the statutory period by the Curries prior to the October 5, 1940, Tuttle deed to the commission, and that the proof was also insufficient to establish the Curries’ title to the property by adverse possession since October 5, 1940.
VIII.The chancellor erred in ruling that the city and county tax sales of the property on September 15, 1941, for 1940 advalorem taxes were void and that any liens for taxes on the property for the year 1940 were extinguished when the commission purchased the property for right-of-way purposes on October 5, 1940.

I.

Appellant contends that the chancellor erred in holding that the October 5, 1940, deed from the heirs of Emma Tuttle was and is a valid deed without any reverter clause or other such restriction. The warranty deed from the heirs of Mrs. Tuttle was executed on October 5,1940, and granted unto the State Highway Commission “for right-of-way purposes”:

Lots 9, 10, 11 and 12 in Block 6, in the D. M. Gatlins West End Addition to Hatties-burg, Mississippi.

Mississippi Code of 1930 Annotated, section 4998, which was in effect when the Tuttle deed was executed on October 5, 1940, provided in part:

“That the state highway commission shall have complete control and supervision, with full power and authority to locate, relocate, widen, alter, change, straighten, construct, or reconstruct any and all roads on the state highway system as herein defined, and shall have full and complete authority for the making of all contracts, surveys, plans, specifications, and estimates for the location, laying out, widening, straightening, altering, changing, constructing, reconstructing and maintaing and securing rights-of-way therefor of any and all such highways, and to authorize the employees of the state highway department to enter upon private property for such purposes.” (Emphasis added).

This section was construed by this Court as giving the commission authority to acquire only a right-of-way or easement in property for highway purposes. Nicholson v. Board of Mississippi Levee Com’rs, et al., 203 Miss. 71, 33 So.2d 604 (1948) and Whitworth v. Mississippi State Highway Commission, 203 Miss. 94, 33 So.2d 612 (1948).

The Tuttle deed itself conveys these four lots to the State Highway Commission “for right-of-way purposes” only.

In Dantzler v. Mississippi State Highway Commission, 190 Miss. 137, 199 So. 367 (1941), this Court stated:

“It is a grave error to suppose that a condemnor of a right of way for a public road takes any such an interest as the entire fee in the land. In Campbell v. Covington County, 161 Miss. 374, 378, 137 So. 111, 112, this court said: ‘And, whether the right of way is acquired by condemnation or prescription, the title to the soil, and all the profits thereof consistent with the existence of the easement, remain in the original owner.” 190 Miss, at 148, 199 So. at 370.

If and when the Commission decides to abandon its right-of-way easement over all or any portion of the Tuttle lots, or declares all or any portion of the Tuttle lots surplus under applicable law, the disposition of the whole or such portion would be governed and controlled by applicable Mississippi law. We have noted MCA §§ 65-1-59 and 65-1-75 (Supp.1981) and MCA 65-1-123 (1972), but express no opinion as to the applicability or non-applicability of these statutes to any possible future factual situation that might develop.

II.

Appellant’s next contention is that the chancellor erred in holding that, after legislation was passed granting the Commission the right to acquire fee simple title to lands needed by it, the Commission acquired fee simple title to the four Tuttle lots by adverse possession under color of title.

Mississippi General Laws, Chapter 332, section 8 (1948), granted statutory authority to the Commission to acquire fee simple title to lands needed by it. This law in and of itself did not, ipso facto, vest fee simple title in the Commission to lands in which the Commission had only acquired easement rights for right-of-way purposes. If, after the passage of this legislation, the Commission should determine that fee simple title is now necessary in order for it to carry out its duties and responsibilities, then it would be necessary for the Commission to acquire fee simple title either by further purchase, gift, or condemnation proceedings against the property owner.

In Williams v. Patterson, et al, 198 Miss. 120, 21 So.2d 477 (1945), this Court said:

“It is further argued that appellant by himself and through his predecessors in title acquired title to this land by adverse possession of more than fifty years, and cites an Illinois case, Illinois Central R. Co. v. Noyes, 252 Ill. 178, 96 N.E. 830, where the Illinois Court held that if a railroad company condemned land for a right of way and paid therefor, it could obtain a fee-simple title thereto by adverse possession for the statutory period. However, the general rule is thus announced in 2 C.J.S. Adverse Possession § 89, p. 646. ‘Claim or use of an easement is consistent with, rather than hostile to, the title of another to the fee, and possession attributable to the easement will not be regarded as adverse to the fee title of another unless and until there is notice of a hostile claim to the fee.’ ” 198 Miss, at 130, 21 So.2d at 480.
See also St. Regis Pulp & Paper Corp. v. Floyd, 238 So.2d 740 (Miss.1970).

The proof at trial was that the Commission had maintained the Tuttle lots as a portion of its right-of-way for drainage, traffic safety, beautification, and future needs. No part of these lots has ever been used for any purpose inconsistent with their use for right-of-way purposes only. No hostile flag has ever been run up; no hostile claim has ever been made. In the absence of any notice of a hostile claim, adverse possession cannot be asserted against the owner of the fee.

The chancellor erred in holding that the Commission had acquired fee simple title to the Tuttle lots by adverse possession under color of title.

III.

Appellant contends that the chancellor erred in finding that the Commission had used the property continuously and uninterruptedly for over 35 years for highway purposes, and that the term “highway” includes not only the roadway itself but the entire right-of-way as well.

The term “highway” or “road” was defined in Mississippi Code of 1930 Annotated, section 5021, in this way:

“When used in this chapter, unless the context indicates otherwise, the term ‘highway’ or ‘road’ includes rights of way, bridge and drainage structures, signs, guard rails and other structures made in connection with such highway or road;

This definition has been brought forward unchanged and is presently found in MCA § 65-1-1 (1972).

In Reed v. Mississippi State Highway Commission, 260 So.2d 184 (Miss.1972), this Court said:

“The determination of the amount of right-of-way necessary for any given highway is within the discretion of the State Highway Commission under policies that it may adopt from time to time, unless the Legislature limits this power.
“The general rule is stated in 26 Am. Jur.2d Eminent Domain Section 114 (1966) which is as follows:
‘In the absence of a statute controlling the amount of land that may be taken for a public purpose, the grantee of the power of eminent domain may exercise a large discretion in such respect. This discretion as to the amount is not reviewable by the courts, unless, possibly, where there has been a gross abuse or manifest fraud. (26 Am. Jur.2d Eminent Domain at p. 772).’
“A further statement of the general rule is found in 29A C.J.S. Eminent Domain § 92 (1965) as follows:
‘Prospective needs. The amount of land which may be taken by a grantee of the power of eminent domain need not be restricted to the needs of the immediate future. The grantee may condemn lands sufficient to provide for not only its present but also its prospective necessities, if it is not more than may in good faith be presumed necessary for future use within a reasonable time. The determination of the grantee will not be interfered with by the courts except in a clear case of abuse of discretion. . . . (29A C.J.S. Eminent Domain at pp. 386, 387).’ ” (Emphasis added).
260 So.2d at 186-87.
See also Pearl River Valley Water Supply District v. Brown, 248 Miss. 4, 156 So.2d 572 (1963).

In the recent case of Robert E. Ratliff Company, Inc. v. Mississippi State Highway Commission, 400 So.2d 1211 (Miss.1981), this Court said:

“It would be novel indeed to require courts to oversee an administrative body charged with maintaining public highways and streets and chop off outer portions of a right-of-way simply because of some claim the right-of-way was not being used to its full width. We adhere to the rule set forth in 39A C.J.S. Highways, § 131(b), p. 851:
‘If a highway is legally laid out and established, the mere fact that the public does not use it to its entire width will not of itself constitute an abandonment of any portion thereof. The rule is the same whether or not the road is fenced by the adjoining landowners. Encroachments on a highway continually used cannot be legalized by mere lapse of time; the limited use will not lessen the right of the public to use the entire width of the road whenever the increased travel and exigencies of the public render this desirable.’ ”

400 So.2d at 1214.

The undisputed proof was that the Commission had continuously maintained the Tuttle lots for highway purposes at least since 1950 by regularly mowing, picking up trash and limbs, and regularly cleaning out culverts installed for drainage purposes.

The ever broadening duties and responsibilities of the Commission to provide for the safety and convenience of the traveling public are made crystal clear in this recent enactment of the Legislature:

“The Mississippi State Highway Commission is hereby authorized to acquire by gift, purchase, or otherwise, and to have the state highway department improve and maintain strips of land necessary for the restoration, preservation and enhancement of scenic beauty adjacent to the state highway rights-of-way. The commission may acquire and have the state highway department develop publicly owned and controlled rest and recreation areas and sanitary and other facilities within or adjacent to the highway right-of-way reasonably necessary to accommodate the traveling public.”

