text:
    Julio R. VALDEZ v. EQUITABLE EQUIPMENT COMPANY, INC. and Employers National Insurance Company.
    No. 9889.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 13, 1980.

      Murray, Murray, Ellis, Braden & Landry, Romualdo Gonzalez, New Orleans, for plaintiff-appellant.
    Phelps, Dunbar, Marks, Claveire & Sims, Patrick E. O’Keefe and Esmond Phelps, II, New Orleans, for defendants-appellees.
    Before LEMMON, BOUTALL and BARRY, JJ.
   LEMMON, Judge.

The issue in this appeal by plaintiff from a judgment dismissing his suit for Louisiana workmen’s compensation benefits is whether plaintiff made a binding election to accept benefits under the Longshoremen’s and Harbor Workers’ Compensation Act (33 U.S.C. § 901 et seq.) so as to preclude a suit for recovery under the Louisiana Workmen’s Compensation Act (R.S. 23:1021 et seq.).

I

Defendants filed exceptions of no cause of action and lack of jurisdiction over the subject matter, asserting that the suit for state compensation benefits was precluded by his election to recover under the federal act. The trial court maintained the exception and dismissed the suit, and plaintiff appealed.

At oral argument the court pointed out that the petition (which did not mention the receipt of federal benefits) clearly stated a cause of action for state benefits and that the district court clearly had subject matter jurisdiction to adjudicate suits for state compensation benefits. However, since both counsel had argued the election of remedies issue in the trial court and since that court had apparently treated the proceeding as a motion for summary judgment, this court suggested it would be a waste of time to remand, the matter and reach the same result after the proper motion and affidavits were filed. Counsel agreed, and they subsequently filed a stipulation of facts, further stipulating that this court could treat this appeal, with the record thus supplemented, as one from a summary judgment.

II

The following facts were stipulated by the parties: On January 28, 1975 plaintiff sustained an injury to his foot while in the course of his employment with defendant. After returning to work, he sustained an on-the-job injury to his hand on May 4, 1976. Defendant paid plaintiff $4,438.31 in periodic compensation payments of $132.77 per week for temporary total disability between January 28, 1975 and September 18, 1975 and also made a voluntary payment of $6,804.46 for 25% permanent partial disability, all calculated on the basis of the Longshoremen’s and Harbor Workers’ Compensation Act. In July, 1976 plaintiff consulted an attorney, who filed suit for state compensation benefits on November 3,1976.

III

In Poche v. Avondale Shipyards, Inc., 339 So.2d 1212 (La. 1976) the crucial issue was whether state compensation was available to a claimant who was injured at an onshore point covered by the 1972 amendments to the federal act. In holding that the claimant could choose either compensation system, the Supreme Court noted that Adams (the claimant in the companion case) had elected to receive federal benefits and held he could not bring an executive officer action, which was expressly prohibited by the federal compensation statute. The dissenting opinion pointed out that the question as to the binding nature of an election had never been raised as an issue or briefed or argued by either party. On rehearing the court, noting the record showed only that plaintiff had received federal benefits, remanded the case for evidence on the issue of whether plaintiff had made an election that precluded his right to recover state compensation benefits.

No case cited to this court has held than an election under one system precludes a claimant’s rights to benefits under the other system, as long as there is no double recovery.

In Biondolillo v. Geosource, Inc., 359 So.2d 286 (La.App. 4th Cir. 1978) the court held that an election binding on the claimant does not take place when the employer or its insurer elected the form of benefits to be distributed and the claimant simply cashed the compensation checks.

In Palmer v. Keeney, 357 So.2d 1339 (La.App. 4th Cir. 1978) the court observed that election of benefits is a right of the claimant and not the insurer and held that the employer cannot choose to pay benefits under one system rather than the other and then contend that a claimant, disabled from work and without other means of support, has made a binding election by accepting the only benefits the employer offered to provide under circumstances in which some benefits are indisputedly due.

Here, plaintiff was unquestionably entitled to some form of compensation from his employer. He did not file pleadings to collect either (the claimant in Palmer filed both) until payments were stopped. He is not seeking double recovery, but concedes that all sums received from the employer must be credited against any award in this suit.

If there is such a thing as a binding election of one remedy which precludes a claimant from pursuing the other remedy, nothing in the factual circumstances of this case justifies the legal conclusion that such an election has been made.

The judgment of the trial court is reversed, and the matter is remanded for further proceedings. Costs of this appeal are assessed against defendants.

REVERSED AND REMANDED.


source: Caselaw Access Project

author: LEMMON, Judge.

license: Public Domain

text:
    Harry E. McCALL, Jr. v. TASSIN PILE DRIVING, INC.
    No. 10458.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 13, 1980.

      Thomas S. Loop, Metairie, for plaintiff-appellant.
    George W. Giacobbe, Kenner, for defendant-appellee.
    Before REDMANN, LEMMON and BOU-TALL, JJ.
   LEMMON, Judge.

This appeal by plaintiff, the owner of a home in an urban residential subdivision, presents the issue of whether a pile driving contractor is liable for damage to a sewer line on plaintiff’s property when the contractor moves its heavy equipment across the side yard in a mutually agreed upon route and then drives piles in the rear yard at points specifically marked by the property owner. The judgment dismissing plaintiff’s action was rendered upon a motion for dismissal at the completion of plaintiff’s evidence pursuant to C.C.P. art. 1810 B.

I

Desiring to build a patio in the rear of his home, plaintiff employed defendant corporation to drive 18 piles. The gas company marked the location of its lines, and plaintiff placed stakes at the precise spots where he desired the piles to be driven.

After defendant’s representative pointed out that the heavy equipment could not be moved from the street to the rear through the left side yard which was occupied by a driveway, they decided to move the fence and enter through the right side yard. Although plaintiff inquired as to the necessity of using mats in traversing the area, defendant did not do so. In moving the equipment, defendant carefully avoided the marked gas line.

Defendant then drove the piles at the staked points, except for the four nearest the house which were not accessible because of the house’s overhang. Since plaintiff was not aware of the route of the sewer line through the right side yard and near the house in the back yard, he did not warn defendant of the location of the line. Moreover, the contractor did not probe the marked sites for buried utility lines.

Portions of the line in the side yard were broken when rolled over by the heavy equipment, and the line was also broken in two spots in the rear yard by piles being driven there.

II

Either the owner or the contractor can prevent such damage as occurred here by determining the existence and- location of shallow utility lines before moving heavy equipment onto the site and driving the piles. As between the two, the responsibility to prevent such damage (in the absence of a contractual provision) is more properly placed on the contractor, who has the expertise and experience from dealing with such problems on a daily basis (rather than the owner who normally has such dealings once or twice in a lifetime) and who is in a better position to anticipate the risk and to protect himself by contract.

The contractor in this case did not attempt to ascertain the existence of any buried utility lines in the residential subdivision, nor did it attempt to prevent damage to such lines by using mats in moving heavy equipment onto the site and by probing before driving the piles.

As to the defense of assumption of risk, it cannot fairly be said that the owner knowingly consented to the risk of damage by marking the points where piles were to be driven (the stated points obviously being intended as support locations for the contemplated patio rather than places where the sewer line would not be affected) or by agreeing with the contractor to use the right side yard rather than to traverse the driveway.

Under the overall circumstances shown in this record the loss would be imposed on the contractor. However, since the judgment was rendered in response to defendant-contractor’s motion to dismiss at the completion of plaintiff’s evidence, defendant has not yet had the opportunity to present evidence. Accordingly, the judgment of dismissal must be set aside, rather than reversed, and the matter must be remanded for further proceedings.

JUDGMENT SET ASIDE, MATTER REMANDED.

      . The basic question in imposing responsibility is one of reasonableness, and proof of custom in the industry merely bears on this question. Thus, plaintiff should not lose simply because he failed to produce such proof, just as defendant would not have been conclusively entitled to judgment if it had offered such proof.

      . The trial court, in oral reasons, primarily based its decision on “plaintiff’s failing to prove damages”. While the record clearly shows that plaintiff sustained some damages, the only evidence bearing on the measure of damages was the cost of installing a plastic pipe in total replacement of a terra cotta line which was partially damaged.
      Perhaps the proper measure is the cost of replacing the damaged part of the terra cotta line (or the cost of replacing the entire line with terra cotta pipe if it is shown that the damage cannot be repaired). In any event either party on remand should be allowed to present additional evidence on the issue of measure of damages in order to assist the court in fixing the award, if plaintiff prevails on liability after all evidence has been presented.


author: GULOTTA, Judge. REDMANN, Judge, BARRY, Judge,

text:
    Mrs. Aline Solomon Clements, wife of/and Howell CLEMENTS v. ALLSTATE INSURANCE COMPANY and John Frenkel.
    No. 10985.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 13, 1980.
    Writ Refused June 23, 1980.

      Lambert J. Hassinger, Raymond A. McGuire, New Orleans, for plaintiffs-appellants.
    Porteous, Toledano, Hainkel & Johnson, Daniel R. Hynes, John J. Hainkel, Jr., New Orleans, for defendants-appellees.
    Before REDMANN, GULOTTA, SCHOTT, GARRISON and BARRY, JJ.
   GULOTTA, Judge.

Plaintiffs appeal from the dismissal. of their suit in this intersectional automobile accident case. We reverse.

At approximately 7:30 or 8:00 p. m. on October 4, 1975, Mrs. Aline Clements was driving in an uptown direction on Prytania Street in the direction of Audubon Park, at a speed of approximately 20 to 25 miles per hour. Passengers in her car were her sisters, Effie Bernard and Genevieve Sherman. As she approached the intersection of Prytania and General Pershing Streets, and was more than halfway across the intersection, the front of her automobile struck the left side of an automobile driven by John Frenkel, who was traveling on General Pershing in the direction of the river. Neither plaintiff nor her passengers saw Frenkel’s automobile until impact. The headlights on both automobiles were on before and at the time of impact.