MCA Section 65-1-51 (1981 Supp.).

The chancellor was correct in holding that the Commission had used the Tuttle lots continuously and uninterruptedly for in excess of 35 years for highway purposes, as contemplated by the laws of Mississippi, and that the term “highway” includes not only the roadway itself but also the entire right-of-way as well.

IV.

Appellant next contends that the chancellor erred in not adjudicating the rights of the parties in Washington Street, Huston Avenue, and the alley in Block 6 of West End Addition, as well as the oil, gas and mineral rights.

Lots 9 through 12, Block 6, West End Addition, in and over which the Commission has an easement for right-of-way purposes, are bounded on the north by Washington Street and on the west by Huston Avenue. On the south these lots are bounded by an alley through the center of block 6. Although these streets and the alley were dedicated to the public use when the plat was officially approved and placed of record, they had not been laid out and opened up at the time the Commission acquired an easement in and over these lots for right-of-way purposes.

When the Highway Commission included unopened Washington Street and Huston Avenue within its highway right-of-way, it preempted the use of these streets by the City of Hattiesburg and by the citizens thereof for street purposes. If and when the Commission legally abandons all or any portion of its right-of-way in Washington Street or Huston Avenue, the disposition of such abandoned portion would be governed and controlled by applicable Mississippi law. We have noted MCA section 65-1 — 75 (Supp.1981), but express no opinion as to the applicability or non-applicability of this statute to any possible future factual situation that might develop.

Inasmuch as the Commission only acquired an easement for right-of-way purposes in and over the surface of the four Tuttle lots, the ownership of the oil, gas and minerals remained in the owners of the fee and their successors in title, either by deed or valid tax sale.

The chancellor was correct in not adjudicating the rights of the parties in Washington Street and Huston Avenue.

Y.

The next contention made by the appellant is that the chancellor erred in holding that the Commission was immune from suit for willful trespass under the doctrine of sovereign immunity. There is no merit in this contention.

In French v. Pearl River Valley Water Supply District, 394 So.2d 1385 (Miss.1981), we declined to abolish the doctrine of governmental immunity, restating the general rule that a general grant of statutory authority to sue a governmental subdivision or agency does not create any liability, and suit may be maintained thereunder only for such liability as is authorized by statute, expressly or by necessary implication.

The chancellor was correct in holding the Commission immune from suits for willful trespass under the doctrine of sovereign immunity.

VI.

Hattiesburg Realty Company and Pine Belt Land Company contend that the chancellor erred in finding that their claims were barred by the statute of limitations.

In view of our finding that the Commission only used the Tuttle lots consistent with its easement rights for right-of-way purposes and, therefore, acquired no further title or right by adverse possession, the chancellor erred in finding that the claims of Hattiesburg Realty and Pine Belt were barred by the statute of limitations.

VII.

The Curries contend that their proof was sufficient to establish title in them by adverse possession for the 10-year statutory period before the October 5, 1940, Tuttle deed to the Commission, and that if that proof were insufficient then they have established title in them by virtue of their adverse possession since October 5, 1940.

There is no merit in either of these contentions. On December 30, 1939, the late Alexander Currie, the predecessor in title to all of the Curries, conveyed to the State Highway Commission for right-of-way purposes all of Block 6 except Lot 7 and Lots 9-12, West End Addition, and other properties. By thus excepting Lots 9 through 12, Block 6, West End Addition, the grantor, who died in 1947, acknowledged that he did not own Lots 9 through 12 and, therefore, was making no claim to them.

The evidence of adverse possession after 1940 (and there was none as to the easement rights of the Commission) was very weak, and any acts testified to were sporadic and not continuous. Since the testimony was disputed and thus was a factual question to be determined by the chancellor, we cannot say that he abused his discretion in finding that the Curries failed to establish a claim to the property by adverse possession after October 5, 1940.

VIII.

Pine Belt Land Company contends that the chancellor erred in ruling that the city and county tax sales of the four Tuttle lots, on September 15, 1941, for the 1940 city, county and state advalorem taxes, were void, and that any liens for such taxes for the year 1940 were extinguished when the Commission purchased the property on October 5, 1940.

In answering this assignment of error, we need only refer to the fact that the only right acquired by the Commission in the Tuttle deed of October 5, 1940, was an easement for right-of-way purposes and state again that all other rights and title remained in the Tuttle heirs and were subject to sale by the City of Hattiesburg and Forrest County for non-payment of the 1940 city, county and state advalorem taxes.

The chancellor’s only reason for finding that these tax sales were void was because of the Tuttle deed of October 5,1940, to the Commission. These tax sales of September 15, 1941, of course, would not affect the easement rights granted to the Commission almost a year before, but these sales would be valid as to any other rights not purchased or acquired from the land owners, and, therefore, still retained by them. See City of Laurel v. Weems, 100 Miss. 335, 56 So. 451 (1911) and Whitworth v. Miss. State Hwy. Com’n, supra.

So the chancellor was in error in ruling that these tax sales were void and that the liens for 1940 city, county and state advalo-rem taxes were extinguished when the Commission purchased from the Tuttle heirs an easement for right-of-way purposes on October 5, 1940.

The tax sales of September 15, 1941, for the unpaid 1940 city, county and state adva-lorem taxes being valid, subsequent tax deeds issued pursuant thereto conveyed to the grantees therein all rights and title remaining in the Tuttle heirs.

Pine Belt Land Company, through mesne conveyances, having acquired all rights and title acquired by the purchasers at the tax sales of September 15, 1941, is now the owner of fee simple title to Lots 9 through 12, Block 6, West End Addition to the City of Hattiesburg, Mississippi, subject only to the easement rights for right-of-way purposes purchased by the State Highway Commission from the Tuttle heirs on October 5, 1940.

The decree of the lower court is reversed insofar as it:

1.Dismissed the First Amended Cross-bill of Pine Belt Land Company;

2. Found that the Commission had acquired fee simple title to the four Tuttle lots by adverse possession under color of title and thus confirmed title in the Mississippi State Highway Commission, and can-celled of record any and all purported conveyances from and after October 5, 1940, insofar as such conveyances related to the title of the Commission; and

3. Found that the City, and County and State tax sales of the four lots in question on September 15, 1941, for 1940 advalorem taxes thereon were void and of no force and effect.

Pine Belt Land Company is found to be the owner of fee simple title to the four Tuttle lots (the lands in dispute), subject only to the easement for right-of-way purposes in and over the surface of these four lots acquired by the Commission from the Tuttle heirs by deed dated October 5, 1940.

In all other respects, not inconsistent with this opinion, the decree of the lower court is affirmed.

Court costs both in the lower court and this Court will be assessed: One-fourth against Hattiesburg Realty Company; One-fourth against the State Highway Commission; One-fourth against Pine Belt Land Company; and One-fourth against the Curries and Cloverleaf Mall, Ltd.

AFFIRMED IN PART, REVERSED IN PART AND RENDERED.

PATTERSON, C. J., SMITH, P. J., and SUGG, WALKER, BROOM, LEE, BOWLING and HAWKINS, JJ., concur.


author: ADAMS, Justice.

text:
    William Douglas TERRELL v. CITY OF BESSEMER, Alabama, Hanks Ambulance Service, Inc., Hank Tyler; William Ray Baugh; and Rickey T. Pugh.
    79-702.
    Supreme Court of Alabama.
    Aug. 27, 1981.
    Rehearing Denied Nov. 6, 1981.

      Stephen D. Heninger of Hare, Wynn, Ne-well & Newton, Birmingham, for appellant.
    J. Howard McEniry, Jr., of McEniry, McEniry & McEniry, Bessemer, for appellee City of Bessemer, Alabama.
    James B. Fierce, Jr. and James R. Clifton of Stone, Patton & Fierce, Bessemer, for appellees Hanks Ambulance Service, Inc., Hank Tyler d/b/a Hanks Ambulance, Hank Tyler, William Ray Baugh, and Rickey Thomas Pugh.
   ADAMS, Justice.