John Frenkel testified that he stopped at the stop sign and remained stopped on General Pershing at Prytania, for “five or ten minutes” waiting to cross Prytania Street. His view of traffic on Prytania, traveling left to right, was obstructed by cars parked on Prytania Street along the curb. Apparently frustrated by his obstructed view, Frenkel got out of the automobile, walked a little beyond the hood, and peered to the left to look for approaching traffic. Seeing none, he got back into his car and started “creeping” across Prytania at a speed of approximately three or four miles per hour. According to an eye witness, Frenkel pulled out onto Prytania “like in slow motion . kinda putted out there.” According to Frenkel, the front of his automobile was abreast of the stop sign when he stopped on General Pershing. He estimated that he could see approximately 40 feet on Prytania Street to his left when he got out and walked forward, but saw no oncoming traffic. It is clear that, once back into his car and moving forward, Frenkel did not stop again before going out into Prytania Street, although he testified he continued to look to his left. He estimated the stop sign was four or five feet from the corner. Aline and Howell Clements, on the other hand, each estimated the stop sign to be 12 or 14 feet from the corner.

The question on liability is simply whether John Frenkel, confronted with an obstruction of his view of traffic to his left, did that which was required before entering the intersection.

In the first of two jury trials, the jury dismissed plaintiffs’ suit by a nine to three verdict. After a new trial had been granted by the trial judge, the jury in the second trial also dismissed plaintiffs’ suit, this time by an 11 to one verdict. Despite the findings of two separate juries, we reverse. Except for the conflicting testimony as to the location of the stop sign, the facts are virtually undisputed. Our reversal of the jury verdict is not based upon factual manifest error, but on jury error in failing to apply the proper standard of care required. In other words, the jury erred not as a matter of fact but as a matter of law.

A motorist on a favored street has the right to assume that any driver approaching the intersection on a less-favored street will yield the right-of-way. This right-of-way driver can indulge in this assumption until he sees, or should have seen, the other car has not yielded. Audubon Insurance Company v. Knoten, 325 So.2d 624 (La.App. 4th Cir. 1976). A driver who stops at a stop sign has discharged only part of the duty required of him; he must not proceed until he has made certain it is safe to do so; and this rule is especially applicable and requires a greater degree of care when the intersection he enters is a blind one. Continental Insurance Company v. Duthu, 235 So.2d 182 (La.App. 4th Cir. 1970).

In Valenti v. Courtney, 206 So.2d 579 (La.App. 1st Cir. 1968), the defendant motorist stopped at a stop sign located twelve feet from the intersection, at which point her vision was partially blocked by a growth of trees. She failed to move her automobile closer to the intersection to better see oncoming traffic to her right, but proceeded into the intersection and collided with an east-bound vehicle. The First Circuit concluded that she was negligent. We find the situation here analogous to the Valenti case.

Unquestionably, Frenkel exercised some caution in “scouting” the intersection before crossing. It was not, however, that .degree of care required of a prudent man. Clearly, he was well away from the point in the intersection at which he could have seen oncoming traffic. Taking as true his assertion that the stop sign was only four or five feet from the corner, the width of automobiles parked along Prytania added apparently six feet to the distance where the front of his car was stopped. Although well-intentioned and frustrated by his restricted visibility, Frenkel did not take effective precautions before entering the intersection. He could have slowly moved his automobile into Prytania Street to a point where the front of his car was protected by the parked automobiles to his left, then stopped again to look to his left. Presumably, he would have seen headlights of approaching vehicles. Frenkel’s failure to exercise this added precaution constitutes negligence on his part.

Having so concluded, we turn now to the quantum question. The special damages are not seriously disputed. Plaintiffs’ medical expenses include hospital bills in the sum of $525.00 for physical therapy, traction, heat, ultrasound and massage treatment, Dr. Courtney L. Russo’s bill for $295.00, and a bill for a cervical collar in the amount of $15.45, totaling $835.45. In addition, Dr. Russo estimated Mrs. Clements’ future medical expenses would not exceed $50.00 per year. Plaintiff did not offer, however, evidence of life expectancy or the expectation that these expenses would be necessitated for the remainder of her life. The doctor did testify that Mrs. Clements had reached a “plateau” or maximum recovery. Under these circumstances we cannot conclude plaintiffs have established entitlement to damages for future medical expenses.

Dr. ■ Russo, the orthopedic surgeon, who was Mrs. Clements’ treating physician, testified that her first visit for injuries sustained in this accident was on October 7, 1975. Mrs. Clements had been seen in a hospital emergency room on the day of the accident. According to Dr. Russo, x-rays showed fractures of the eighth and ninth ribs in the area where the ribs join the cartilage. There was no significant displacement. She complained of pain in the neck, rib cage, breastbone and back. Muscle spasm was discerned in the cervical spine area which resulted, according to Dr. Russo, from a cervical strain due to aggravation of a pre-existing arthritic condition. Analgesics, muscle relaxants and heat treatment was prescribed. On October 22nd and 27th, 1975 visits, Mrs. Clements continued to complain of cervical pain, as well as chest pain. Dr. Russo recommended traction while at home. Because of continued complaints of pain in the chest and back area, radiating into the shoulder, Dr. Russo recommended physical therapy on October 31st.