This is an appeal from a judgment adverse to the plaintiff, William Douglas Terrell, by the Circuit Court of Jefferson County, Bessemer Division. The trial court judge granted defendants’ motions to dismiss pursuant to Rule 12 (b)(6), A.R.C.P. Defendants moved for dismissal on the ground that plaintiff had pending prior actions arising out of the same facts in the United States District Court for the Northern District of Alabama. Plaintiff’s pending federal district court actions, defendants contend, violate Code 1975, § 6-5-440, which provides that a plaintiff may not split his cause of action against a defendant. The parties are in agreement that the same facts give rise to both the state and federal actions commenced by the plaintiff.

The dispositive issue in this appeal is whether the existence of prior pending actions in United States District Court for an alleged violation of federal law, bars subsequent common law tort actions instituted against the same defendants in state court, when the United States District Court has declined to entertain pendent jurisdiction over plaintiff’s common law tort claims.

In his complaint, plaintiff alleged that while he was a patron in a restaurant, he suffered seizures and convulsions which caused him to fall violently to the floor. Plaintiff further alleged that the officers of the Bessemer police department and Hank’s Ambulance Service failed to recognize his medical condition. Terrell complained that he was wrongfully arrested for public intoxication and placed in the drunk tank at the Bessemer city jail, where he remained unconscious and comatose for seven or eight hours. Plaintiff claimed to have suffered a blood clot on his brain, and subsequent brain damage, as the result of not having prompt medical attention.

Terrell brought an action against defendants in the United States District Court for the Northern District of Alabama under 42 U.S.C. § 1983, claiming that by individual action and conspiracy defendants subjected him to cruel and unusual punishment in violation of the 8th and 14th Amendments to the United States Constitution. Plaintiff also pleaded common law counts for negligence, wantonness, false arrest, false imprisonment, and breach of implied contract against defendants. Upon defendants’ motions, the United States District Court dismissed plaintiff’s common law counts, declining to entertain pendent jurisdiction over them on the basis that the different legal principles and possible defenses involved in the federal and common law counts would create jury confusion. Thereafter, Terrell brought action in state court for his common law theories of recovery.

In state court, defendants moved to dismiss Terrell’s complaint on the ground that plaintiff’s prior pending action in the United States District Court violated Code 1975, § 6-5 — 440. The trial judge granted defendants’ motions.

We note at the outset that Code 1975, § 6-5-440, states:

No plaintiff is entitled to prosecute two actions in the courts of this state at the same time for the same cause and against the same party. In such a case, the defendant may require the plaintiff to elect which he will prosecute, if commenced simultaneously, and the pendency of the former is a good defense to the latter if commenced at different times.

We have previously held that the term “courts of this state” includes the United States District Courts in Alabama. Fegaro v. South Central Bell, 287 Ala. 407, 252 So.2d 66 (1971); Interstate Chemical Corporation v. Home Guano Co., 199 Ala. 583, 75 So. 166 (1917); Orman v. Lane, 130 Ala. 305, 30 So. 441 (1901). Thus, plaintiff is prosecuting two actions against the same parties in the courts of this state. On this point, there can be no dispute.

The parties, however, vigorously dispute the meaning of “cause of action.” The dispute is understandable. The meaning of “cause of action” changes with the context in which it is used. Parker v. Fies & Sons, 243 Ala. 348, 10 So.2d 13 (1942); 1 Am. Jur.2d Actions § 1 (1962). We believe that defendants are correct in their contention that plaintiff has but one cause of action. In Sessions v. Jack Cole Co., 276 Ala. 10 at 12, 158 So.2d 652 at 654 (1963), this court, quoting with approval from Chappell v. Boykin, 41 Ala.App. 137, 140, 127 So.2d 636, 638 (1960), cert. denied 271 Ala. 697, 127 So.2d 641 (1961), interpreting the rule against splitting one’s cause of action, observed that “a ‘cause of action’ grows out of the wrongful act, and not the various forms of damages that may flow from the single wrongful act.” This court stated also that application of this rule is guided by “whether a judgment in one suit would be res judicata of the other.” Sessions, 276 Ala. at 12, 158 So.2d at 654.

Plaintiff’s state and federal actions arise from the same alleged fact situation. Although plaintiff’s state court action was instituted on different theories of recovery, these theories are not different causes of action in the context of the rule against splitting a cause of action. A cause of action may give rise to one more theories of recovery. It has been recognized that where a single wrong leads to an action under state law and leads to an action under federal law, there is but one wrong and one cause of action. Norman Tobacco & Candy Co. v. Gillette Safety Razor Co., 295 F.2d 362 (5th Cir. 1961).

However, we believe that plaintiff should be allowed to pursue his common law theories of recovery in state court. The prohibition against splitting a cause of action is for the purpose of avoiding vexatious litigation and a multiplicity of lawsuits. Johnson v. Brown-Service Insurance Co., 293 Ala. 549, 307 So.2d 518 (1974); Baggett v. Allen, 276 Ala. 423, 163 So.2d 209 (1964); Sessions v. Jack Cole Co., supra. It is the opinion of this court that the case at bar necessitates an exception to this rule.

Decisions involving the applicability of res judicata frequently state that a prior action is a bar to issues that were litigated, or could have been litigated. Educators’ Investment Corp. of Alabama v. Autrey, 383 So.2d 536 (Ala.1980); Wheeler v. First Alabama Bank of Birmingham, 364 So.2d 1190 (Ala.1978); McGruder v. B & L Construction Co., 331 So.2d 257 (Ala.1976); Gulf American Fire and Casualty Co. v. Johnson, 282 Ala. 73, 209 So.2d 212 (1968); Reid v. Singer Sewing Machine Co., 218 Ala. 498, 119 So. 229 (1928). It is clear that Terrell could not have litigated his common law theories in the United States District Court. Although he attempted to do so, that court declined to entertain pendent jurisdiction over plaintiff’s common law counts. Thus, we cannot say that Terrell could have litigated his common law theories. The plaintiff, under the facts of this appeal, should be afforded an opportunity to pursue his alleged common law theories of recovery in state court.

In Century 21 Preferred Properties, Inc. v. Alabama Real Estate Commission, 401 So.2d 764 (Ala.1981), we noted an exception to the doctrine of res judicata in situations where a federal court declines to entertain a claim based on state law. On this point, the American Law Institute has said:

A given claim may find support in theories or grounds arising from both state and federal law. When the plaintiff brings an action on the claim in a court, either state or federal, in which there is no jurisdictional obstacle to his advancing both theories or grounds, but he presents only one of them, and judgment is entered with respect to it, he may not maintain a second action in which he tenders the other theory or ground. If however, the court in the first action would clearly not have had jurisdiction to entertain the omitted theory or ground (or, having jurisdiction, would clearly have declined to exercise it as a matter of discretion), then a second action in a competent court presenting the omitted theory or ground should be held not precluded. [Restatement (Second) of Judgments, Explanatory Notes § 61.1, comment e at 160 (Tent. Draft No. 5, 1978) ].

The above cited comment, in our opinion, states the preferable rule, and we hereby adopt it by our decision today.

Defendants correctly argue that plaintiff could have avoided the instant splitting of his cause of action by having brought his claims under 42 U.S.C. § 1983, along with his common law theories of recovery, in state court. Although defendants are correct, the plaintiff clearly had no obligation to bring his federal claim in a state court. Admittedly, plaintiff was faced with a difficult decision. It has not been decided by either the United States Supreme Court, or by this court, whether a state court must accept an action under 42 U.S.C. § 1983. Maine v. Thiboutot, 448 U.S. 1, 100 S.Ct. 2502, 65 L.Ed.2d 555 (1980); Martinez v. California, 444 U.S. 277, 100 S.Ct. 553, 62 L.Ed.2d 481 (1980); Ingram v. Moody, 382 So.2d 522 (Ala.1980). On the other hand, by bringing action in United States District Court, the plaintiff was faced with the uncertainty that that court would, in its discretion, decline to entertain pendent jurisdiction over his common law claims. For the purpose of avoiding such uncertainty when a plaintiff selects a forum, we hold this day that henceforth, courts of this state must accept jurisdiction over claims brought under 42 U.S.C. § 1983, if a § 1983 plaintiff selects a state court as his forum.

In this jurisdiction the rule is that a motion to dismiss (formerly a plea in abatement) will be granted where defendant moves to dismiss plaintiff’s second action for the same cause, even though plaintiff dismissed his first action after the motion to dismiss was filed. Ford v. Bowden, 243 Ala. 334, 9 So.2d 906 (1942). However, in light of our holding today, we will allow Terrell, if he elects, to proceed with his claims in the United States District Court and, also pursue his actions against defendants in state court. Alternatively, if he elects to do so, the plaintiff may dismiss his § 1983 action pending in the United States District Court and combine that claim with the state court action. Of course, plaintiff can have but one monetary recovery in any event in either court. The order of the trial court is, therefore, reversed and remanded and with directions.