Mrs. Clements was seen by the physical therapist, Dr. Claude W. Garrett, Jr., on November 3, 1975. She complained of discomfort and pain in the neck upon rotation and lateral bending as well as pain in the lower cervical spine and upper lumbar area. She stated that occasionally she had pain, on deep breathing, in the rib cage area. Hot pack treatment was administered followed by ultrasound and massage to the affected area. This treatment continued on an almost daily basis until November 13, 1975. On a December 9th visit diathermy treatment was included through the rib cage area. Mrs. Clements was placed in traction on six occasions between December, 9th and December 17th. On a December 18th visit, plaintiffs neck pain had markedly improved and she received no physical therapy subsequent to that date.

Dr. Russo further testified that' when he saw her on November 13th, subsequent to the commencement of physical therapy, Mrs. Clements showed some improvement in the cervical spine; however, she was still exhibiting muscle spasms. He saw her thereafter on follow-up visits twice in December 1975, on seven occasions throughout 1976, five visits in 1977 and on a last visit in September 1978. It was on the July 7,1976 visit that he felt Mrs. Clements had reached a “plateau” for maximum recovery. He advised that she continue on aspirin, heat application, home traction and use of a soft cervical collar. Dr. Russo noted that on an August 20, 1976 visit she continued to have complaints and show objective signs of muscle spasms. In October 1976 she complained of severe shoulder pain. On December 1, 1976, approximately fifteen months post-accident, she continued with complaints of lumbosacral discomfort and complaints of pain in the cervical spine with spasm in the paravertebral muscles and upper trapezius. The same treatment as described hereinabove was continued.

Throughout visits in February, April, May, July and November, 1977, Mrs. Clements’ complaints remained about the same. Dr. Russo stated that at the time .of a November 2, 1977 visit, approximately two years post-accident, Mrs. Clements continued to exhibit objective signs of spasm.

On the last visit made to Dr. Russo, in September 1978, Mrs. Clements continued to complain of neck and shoulder pain but also complained of a slight numbness in the thumb and index finger of her left hand. According to Dr. Russo, numbness in this area is indicative of a pinched nerve which is not inconsistent with plaintiff’s complaint. In the doctor’s opinion, the injuries for which Mrs. Clements was treated were causally related to the October 4,1975 automobile accident. He indicated, however, that not all of her lower back problems were caused by the accident; she had preexisting arthritis and pre-existing birth defects and curvature of the spine. He could not say for sure that the accident aggravated . the lower back problem. Dr. Russo added that a possibility exists that a pre-ex-isting muscular condition, dúe to the “frozen” shoulder for which she had been earlier treated, could have been aggravated by the accident.

Mrs. Clements and her husband testified that she can no longer do housework, that she uses the cervical collar about ten or fifteen minutes every day, and that she sometimes is required to sleep wearing the collar. She denied that she had any problems with her back or neck before the accident or that she had ever been treated previously for arthritis.

It is clear from the evidence that Mrs. Clements suffered rib fractures and a cervical strain resulting in continued complaints of pain and muscle spasms in excess of a two-year period subsequent to the accident requiring medication, traction and physical therapy. The injuries and treatment considered, we deem a $20,000.00 general damage award to be appropriate.

Accordingly, the jury verdict and judgment dismissing plaintiffs’ suit are reversed and set aside. Judgment is no\v rendered in favor of Howell Clements for medical expenses incurred in the sum of $835.45. Judgment is rendered in favor of Mrs. Aline Solomon Clements, in the sum of $20,000.00, both awards to bear interest from date of judicial demand, and defendants to pay all costs. Expert fees are awarded to Drs. Russo and Garrett, in the sum of $200.00 each, and are to be assessed as costs.

REVERSED AND RENDERED.

REDMANN, J., dissents and assigns reasons.

BARRY, J., concurs with written reasons.

REDMANN, Judge,

dissenting.

The trial court trier of fact, whether judge or jury, is given primacy over appellate courts by both the Louisiana constitution and the Louisiana Supreme Court. If an ordinary panel of three appellate judges wishes to reverse or simply to modify a district court’s judgment (on fact or law), it can only do so if it is unanimous; otherwise it must resubmit the matter to a panel of five judges; La.Const. art. 5 § 8(B). Moreover, the trial court’s reasonable factual inferences from the record must be allowed to stand, and the appellate court may not substitute its own inferences, however reasonable; Canter v. Koehring Co., La.1973, 283 So.2d 716.

In an effort to understand the jury verdict (the same verdict an earlier jury rendered), and accepting all evidence in the light most favorable to the verdict, I conclude that the evidence permits this jury verdict to stand.

Plaintiffs were driving 20 or 25 mph. Witness Kniesley, driving behind them, saw defendant’s car “edging out [of the side street] into the intersection,” “like in slow motion.” Defendant driver’s vision to his left was obstructed by automobiles parked on Prytania near the corner. Defendant testified he “started very slowly into the Prytania street thoroughfare. Next thing I knew there was a crash and I was knocked about, I would say, about 30 feet to my right. My car was practically demolished: The insurance company said it would cost-too much to repair it.” Defendant again described his entry into Prytania street: he “started to creep forward, still looking, glancing to my left, to see if I could see approaching traffic.” Once again: “I put it in gear and tried to creep forward as slowly as possible looking to the left for oncoming traffic, and the next thing I knew there was a collision.” The damage to defendant’s car included “the door on the driver’s side.”

That testimony forms a basis for concluding that plaintiff driver was guilty of negligence: she should have seen defendant “creeping” out in time to stop, from her speed of 20 to 25 mph. (Although plaintiff testified that defendant’s car struck .her, the opposite conclusion is supportable from the evidence.)

If plaintiff had struck defendant’s car at its rear bumper (or if defendant’s car had been, stalled in the intersection a few seconds), one might easily infer that the negligence was exclusively plaintiff’s. On the other hand, if plaintiff had struck defendant’s car at its front bumper, one might easily infer that the negligence was exclusively defendant’s. Our facts fall between those extremes and permit the verdict and judgment appealed from. If the jury believed defendant was “creep[ing] forward as slowly as possible” he would have taken a relatively long, time to drive so far into the intersection as to be struck by his door. During that relatively long time, plaintiff should have seen him and stopped (just as independent witness Kniesley did).

BARRY, Judge,

concurs with written reasons.

The facts surrounding the accident are virtually uncontroverted.

Defendant stopped his vehicle for a stop sign on General Pershing Street in New Orleans. Because his vision to the left was blocked by parked vehicles, he got out of his car, walked forward, and looked left for approaching vehicles. Defendant testified his vision to the left was approximately 40 feet. Seeing no traffic he got back into his automobile and started moving forward by “creeping” and “putting” ahead. Plaintiff was traveling 20-25 miles per hour on Pry-tania Street and struck defendant's vehicle after it entered the oncoming traffic lane on Prytania Street.

Plaintiff was driving on a favored street and had the right of way. Limited visibility at the intersection precluded plaintiff from seeing the defendant failing to yield right of way. The facts of Valenti v. Courtney, 206 So.2d 579 (La.App. 1st Cir., 1968) are applicable here. By moving steadily, though slowly, forward defendant was negligent and the sole cause of the accident.

Defendant’s solution to the “blind” intersection (getting out of his car to look for oncoming traffic) was totally ineffective. This action might indicate prudence to a jury, but did not mitigate his poor judgment. Defendant’s movement into the favored street clearly constituted negligence.

During argument defendant-appellee’s counsel stated that contributory negligence was not an issue during trial and is not before us on appeal.

Accordingly, the jury misapplied the standard of care required as a matter of law and its verdict should be reversed.

For the foregoing reasons I concur with the majority.

      . Contributory negligence or negligence on plaintiff’s part apparently were not at issue in the trial court. Defendants did not assert the affirmative defense of contributory negligence in the original answer, but attempted to raise it by way of a supplemental and amended answer, filed without leave of court five days before the second trial. The trial judge evidently refused defendants permission to file the amended answer. Although plaintiff’s negligence was not briefed by defendant in the original hearing before this court, it was briefed by plaintiff and argued before the five-judge panel. Our consideration leads to a conclusion that defendants failed to establish plaintiff’s negligence or contributory negligence. No showing was made that, at a speed of 20 to 25 mph, plaintiff was exceeding the speed limit or was inattentive to her surroundings.

      . Mrs. Clements had been seen by Dr. Russo and an associate in 1971 for injury to her right foot and a rib fracture. She was also treated in 1971 by one of Dr. Russo’s associates for a fractured left arm. In August 1971 she received treatment for a “frozen” shoulder and in February 1975 she was seen for a sprained ankle and foot injury.


author: GULOTTA, Judge.

text:
    Annette WILLIAMS v. SOUTH CENTRAL BELL TELEPHONE COMPANY. Annette WILLIAMS v. Sam GATTUSO, James E. Hennessy and Roy Gattuso.
    Nos. 11069, 11070.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 13, 1980.

      Charles G. Rivet, New Orleans, for defendant-appellee South Central Bell.
    John F. Caraway, New Orleans, for inter-venors-appellants Housing Authority of New Orleans and U.S.F.&G.
    C. Gordon Johnson, Jr., New Orleans, for defendants-appellants.
    Before GULOTTA, SCHOTT and CHE-HARDY, JJ.
   GULOTTA, Judge.