REVERSED AND REMANDED WITH DIRECTIONS.

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

TORBERT, C. J., and ALMON, J., concur in result.


author: JONES, Justice. MADDOX, Justice

text:
    James A. CARTER v. Dan WILEY.
    80-265.
    Supreme Court of Alabama.
    Sept. 11, 1981.
    Rehearing Denied Nov. 6, 1981.

      Irvin J. Langford of Howell, Johnston, Langford, Finkbohner & Lawler, Charles S. White-Spunner, Jr., and M. A. Marsal of Seale, Marsal & Seale, Mobile, for appellant.
    Richard D. Horne and James E. Atchison of Hess, Atchison & Horne, Mobile, for ap-pellee.
   JONES, Justice.

This appeal is from a decree of the trial court granting Appellee’s motion to dismiss Appellant’s election contest on the grounds of Appellant’s noncompliance with Code 1975, § 17 — 15-21, requiring election contestants to give to adverse parties notice of the nature of the evidence contestant expects to show at the trial of the case.

Though somewhat complex, the factual background of this case, when reduced to its simplest form, may be stated as follows:

Dan Wiley, Democratic candidate for Mobile County Commissioner in District Two, defeated Republican candidate James A. Carter by a margin of eight votes in the November 4, 1980, general election. Carter’s motions for a writ of prohibition to stay the certification of the election results and for a writ of mandamus to compel a recanvassing of the ballots were denied and Wiley was certified as the winner of the election. Carter then filed a statement of election contest pursuant to the provisions of Code 1975, § 17-15-1, et seq., stating as the basis for his contest three grounds:

“(a) Malconduct, fraud or corruption on the part of [election officials] which mal-conduct, fraud or corruption if corrected would show that ‘Contestant’ received a majority of the legal votes cast in said election for said office.
“(b) ... if the illegal votes counted for ‘Contestee’ were deducted from the total votes received by said ‘Contestee’ that ‘Contestant’ would have a majority of the legal votes cast in said election for said office and should be declared the winner of said office.
“(c) ... if the rejected legal votes had been counted, ‘Contestant’ would have had a majority of the legal votes cast in said election for said office and should be declared the winner of said office.”

Carter’s complaint specified the various offenses which he contends support his stated grounds:

“Contestant avers that the malconduct, fraud or corruption hereinabove charged in grounds (a) of Part Four of this election contest consisted of the following wrongful and unlawful acts by election officials:
“(a) Said election officials committed the following wrongful and unlawful acts in connection with the absentee voting and the counting of absentee ballots, which wrongful and unlawful acts changed the result of the election:
“(1) The election officials in charge of the absentee voting rejected certain legal ballots which were cast by members of the armed forces for James A. Carter because they were not notarized, when in fact they were sworn to in front of a proper military officer and should have been allowed; . . .
“(2) That in preparing the envelopes for absentee voting as set forth in the Code of Alabama 1975, Sections 17-10-1 through 17-10-20 but more particularly as set out in Sections 17-10-6 through 17-10-9 . . . the election officials furnished the affidavit required by Section 17-10-8 in primary elections, which affidavit is inapplicable to the general election and said election officials disallowed or rejected absentee votes because the voter had not marked which party he was a member of, which was an improper rejection of a legal ballot; .. .
“(3) Said election officials in charge of counting the absentee ballots committed errors in tabulating the ballots cast and gave to Dan Wiley phantom ballots which were not based on legal votes or any votes at all, but which were counted and added into Dan Wiley’s total votes as if he had received legal votes in place of the non-existent or phantom votes; . . .
“(4) Said election officials in charge of counting the absentee ballots committed errors in tabulating the ballots cast in that they did not give to James A. Carter the proper total of legal votes cast for him, and in fact, gave some of the total legal votes cast for Carter to Wiley, and in addition miscounted the total number of legal votes cast for Carter as to make Carter’s total vote as arrived at by the said election officials innaccurate and below the actual legal vote received by Carter; . . .
“(5) That the election officials who tabulated the absentee ballots when a discrepancy arose in the tally sheets which were tabulated by more than one person [instead] of rechecking to determine the correct tally the election officials merely divided the difference in half and Petitioner avers that this method also caused Candidate Wiley to receive more legal votes than he actually received and caused Candidate Carter to receive less legal votes than he actually received;
“(6) Said election officials rejected legal absentee ballots cast for Candidate Carter received by such officials after the election; . . .
“(b) Said election officials committed the following wrongful and unlawful acts in regard to tabulating the results from the voting machines and in tabulating challenged ballots, which wrongful and unlawful acts changed the result of the election.
“(1) The election officials in reading the computer print-outs misread the numbers contained thereon by reading numbers that actually were sevens (7’s) as if said numbers were ones (l’s) which caused ‘Contestant’ to receive six (6) less legal votes than he was entitled to in each instance when a seven (7) appeared and there was more than one such instance where a seven (7) in the count for ‘Contestant’ was misread, and said election officials misread the digit eight (8) as if it were a six (6), which caused ‘Contestant’ to receive two (2) less legal votes than he was entitled to, and this happened on more than one instance; and said election officials misread the digit nine (9) as if it were a four (4), which caused ‘Contestant’ to receive five (5) less votes than he was entitled to, and this also happened on more than one instance;
“(2) The election officials failed to properly count the challenged ballots in that in tabulating the challenged ballots cast they gave to Dan Wiley phantom ballots which were not based on legal votes or any votes at all, ... and said officials committed errors in tabulating the challenged ballots cast in that they did not give to James A. Carter the proper total of legal challenged ballots cast for him, and in fact gave some of the total legal votes cast for Carter to Wiley, and in addition miscounted the total number of legal votes cast for Carter so as to make Carter’s total vote as arrived at by the said election officials inaccurate and below the actual vote received by Carter;
“(3) Said election officials .counted into Dan Wiley’s total votes certain challenged ballots which had not been ruled as legal or illegal votes, and which were in fact illegal votes. . . . ”

Carter concludes, as to each of. the alleged instances of malconduct, that, except for such acts of malconduct, he would have been declared the winner in the election.

Before Contestee Dan Wiley filed an answer to Contestant Carter’s complaint, Carter noticed the taking of the depositions of seven non-party election officials, served a subpoena duces tecum with each notice and filed a motion to inspect all election records and documents. With his answer, Wiley filed a motion to dismiss the contest. The motion to inspect and the motion to dismiss were denied, the election officials were granted protective orders, and, upon Wiley’s motion, Carter was ordered to comply with the notice requirement of § 17-15-21, which states:

No testimony must be received of any illegal votes or of the rejection of any legal votes in any contested election commenced under the provisions of this article unless the party complaining thereof has given to the adverse party notice in writing of the number of illegal votes and by whom given and for whom given, and at what precinct or voting place cast, or the number of legal votes rejected, and by whom offered, and at what precinct or voting place cast, which he expects to prove on the trial. Such notice must be served personally or left at the residence or usual place of business of the adverse party at least 10 days before the taking of testimony in reference to such votes..

Carter filed a pleading styled “Notice of Nature of the Evidence” (and a later supplement thereto), which purported to comply with the terms of § 17-15-21, stating in pertinent part:

Contestant states that there is hereto attached and marked Exhibit “A”, . .., the list of legal votes cast in the County Commission District Two General Election of Tuesday, November 4, 1980, which were rejected, which said list gives the name of the person voting whose legal vote was rejected .... Contestant avers that all of said votes on said list were cast for Contestant James A. Carter, and all of which legal votes were rejected, and all of which votes were cast by Absentee Ballots delivered to the Courthouse . . ., that said list gives the precinct and voting place wherein each voter would have voted had he or she not voted by Absentee Ballot. If these legal votes rejected are included in the total vote received by Contestant, then Contestant will have received the highest number of legal votes cast in said election.
“The total number of said legal votes is 1,522.
“Applications have heretofore been made to the Honorable John L. Moore, Judge of Probate of Mobile County, Alabama, pursuant to Section 17-15 — 4 of the 1975 Code of Alabama, to deliver to the Contestant or his attorney a certified copy of the poll lists of challenged ballots cast in said election . . ., and upon said Judge of Probate’s complying with said provision of Alabama law, Contestant will furnish to the Contestee the names, voting districts, and number of votes thereof which will be offered as proof on the trial of said cause as having been illegally cast for Contestee Wiley... . ”