In these consolidated suits growing out of a personal injury claim for damages sustained in a trip-and-fall accident, the trial judge granted summary judgment in favor of South Central Bell Telephone Company. The judgment dismissed not only plaintiff’s claim against Bell, but also all incidental demands against Bell, including third party complaints and an intervention. The inter-venor and the third party plaintiffs appealed, but plaintiff did not appeal. We affirm.

In the first of the consolidated suits, Annette Williams directed her claim against South Central Bell only. She alleged that on November 15, 1977, while employed by the Housing Authority of New Orleans (HANO), she tripped and fell on cut carpeting in the office. According to her petition, the carpeting had been cut to allow the installation of telephone lines beneath the carpet in the HANO office. She claims the carpeting was not repaired and was left unattended without any signs warning of the hazard. .HANO and its insurer, U.S.F. & G., filed a petition of intervention, seeking reimbursement for workmen’s compensation and medical expense payments made to plaintiff. Bell answered plaintiff’s petition and the intervention by general denial, and pleaded contributory negligence and assumption of the risk against Williams.

In 4he second suit, Williams directed her claim for injuries against Sam Gattuso, James E. Hennessey, and Roy Gattuso, alleged to be owners of the building occupied by HANO, plaintiff’s employer. By supplemental and amended petition, Williams named as additional defendants, Regent Development Corporation (also an alleged owner of the building), its insurer and George Pavlakis, the building superintendent or engineer. Williams alleged that Pav-lakis, as agent and employee of the other defendants, cut the carpet and created the “hidden defect or trap.” HANO and its workmen’s compensation insurer intervened in this suit also. The Gattusos and Hennes-sey filed a third party demand against Bell, seeking indemnification and/or contribution. They alleged Bell was negligent for cutting the carpet during installation and failing to warn HANO’s employees of the danger. Regent Development Corporation and Pavlakis, in answering HANO’s petition of intervention, also made a third party demand against Bell for indemnification and/or contribution.

In a second amended and supplemental petition, Annette Williams alleges that HANO, her employer, and U.S.F.&G., its insurer, failed to repair the cut carpet within a reasonable time and were thereby negligent. Her claim in this supplemental petition is directed against her employer.

Bell’s motion for summary judgment sought dismissal of all demands against Bell, on the basis of the pleadings and of facts developed through depositions and answers to interrogatories, and of admissions of facts by the plaintiff. As noted above, the trial judge granted the motion and dismissed the original and all incidental demands against South Central Bell. Because we conclude there exist no genuine issues of fact material to Bell’s liability, we affirm the judgment.

Keith J. Lutenbacher, the Bell employee who installed the telephone lines in the HANO office, stated in deposition that he made the installation on November 4, 1977. He had previously advised the HANO .director, Rita Hayes, to have the carpet cut open over the access plate to allow him to get into the under-floor conduit containing the telephone lines. When he arrived on November 4, the carpet had been prepared for the work to be done, and was cut in an “x” over the access plate. Lutenbacher further stated that he concluded the work on the same day and advised Hayes that he had finished the job and that she should contact the building people to repair the carpet. He testified he also saw the building manager or maintenance man and informed him he was finished with the work and that the carpet could be repaired. According to Lutenbacher,' no barricade or furniture had been placed over the cut area of the carpet when he left the HANO office, and he did not suggest to Mrs. Hayes that she cover the opening with anything. He told everyone in the office when he started work to be careful because the carpet was cut.

The building maintenance engineer employed by Regent Development Corporation was George Pavlakis. In his deposition, he stated that the carpet was cut at the request of Rita Hayes to facilitate the telephone installation. The actual cutting was done by a maintenance man, under Pava-lakis’ supervision. Contradictorily to Lu-tenbacher’s testimony, Pavlakis stated that the phone people took three days to make the installation. He said he saw the phone men in the lobby and they told him they were finished. However, he stated they told him nothing about the carpet. According to his deposition, immediately after the phone men informed him the job was finished, he placed gray tape over the cut area of the carpet and notified a carpet repair man to come sew the carpet. He further stated that three days elapsed between the time the phone company finished the job to the time the carpet was sewn. During that three day interval, Pavlakis said, the cut area of the carpet was covered by gray tape. He further testified that he did not learn of plaintiff’s fall on the carpet until about three weeks after the carpet was sewn.

Apparently, it is uncontradicted that the telephone people worked on November 4th, but it is questionable whether the work continued two days after that. Plaintiff alleged that her fall occurred on November 15th and this is not controverted by the other parties. In her depositions, Annette Williams stated that when she fell on November 15th there was no tape on the carpet and that no barricade or object had been placed over the carpet opening after it was cut.

The facts material to the issue of whether Bell breached a duty of care toward Annette Williams are established in the record without contradiction: (1) That the cutting of the carpet was not done by a Bell employee; (2) that the Bell employee, Keith Lutenbacher, gave immediate notice to both the HANO director and to the building maintenance engineer that he had completed the installation; and (3) that Annette Williams’ fall occurred anywhere from nine days to three weeks after Luten-bacher notified Hayes and Pavlakis that he was finished.