Carter also re-noticed the taking of the depositions of the election officials. Wiley moved for an order striking Carter’s pleading on the grounds of noncompliance with the mandates of § 17-15-21. At a January 16, 1981, hearing on this and two other pending motions, the trial court issued an order affirming the earlier protective orders, granting Carter’s motion for a continuance and granting Wiley’s motion to strike, a portion of which order states:

“1. The Court finds that the pleading styled ‘Notice of the Nature of Evidence’ and the supplement are not in compliance with Section 17 — 15—21 and are due to be striken. The Court has concluded that the 1,531 names listed by the Contestant were virtually all the persons who requested absentee ballots (as admitted by both parties). As made clear by the official canvass, at least 478 persons voted for Contestee, Dan Wiley, and could not have voted for the Contestant, James Carter, as asserted in his pleadings. Additionally, 583 absentee ballots were cast for the Contestant, James Carter, and counted. This, also, is contrary to the pleading of the Contestant. No evidence was offered as to whether or not the remaining ballots were ever returned. The Court further finds that the Contestant’s pleading, if not in bad faith, is a shotgun attempt to subvert the particularized notice required by Section 17-15-21.
“2. With reference to that portion of the pleading which makes reference to the applications heretofore made to the Judge of Probate of Mobile County, Alabama, the Court finds that the said pleading does not meet the requirements of Section 17-15-21, 1975 Code of Alabama, in that it does not give any numbers of illegal votes cast or by whom given or for whom [given], at which precinct or voting place cast, or the number of legal votes rejected, and by whom offered, and at what precinct or voting place cast. It is, at best, merely speculative.”

Wiley again moved to dismiss the contest and filed motions in opposition to the continuance and for a rehearing on the granting of the continuance, citing as his grounds a portion of § 17-15-29, which states:

“The Contest is triable by the Court without the intervention of a jury and must be heard and tried in precedence to all other cases, civil or criminal, standing for trial in the court.”

At the January 21, 1981, hearing on all pending motions, the trial court offered Carter a continuance so that he might comply with § 17-15-21 as previously ordered. When Carter declined, the trial court entered its final order, the concluding paragraphs of which state:

“13. The Court further finds that the Contestant, despite several postponements has failed and/or refused to comply with an order of this Court to supply the Contestee with the notice of the nature of the evidence as required by § 17-15-21. Contestant, on December 31, 1980, and in supplement on January 5, 1981, did file a pleading styled Notice of Nature of Evidence [but this Court] found the pleading spurious and in specific violation of both the letter and spirit of the notice required by § 17-15-21, Code of Alabama, 1975.
“14. Upon consideration of the Contestant’s motion for a continuance the Court assumed that the pleading was to gain time within which to supply the Court with further evidence of the alleged wrongdoing of the Contestee. Upon a careful reading of the motion and consideration that seven days have passed the Contestant has further failed to supply evidence as required by the Court’s order of December 11, 1980, the Court is of the opinion that continuance of this matter would be in vain. The Court sees no reason to delay matters further and does now consider the motion of the Contestee to dismiss.
“15. This Court, guided by the decision of the Alabama Supreme Court in Turner v. Cooper, 347 So.2d 1339, finds that Contestant has failed and/or refused to comply with an order of this Court and that such failure, under Rule 41(b) Alabama Rules of Civil Procedure, is sufficient cause to dismiss. Going further it appears that some fifty five (55) days having passed since the filing of this suit, Contestant is unable and will be unable to supply the Contestee with the nature of his evidence as required by § 17-15-21.
“16. Having granted the Contestant several postponements and a general continuance, it appears that further delay and interlocutory appeal of the matter would not be in the interests of judicial economy nor would it best serve the interest of the voters of Mobile County who are entitled to a speedy solution of contested elections. Contestant admits this conclusion in his motion for a continuance where he asks for additional time solely for the purpose of intermediate review. “17. This Court, further guided by the decision of Turner v. Cooper need not await a certain trial date when that result is obvious in view of the Contestant’s failure to comply with the ten day requirement of § 17-15-21, Code of Alabama, 1975.”

Contestant, in oral argument before this Court, concedes his noncompliance with the notice requirements of § 17-15-21 with respect to the various allegations of challenged, illegally received or rejected, and phantom ballots in his statement of election contest. As to his charges of incorrect totals resulting from the malconduct, fraud or corruption of the election officials, however, Contestant maintains that literal compliance with the statutory requisites was impossible because specific votes (or voters), as to their legality vel non, were not the bases of those particular allegations.

This Court agrees with Contestant that the evidence contemplated by the literal terms of § 17-15-21 can not be reconciled with the particular grounds of § 17-15-1(1). Although § 17-15-1(1) expressly provides for contests on the grounds of “malconduct, fraud or corruption on the part of any inspector, clerk, marker, returning officer, board of supervisors or other person,” once contest is filed stating malconduct as its grounds, the contestant is then apparently prevented from proceeding with his case because his inability to comply with the demands of § 17-15-21 prohibits his taking of testimony necessary to prove his claims.

While the language of § 17-15-21 does not explicitly mandate a method by which notice of the nature of the evidence a contest based on malconduct of the election officials must be given to the con-testee, the statute implicitly contemplates that notice of a sort applicable to the grounds asserted be required. If this were not true, a statute permitting malconduct as a grounds for a contest would be useless absent a means to proceed under the notice requirements of § 17-15-21. Moreover, the lack of a remedy to enforce the statutory right of contest would be an obvious violation of a contestant’s due process rights. in

As stated above, the provisions of § 17-15-21, requiring a contestant to supply the contestee with the number of legal votes rejected or illegal votes counted which contestant expects to prove on the trial, can not be read so literally as to exclude the right of a contestant to charge and prove fraud on the part of election officials. In establishing that proof, however, a contestant, via his notice of the nature of evidence, must reconcile his allegations of malconduct with his notice pleading (as required by § 17-15-21) in such a manner that the contestee is put on notice that those allegations of malconduct are matters which contestant seeks to prove. For aught that appears in his notice of the nature of evidence, Contestant Carter had abandoned his allegations of malconduct. In that notice pleading, Contestant pursues only those allegations of his complaint with respect to the issues of rejection of legal, and acceptance of illegal, votes. His notice does not, however, comport with the contention upon which he now proceeds: the alleged malcon-duct of the election officials in tabulating the votes and in tampering with the posted totals.

Although we agree with Contestant that the broad scope of § 17-15-1 permits a challenge of fraud in the tabulation of the vote totals, as well as other instances of official malconduct, his attempt to follow the statutory mandates of § 17-15-21 put him at variance with his allegations of fraud on the part of those officials. Where, as here, a contestant draws his fraud allegations as charging a particular species of fraud and contends that such allegations are authorized under the statute, he is left with no choice but to conform his formal notice of the nature of evidence to his charging averments or suffer defeat in his effort to discover evidentiary support for such allegations.

We hold that the trial court did not err in finding that Contestant “failed and/or refused to comply with an order [of the trial court] to supply the Contestee with notice of the nature of the evidence as required by § 17-15-21.”

AFFIRMED.

FAULKNER, ALMON, SHORES, EM-BRY, BEATTY and ADAMS, JJ., concur.

TORBERT, C. J., and MADDOX, J., concur specially.

MADDOX, Justice

(concurring specially).

I concur in that portion of the opinion which reads as follows:

This Court agrees with Contestant that the evidence contemplated by the literal terms of § 17-15-21 cannot be reconciled with the particular grounds of § 17-15-1(1). Although § 17-15-1(1) expressly provides for contest on the grounds of “malconduct, fraud or corruption on the part of any inspector, clerk, marker, returning officer, board of supervisors or other person,” once contest is filed stating malconduct as its grounds, the contestant is then apparently prevented from proceeding with his case because his inability to comply with the demands of § 17-15-21 prohibits his taking of testimony necessary to prove his claims.
While the language of § 17-15-21 does not explicitly mandate a method by which notice of the nature of the evidence in a contest based on malconduct of the election officials must be given to the contes-tee, the statute implicitly contemplates that notice of a sort applicable to the grounds asserted be required. If this were not true, a statute permitting mal-conduct as a grounds for a contest would be useless absent a means to proceed under the notice requirements of § 17-15-21. Moreover, the lack of a remedy to enforce the statutory right of contest would be an obvious violation of a contestant’s due process rights.

In this ease, contestant appénded to his brief on appeal a copy of a newspaper article which indicated that a vote total posted by poll watchers on the night of the election differed from the official canvas, and that the difference would have changed the result of the election, if the total posted by the poll workers was correct.

Counsel for contestant, at oral argument, stated that he, if given a chance to take the testimony of election officials, would be able to prove his allegations of which absentee ballots were illegally counted or rejected. At oral argument, counsel" also alluded to the statements made in the newspaper article; however, contestant, in his “Notice of Nature of the Evidence,” never included the statements contained in the newspaper account. In this ease, I agree with the result of the holding because I do not believe that the contestant legally complied with the requirements of § 17-15-21, and therefore, was not permitted to take testimony to prove his allegations of malcon-duct.

Because the contestant failed to set out in his “Notice of Nature of the Evidence” sufficient facts to show wherein and how the election officials were guilty of malcon-duct, I concur that the judgment of dismissal was appropriate. Had the. contestant here stated in his “Notice of the Nature of the Evidence” the fact that he would call witnesses who would testify to facts similar to those contained in the newspaper article, I would conclude that he had substantially complied with the requirements of § 17-15-21, and would have then been entitled to take the testimony of the election officials. In short, the contestant must have based his allegations of malconduct upon some evidence, but in his “Notice of Nature of the Evidence,” he did not set out substantially what the evidence was; therefore, he failed to comply with the requirements of law.

TORBERT, C. J., concurs.

      . The newspaper article, in part, reads:
      Irregularities in the way absentee ballots were counted for the general election Tuesday cast a shadow of doubt on the accuracy of the final tally for the down-to-the-wire County Commission District 2 race.
      ***** S»!
      About 2,200 absentee ballots were cast. They have not been individually recounted to certify the totals announced late Tuesday night.
      A probate court official this morning told the Mobile Press the court does not have the authority to recount them.
      In all, 693 absentee votes were cast for Carter and 570 for Wiley, according to the tabulations posted by poll workers Tuesday night.
      THE PROCEDURE used for the initial count was to divide all 2,200 absentee ballots into 10 groups. Each group was called a box, and a six-person team of poll workers was assigned to count and record each vote by hand.
      All of the teams did not employ the same method for tabulating the ballots in their boxes, but the most commonly used method was as follows:
      While one team member read the names a particular voter selected, another member watched over his shoulder to ensure accuracy.
      The purpose for twin tally sheets, election officials explain, was to double-check the totals for each candidate.
      But the team for Box 1 was given only one tally sheet, and had no way to double-check its results without recounting each ballot. The team, which finished its task first among all 10 absentee boxes, did not double-check by recounting.
      WHEN ASKED about the discrepancy Tuesday evening, an election official said the Box 1 team performed its task conscientiously — as did all the teams — it may have slipped without realizing it.
      The need for twin tallies became obvious as other teams finished and began comparing figures. The Box 3 team, for example, found a number of discrepancies in its tallies for various candidates. In each case, the team went back through every ballot and recounted votes before issuing a final tally.
      The counting was laborious process, and some workers complained they were tiring. One jokingly said her eyes were ‘crossing.’ Others commented they would dodge the job if asked again.
      The last team finished shortly after 11:30 p.m., having spent five and a half hours counting ballots.
      NOT ALL OF the teams recounted to achieve accuracy after finding discrepancies between figures on their tally sheets. At least two teams simply split the difference between divergent figures and called that the official tally.
      Also, as the task stretched toward midnight, the members of some teams stopped double-checking each other as they read and recorded votes. In its final hour, for example, no member of the last team to finish looked over the reader’s shoulder to verify accuracy.
      Instead, while two team members recorded the votes called out, all four other team members separated the remaining ballots into four stacks and took turns calling.


author: EMBRY, Justice. TORBERT, Chief Justice

text:
    Mayer MITCHELL, et al. v. Ethel V. MOORE and Winn-Dixie Stores, et al.
    79-517.
    Supreme Court of Alabama.
    Sept. 18, 1981.
    Rehearing Denied Nov. 6, 1981.

      James J. Duffy, Jr., Carroll H. Sullivan, and Edward C. Greene of Inge, Twitty, Duffy & Prince, Mobile, for appellants.
    Norman E. Waldrop, Jr. and A. Danner Frazer, Jr. of Armbrecht, Jackson, DeMouy, Crowe, Holmes & Reeves, Mobile, for appel-lee Ethel V. Moore.
    Daniel A. Pike of Sintz, Pike, Campbell & Duke, Mobile, for appellee Winn-Dixie Louisiana, Inc.
   EMBRY, Justice.

This is what is commonly known as a slip and fall case. Mrs. Ethel V. Moore’s action for damages on account of personal injuries for negligence and wanton misconduct was submitted to the jury against Winn-Dixie Louisiana, Inc.; Mayer Mitchell, Abraham Mitchell, and W. A. Lubell, partners doing business under the name and style of M & L Realty; and the Mitchell Corporation. Winn-Dixie’s cross-claim against M & L was not, irregularly but not erroneously or improperly, submitted to the jury but, rather on post trial motion, judgment was entered upon it in favor of Winn-Dixie following a verdict in favor of Mrs. Moore against both those defendants in the amount of $75,000.

A fair summary of the facts shown in the record discloses that on 1 March 1978 Mrs. Moore tripped and fell at a jagged crack between the ramp and sidewalk as she was leaving a Winn-Dixie store located in a shopping center in Mobile, Alabama. The building was occupied, and a grocery business conducted therein, by Winn-Dixie under a lease with an entity to which we will simply refer as M & L. In that lease there was an indemnity clause whereby Winn-Dixie would be indemnified for any loss suffered by it because of defects in the condition of the premises.

Mrs. Moore’s injuries occurred in the vicinity of an asphalt ramp provided so that shopping carts might be pushed from the concrete sidewalk immediately adjacent to the store into the shopping center’s parking lot provided for use of the customers of all tenants of that shopping center.

There is evidence that at least one other person, previous to Mrs. Moore’s fall, tripped and fell at the crack at the same site. As to this fact, defendants stipulated they had notice. In the interval between the earlier fall and Mrs. Moore’s fall the landlord took no measures to repair or remedy the crack.

Regarding her damages, among other items, there is evidence that Mrs. Moore sustained a fractured left hip requiring surgery and has a permanent five to seven percent impairment of her left leg. A reasonably accurate statement of appellants’ contended errors is:

(1) Whether the trial court erred by permitting the witness Inez Sykes to testify;

(2) Whether there was error in the refusal to grant a requested continuance due to the absence of a subpoenaed witness;

(3) Whether evidence of medicare payments is admissible because they are not a collateral source;

(4) Whether the trial court erroneously charged the jury regarding the duty of care owed a business invitee by a landlord;

(5) Whether the verdict was contrary to the great weight of the evidence;

(6) Whether the damages were excessive, and

(7) Whether judgment was improperly entered in behalf of Winn-Dixie on its cross-claim?

Each issue will be treated in the order presented.

Appellants, the M & L group, first contend the trial court erroneously permitted plaintiff’s witness Inez Sykes to testify. They argue that her testimony was in blatant violation of the requirement of Rule 26(e)(1) & (2), ARCP, that a party supplement or amend answers to interrogatories as further information becomes available. The record shows that plaintiff failed to identify Ms. Sykes in response to defendants’ interrogatories requesting the identity of witnesses to be offered by the plaintiff at trial. The record, however, further shows that plaintiff originally learned of her identity through answers to interrogatories propounded to defendants. Plaintiff’s attorneys questioned her for the first time on Saturday, January 5, 1980, two days before trial. It was not until that time that the decision was made to call Ms. Sykes as a witness. It is true, if justified by the circumstances, a judge may properly require a party to disclose the names of all persons he intends to call as witnesses at trial, but a discovering party does not have the right to demand from an adverse party a list of all witnesses to be called at trial. Ex parte Dorsey Trailers, Inc., 397 So.2d 98 (Ala. 1981). The trial court concluded that under the circumstances, plaintiff had not knowingly concealed the identity of Ms. Sykes in violation of Rule 26(e). The decision as to whether to allow the testimony of Ms. Sykes was within the discretion of the trial court. See Erwin v. Sanders, 294 Ala. 649, 320 So.2d 662 (1975). We find no abuse of discretion in this regard.