Under these uncontroverted facts, Bell is entitled to judgment as a matter of law, for these facts absolve Bell of any liability toward plaintiff. The facts that are contested (e. g., whether Bell finished the installation on November 4th or not until two days afterward; whether Pavlakis put tape over the cut carpeting and if so, when; whether the tape, if any, was there when plaintiff fell; whether plaintiff knew the carpet was cut) all relate to potential liability of the other defendants, not of Bell.

Nor do we find merit to Regent Development’s and Pavlakis’ contention that summary judgment should not have been granted against them because they had no adequate opportunity to conduct discovery. Regent and Pavlakis were not made defendants in the suit against the Gattusos and Hennessey until approximately five months after the original petition was filed. Approximately three months later, Bell filed its motion for summary judgment. Regent and Pavlakis opposed the motion on the basis they had not been in the case when the depositions and other discovery on which Bell relied were conducted. However, Pavlakis was deposed after he was brought into the suit, and the crucial facts on which Bell’s escape from liability rests were either supported or un-contradicted by his testimony. Moreover, as noted by defendant Bell, between the time the motion for summary judgment was filed and the time it was argued and decided, Regent and Pavlakis had more than two months in which to file countervailing affidavits and/or contradictory deposition testimony. Under these circumstances, Regent and Pavlakis were not prejudiced by the granting of summary judgment in Bell’s favor.

We reach the same conclusion regarding HANO’s and U.S.F.&G.’s claim to have suffered detriment from matters deemed admitted by Annette Williams’ failure to respond to Bell’s request for admissions. These defendants argue they were harmed because Bell served the request only on Williams. This argument has no weight in this instance. First, the requests were directed to matters purely within the knowledge of plaintiff Williams. Second, there is no evidence that the trial court relied solely on Williams’ admission in deciding the motion for summary judgment; also in the record are depositions and interrogatories which support the judge’s conclusion that no genuine issue of material fact exists regarding Bell. Thus, assuming (but not holding) that the admissions of a party do not bind a co-party, there is more than enough other evidence to support the trial judge’s decision.

For the foregoing reasons therefore, the judgment is affirmed.

AFFIRMED.

      . Bell’s request simply asked Williams to admit she knew of no information or persons to contradict or contravene the deposition testimony of Keith Lutenbacher and Frank Cole, the Bell employees, and further that she was aware of no factual information to support the allegations of negligence she had made against Bell in her petition.


author: GULOTTA, Judge. SCHOTT, Judge,

text:
    Willie P. MONTGOMERY v. Jessie M. Sartin, Wife of Willie P. MONTGOMERY.
    No. 11076.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 13, 1980.

      Singerman, Cosentino, Broussard, Toups & Troyer, Olden C. Toups, Jr., New Orleans, for defendant-appellant.
    James P. Screen, Anthony J. Milazzo, Jr.,. New Orleans, for plaintiff-appellee.
    Before GULOTTA, SCHOTT and CHE-HARDY, JJ.
   GULOTTA, Judge.

The defendant wife appeals from a judgment awarding temporary custody of the fourteen-year-old minor, Willie C. Montgomery, to the husband. According to the wife, because the separation suit is pending and no judgment of separation has been granted, the trial judge erred in failing to award custody to the mother absent a finding by the court of “strong reasons to deprive her” of that custody.

It is clear from the record that the minor resided with his father from the date of separation (either May 28, 1979 or June 6, 1979) to the date of the rule (July 6, 1979). It is clear also that the father and the minor live in the family home in the same neighborhood as relatives and friends of the minor, and apparently close to the school the boy attends. Although the mother is gainfully employed at a full-time job while the father is temporarily unemployed while recuperating from a recent operation, the father receives disability payments and rental income. The trial judge stated that he recognized “the paramount right of the mother to the custody of children of tender years,” but he concluded such a consideration, in this case, “is out weighed by the fact that the child was fourteen years of age and has been residing with his father.”

The wife argues the trial judge erred because he apparently applied LSA-C.C. art. 157 (regarding custody after judgment of separation or divorce) rather than LSA-C.C. art. 146 (regarding pendente lite custody). She contends that, prior to amendment of those articles in 1979, the trial judge had to grant custody to the wife in temporary custody matters unless he found “strong reasons” (i. e. the wife contends, unfitness of the mother) to deprive her of custody. As pointed out by the wife, the pre-1979 amendment versions of articles 146 and 157 set forth differing tests for custody pendente lite and permanent custody. We agree that, because the suit was filed on June 26, 1979' and the custody rule heard on July 6,1979, the earlier versions of the codal articles apply because the 1979 amendment had not yet become effective.

Although a number of earlier cases applying the former LSA-C.C. art. 146 have equated “strong reasons to deprive her” with unfitness of the mother, the welfare of the child is always the paramount consideration in custody proceedings. Moreover, LSA-C.C. art. 146 itself, prior to the 1979 amendment, stated that determination of whether there were “strong reasons” to deprive the mother of custody “is left to the discretion of the judge”. Furthermore, great weight is accorded to the discretion of trial judge in custody matters and absent a finding of an abuse of that discretion, the judgment will not be disturbed. Guillory v. Guillory, 221 La. 374, 59 So.2d 424 (1952). We find no such abuse in the instant case.