Next, appellants contend reversible error occurred when the trial court refused to grant a continuance because of the absence of their subpoenaed witness Deputy Sheriff Ronald Emrich. The law is well settled in this jurisdiction that the grant or refusal of a continuance rests within the discretion of the trial court. Ex parte Driver, 258 Ala. 233, 62 So.2d 241 (1952). The trial court’s discretion, however, is not without limitations. In Driver, this court stated certain of those limitations as guidelines for determining whether the absence of a witness warrants a continuance. They may be fairly summarized as follows: It must be shown that the expected evidence will be material and competent; there must be the probability that the testimony can be obtained at a future date to which the cause may be continued or postponed; due diligence must have been exercised by the movant to secure the absent witness or evidence; the expected evidence must be credible and will probably affect the result of the trial; it must not be merely cumulative or in the nature of impeachment; and the motion for continuance must not be made merely for purposes of delay.

Appellants insist they were entitled to a continuance especially in view of the alleged materiality of the expected testimony and their due diligence in attempting to procure Emrich’s presence by compulsory process: subpoena and writ of attachment.

After careful review of the record we cannot say that the trial court overstepped the limits of its discretionary powers in this regard. The evidence is that Emrich’s testimony would have been merely cumulative. Moreover, a showing that compulsory process has been exhausted does not necessarily constitute a showing of due diligence. Each ease must be viewed in light of its peculiar circumstances. Although appellants were aware of the nature of Emrich’s employment in law enforcement, there was no showing of any attempt to depose him prior to his absence. Also, defendants put him “on call”; this one does at one’s peril. We find no abuse of discretion with regard to this matter.

Thirdly, appellants challenge the trial court’s ruling that Medicare payments fall within the collateral source rule. While this court has never directly addressed the applicability of the collateral source rule as regards Medicare payments, we find no error in the lower court’s ruling.

Our case law presently contains a statement of the general rule that the fact that the plaintiff received gratuitous medical care, continued salary or wage payments, proceeds from insurance policies, or welfare and pension benefits, will not be taken into account in computing damages. Gribble v. Cox, 349 So.2d 1141 (Ala. 1977). We now implement our rule by adding the following statement as enunciated by the Colorado Court of Appeals:

The collateral source doctrine . . . provides that damages recoverable for a wrong are not diminished because the injured party has been wholly or partially indemnified or compensated for his loss by insurance effected by him and to which the wrongdoer did not contribute. . . . Payments made for Medicare coverage are analogous to insurance payments, and the trial court properly found that defendants were not entitled to a reduction of damages based upon the proceeds of Medicare coverage. . . .

Powell v. Brady, 30 Colo.App. 406, 496 P.2d 328 (1972).

Appellant’s fourth contention involves the propriety of the instructions to the jury concerning the duty of care owed by a landowner to a business invitee. Appellants assert that the trial court’s charge placed a more stringent standard of care upon them than upon defendant Winn-Dix-ie. They contend that because they had reserved control over the parking lot and paved areas of the shopping center through their lease agreement with Winn-Dixie, Mrs. Moore occupied the same status, that of business invitee, as to them as she did to Winn-Dixie.

They further contend, however, that the trial court somehow distinguished the duty owed by them, from that owed by Winn-Dixie, on the basis of the lease agreement. As a result, appellants argue, the trial court imposed a higher duty of care upon them than the common law duty to keep the premises in a reasonably same condition for the use of invitees. The lease agreement did, in fact, impose a duty upon appellants to repair. The duty found in the lease, however, is no greater than the common law duty owed by a landlord to a business invitee: to keep the premises in a reasonably safe condition for use.

In the leading case of Mudd v. Gray, 200 Ala. 92, 75 So. 468 (1917), this court addressed a factually similar situation when defining a landlord’s common law duty:

. . . .[T]he plaintiff was injured on a stairway jointly owned and controlled by the defendants, and reserved by them for the use in common of the different tenants. Where such is the case, the authorities seem to be very generally agreed that it is the duty of the landlord to use reasonable care to keep in good repair and safe condition such reserved portions of the premises; and if he negligently fails to do so, and the third person on the premises, on the express or implied invitation of the lessee, is injured on account of such defective or unsafe condition, while exercising due care, the lessor is responsible therefor. . . .

Without quoting extensively from the record, we find that the trial judge properly instructed the jury about the duty of care all defendants owed plaintiff. The duty to repair stated in the lease was nothing more than a reiteration of the common law duty of a landlord to a business invitee. We find no reversible error in the court’s charge about this.

As their fifth issue, appellants raise the sufficiency of the evidence to support the verdict. The case went to the jury on a negligence and wanton count. The jury returned a general verdict. As stated earlier, the lease agreement between Winn-Dixie and M & L imposed upon M & L a duty to repair the common areas. The lease provides:

The Landlord shall, at its cost and expense, keep and maintain the common areas (including parking areas) in good condition and repair, and shall maintain the exterior of tenant’s store building, including the roof, gutter, downspouts, exterior painting, masonry walls, foundation and structural members, and the plumbing (including septic tank, if any) and wiring, of the store building in good condition and repair, and shall make any and all structural repairs to both the exterior and interior of said premises. If any portion of the common areas (including parking area) or any portion of the store building, which is the responsibility of the Landlord, shall at any time be in need of repair, Landlord will repair same immediately upon receipt of written notice from Tenant to do so. . . .

Appellants contend that because they never received written notice from Winn-Dixie they were not liable for a failure to repair. The evidence, however, establishes that Mitchell, the company employed by M & L to perform its management related duties involving the shopping center, sent a representative to the shopping center every three to four weeks to inspect the area and to perform routine inspections and maintenance. Testimony of the Mitchell supervisor is to the effect that any one of these inspections could reveal a condition of disrepair and if there was such a condition, then upon discovery of it the representative could order it repaired without receipt of any prior written notice from the tenant.

In view of this evidence, we find the trial court properly ruled that the purpose of the written notice requirement was to put the landlord on notice that a condition of disrepair existed and needed to be repaired. We further conclude that the trial court properly ruled, and instructed the jury, that there would be no reason for written notice if the landlord knew or should have known of the condition by reason of periodic inspections. Quite obviously the jury found favorably for Winn-Dixie on this point. There was ample evidence to support the verdict against appellants in this regard based upon the negligence count.

It is further contended that even if the evidence was sufficient to support a verdict based upon the negligence count, the record is totally devoid of any evidence of wanton misconduct on the part of the M & L defendants. They argue that because the verdict was general, and because there is no way to determine upon which count the verdict was based, they are entitled to either a judgment non obstante veredicto or a new trial. Again, we must disagree.

A careful review of the record shows that appellants had notice of another fall in the same location, before Mrs. Moore’s. In spite of this fact, there is no evidence that appellants ever attempted to investigate or remedy the defect causing the injury. This court has defined wantonness as the conscious doing of some act or the omission of some duty under knowledge of existing conditions, and conscious that from the doing of such act or omission of such duty, injury will likely or probably result. Kilcrease v. Harris, 288 Ala. 245, 259 So.2d 797 (1972). In light of the aforementioned, we conclude the evidence was sufficient to permit the jury to return a verdict upon the wanton count. We will not substitute our judgment of the sufficiency of the evidence for that of the jury and that of the trial court when it reviewed that evidence on post-judgment motion. There is no error in the record because the wanton count was submitted to the jury.

Appellants argue alternatively that in the event the verdict can be supported by the evidence, they are entitled to a new trial or remittitur because the damages awarded are excessive. The jury fixed damages at $75,000. While it is true that Mrs. Moore proved special damages of approximately $5,000, it is equally true, as is well settled, that punitive damages are recoverable when injuries are suffered because of another’s wantonness. Appellants’ argument on this point is, therefore, without merit.

Finally, appellants contest the entry of judgment for Winn-Dixie on its cross-claim for indemnity. Appellants argue they were entitled to judgment as a matter of law. Cross-claimant, Winn-Dixie, based its claim on the following provisions of its lease with M & L:

The Landlord at its sole cost and expense shall construct the shopping center, . . . together with all sidewalks, streets, entrance ways, malls, parking areas, service drives, driveways and related improvements, said improvements (excluding buildings) being sometimes hereinafter referred to as “common areas.” The Landlord, at its sole cost and expense, shall grade and surface with top quality materials all paved portions of the common areas (including parking area), and shall provide proper and adequate water drainage and lighting system and operations therefor and shall operate and maintain the same in good repair and usable condition for use by the patrons of the shopping center and the tenants and their employees, during the term of this lease and any extensions thereof. . . .
The Landlord shall, at its cost and ex-pensé, keep and maintain the common areas (including parking area) in good condition and repair ....
Tenant agrees to indemnify and save harmless the Landlord from any claim or loss by reason of an accident or damage to any person or property happening on or about the demised premises.
Likewise, Landlord shall indemnify and save harmless the Tenant from any claim or loss by reason of an accident or damage to any person or property happening on or about all common areas (including parking area) of the shopping center....

It is clear that Winn-Dixie based its cross-claim on M & L’s contractual obligation to maintain and repair the common areas.

M & L first contends that the contractual obligation to repair was conditioned upon receipt of written notice from the tenant; therefore, it says, because no written notice was ever received, no actionable breach occurred. We disposed of this contention when upholding the trial court’s ruling regarding the written notice requirement, supra.

M & L next asserts that the indemnity provision falls within the general rule in this state that a party may not contract •against the consequence of his own negligence, and, such a provision is unenforceable and void as against public policy. Alabama Great Southern Railroad Co. v. Sumter Plywood Corp., 359 So.2d 1140 (Ala.1978). In Sumter Plywood, a majority of this court stated:

. . . [T]his court has recognized an exception to the general rule. For example, the court has held exculpatory clauses and indemnity provisions valid, where the contract in question involved a lease or easement. . . .

Later, in Industrial Tile v. Stewart, 388 So.2d 171 (Ala.1980), it was stated:

. . . The Court has, for many years, held that as between private parties, indemnity contracts are enforceable if the contract clearly indicates an intention to indemnify against the consequences of the indemnitee’s negligence, and such provision was clearly understood by the indem-nitor, and there is not shown to be evidence of a disproportionate bargaining position in favor of the indemnitee. . . .
[I]f the parties knowingly, evenhandedly, and for valid consideration, intelligently enter into an agreement whereby one party agrees to indemnify the other, including indemnity against the indemni-tee’s own wrongs, if expressed in clear and unequivocal language, then such agreements will be upheld.

In the instant case, the indemnity provision was in a landlord-drafted lease agreement between private parties. The language of the provision clearly indicates an intention to indemnify. According to the plain language of the lease, the maintenance of the common areas is clearly the responsibility of the landlord. For the above stated reason, we hold that Winn-Dixie was entitled to judgment in its favor on its cross-claim.

The judgment of the trial court, in all respects, is due to be and is hereby affirmed.

AFFIRMED.

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

TORBERT, C. J., dissents.

TORBERT, Chief Justice

(dissenting).

I dissent. I am unpersuaded that the appellee in this case provided sufficient evidence to permit the jury to make a determination on both of the issues of wanton misconduct and negligence.

Alabama law provides that wantonness and negligence cannot exist in the same act or omission. Tombrello v. McGhee, 282 Ala. 408, 211 So.2d 900 (1968); Milford v. Tidwell, 276 Ala. 110, 159 So.2d 621 (1963); Thompson v. White, 274 Ala. 413, 149 So.2d 797 (1963); Napier v. State, 377 So.2d 1135 (Ala.Cr.App.1979), cert. denied, 377 So.2d 1138 (Ala.1979). In Thompson v. White, this Court clearly defined the law:

Wantonness and negligence cannot exist in the same act or omission, for the reason that wanton or willful misconduct implies mental action; whereas that fact is absent in mere negligence. Wantonness and negligence are hence necessarily distinct colorings of a wrong to another’s injury.

274 Ala. at 420, 149 So.2d 797.

In Alabama “wanton conduct” is defined as the committing of an act with reckless indifference to the consequences of the act, or, a failure or omission to do something with a reckless indifference to the consequences of the omission. The party must be conscious of his conduct and, even though he may have no actual intent to injure someone, be aware from his knowledge of the circumstances and conditions then existing, that his conduct would probably result in an injury to another. Roberts v. Brown, 384 So.2d 1047 (Ala.1980); W. T. Ratliff Co. v. Purvis, 292 Ala. 171, 291 So.2d 289 (1974); Tucker v. Cox, 282 Ala. 489, 213 So.2d 222 (1968); Hughes v. Southern Haulers, Inc., 379 So.2d 601 (Ala.Civ.App.1979).

As to the propriety of an award of punitive damages, this Court has held that such damages are not recoverable for simple negligence (upon which slip and fall cases are grounded). The only damages that can be recovered in a simple negligence case are compensatory damages. Fireman's Fund American Insurance Co. v. Coleman, 394 So.2d 334 (Ala.1980); Bradley v. Walker, 207 Ala. 701, 93 So. 634 (1922).

It is well settled that in every negligence action there are three essential elements that must be established to enable a plaintiff to recover. First, a duty must be owed by the defendant to the plaintiff. Second, there must be a breach of that duty. Third, an injury must have proximately resulted from that breach. Quillen v. Quillen, 388 So.2d 985 (Ala.1980); Elba Wood Products, Inc. v. Brackin, 356 So.2d 119 (Ala.1978). Here, there is no question that the defendant owed a duty of care to the plaintiff. Yet the extent of that duty was dependent upon the plaintiff’s status on the defendant’s property.

If the party was a licensee, then the duty owed to him is not to willfully or wantonly injure him, or not to negligently injure him after finding him in peril. McMullan v. Butler, 346 So.2d 950 (Ala.1977). Here, however, the plaintiff was not a licensee, but an invitee. The defendant-invitor thus had a duty to exercise reasonable care in maintaining its premises as used by the plaintiff-invitee, and to keep those premises in a reasonably safe condition. Yet the invitor is not the insurer of the safety of its invitees. Shaw v. Lipscomb, 380 So.2d 812 (Ala.1980); Foodtown Stores, Inc. v. Patterson, 282 Ala. 477, 213 So.2d 211 (1968); S. H. Kress & Co. v. Thompson, 267 Ala. 566, 103 So.2d 171 (1957). Thus, the invitor is liable only for its negligence in failing to exercise reasonable care in maintaining his premises. 267 Ala. at 569, 103 So.2d 171.

The majority’s decision to affirm the verdict on the wanton count relies upon prior notice to the appellants of another fall in the same location. This prior accident, however, occurred nearly two years before the instant accident and furnishes no inference that it resulted from some defective or dangerous condition or was anything other than an isolated slip and fall.

The only other possible evidence of knowledge of notice of some potentially dangerous condition came from Winn-Dix-ie’s store manager, Jack Hutchinson. Mr. Hutchinson testified that even though he was aware of a crack between the sidewalk and the ramp and considered the defect dangerous, at no time did he notify the appellant of the condition, either before or after the plaintiff’s accident.

At the very most, appellant’s notice of a prior fall should be construed as evidence of negligence and not of wantonness. In City of Birmingham v. Wright, 379 So.2d 1264 (Ala.1980), the plaintiff sued the city after falling and injuring herself because of a depression in a sidewalk. There the issue was whether the record contained a scintilla of evidence that the city had notice of the defect in the sidewalk. This Court found that a scintilla of evidence existed, tending to prove negligence — not wantonness. 379 So.2d at 1265-66. Similarly, any notice in the instant ease should tend to prove negligence and not wanton conduct.

In Schuler v. Nelson Weaver Companies, Inc., 270 Ala. 727, 121 So.2d 908 (1960), the facts were somewhat similar to those of the instant case. The plaintiff brought suit to recover for personal injuries sustained as a result of a fall down some steps at the rear of defendant’s building. There were two counts in the complaint: one charging negligence and one charging wantonness. The wanton count was submitted to the jury, but a new trial was granted which was affirmed on appeal. The evidence showed that there was no handrail on the steps, which were apparently about four-and-one-half feet high, and that they were constructed of a smooth, slick, concrete finish and were considerably slicker when wet. The injured plaintiff’s husband was an employee of the defendant. Significantly, plaintiff’s husband testified that he had informed the defendant’s manager that the steps were slick and that some corrective measure should be taken, but that no correction, however, was made. Another employee of defendant testified that she had slipped on the step but had not fallen. On the day of the accident, the plaintiff was injured while entering the building during a rain.

While the Court did not specifically address the issue of notice and the failure to take corrective action it held:

No case has been cited to us and we have found none where any court has held that evidence similar to that presented in this case was sufficient to go to the jury on a charge of wantonness.

270 Ala. at 730, 121 So.2d 908. The Court went on to say that no one had ever fallen on the steps as far as the record disclosed, and held that the absence of handrails on the stairs, when considered with the slipperiness of the stairs, was insufficient to show wanton conduct on the part of the defendant in the maintenance of the steps.

I believe that the holding of that case would likewise apply here and that no wanton misconduct claim can be sustained. For the foregoing reasons, I would reverse on the issue of submitting the claim based on wanton misconduct.

      . The transcript of the evidence shows that M & L stipulated it had notice of the prior fall when plaintiff sought to introduce M & L’s answers to interrogatories to that effect.