The trial judge had the opportunity to view the opposing parties and to weigh the effect the change from a settled environment would have on the 14-year-old boy. The judge concluded that it was best for the minor’s welfare.to remain with his father in the already established home. We find no error.

Accordingly, the judgment is affirmed.

AFFIRMED.

SCHOTT, J., concurs and assigns reasons.

SCHOTT, Judge,

concurring:

When this case was tried in July, 1979, it was governed by the following provisions of LSA C.C. Art. 146:

“If there are children of the marriage, whose provisional keeping is claimed by both husband and wife, the suit being yet pending and undecided, it shall be granted to the wife, whether plaintiff or defendant; unless there should be strong reasons to deprive her of it, either in whole or in part, the decision whereof is left to the discretion of the judge.” (Emphasis supplied)

Clearly, this article', particularly the emphasized portion, places the burden of proof on the husband to supply “strong reasons” to deprive the wife of custody. The only reasons shown in the testimony are that (1) the husband is recuperating from an injury and will be home with his son; (2) the boy had been living with his father for the one month period between the date these parties separated and the date the rule was tried, so that a change in custody would require him to move; and (3) the father’s house may be a little closer to the boy’s school than the mother’s.

I am not persuaded that these are strong reasons. The father failed to show that he can care for this 14-year old boy in preparing his meals, caring for his clothing, or supervising his schooling and social activities, in a manner superior to how the mother might perform these duties. The fact that the boy was with the husband for just a month before the trial of the rule has little significance. Finally, the location of the mother’s residence' is not appreciably farther from the high school this boy attends, considering that the boy will probably use public transportation to go to school. The judgment is not supported by the evidence and is contrary to the law as it existed at the time the rule was tried.

However, the effect of a reversal of that judgment would be counter productive in that Art. 146 has now been amended, effective September 7, 1979, to eliminate the husband’s burden to prove strong reasons to deprive the wife of custody. If we were to reverse the judgment the child would be sent to the mother for only a brief period before the husband could provoke a new rule for change of custody under the new law and probably regain custody since the facts, if unchanged from the previous rule, would support the exercise of discretion on the part of the trial judge in awarding custody to the father at this time.

Accordingly, I concur with my colleagues in affirming the judgment of the trial court for practical considerations in the light of the amendment to C.C. Art. 146.

      . Prior to their amendment by-Act 718 of 1979, these articles stated as follows, in pertinent part:
      “Art. 146. If there are children of the marriage, whose provisional keeping is claimed by both husband and wife, the suit being yet pending and undecided, it shall be granted to the wife, whether plaintiff or defendant; unless there should be strong reasons to deprive her of it, either in whole- or in part, the decision whereof is left to the discretion of the judge.”

        “Art. 157.A. In all cases of separation and divorce, permanent custody of the child or children shall be granted to the husband or the wife in accordance with the best interest of the child or children. * * * ”

      . By Acts 1979, # 718 § 1, Articles 146 and 157 were amended to read as follows, in pertinent part:
      “Art. 146. If there are children of the marriage, whose provisional keeping is claimed by both husband and wife, the suit being yet pending and undecided, it shall be granted to the husband or the wife in accordance with the best interest of the children. In all cases, the court shall inquire into the fitness of both the mother and the father and shall award custody to the parent the court finds will in all respects be in accordance with the best interest of the child or children. ...”
      “Art. 157.A. In all cases of separation and divorce, and changes of custody after an original award, permanent custody of the child or children shall be granted to the husband or the wife, in accordance with the best interest of the child or children, without any preference being given on the basis of the sex of the parent..

      . The effective date of the 1979 amendment was September 7, 1979.


author: STOKER, Judge.

text:
    MATHIEU DRILLING COMPANY, INC., Plaintiff-Appellant, v. SKYTOP RIG COMPANY, Defendant-Appellee.
    No. 7644.
    Court of Appeal of Louisiana, Third Circuit.
    May 15, 1980.
    Martzell, Montero & Lamothe, Frank E. Lamothe, III, New Orleans, and William H. Hallack, Jr., Monroe, for plaintiff-appellant.

      Vinson & Elkins, Fay E. Morriseau, Houston, Tex., Liskow & Lewis, Lawrence P. Simon, Jr., J. Nathan Stansbury, Lafayette, for defendant-appellee.
    Before CUTRER, STOKER and DOU-CET, JJ.
   STOKER, Judge.

MOTION TO DISMISS

An ex proprio motu order was issued herein by the court directing appellant, Mathieu Drilling Company, Inc., to show cause why this appeal should not be dismissed for failure to timely file the appeal.

Appellant, Mathieu Drilling, instituted this action against Skytop Rig Company seeking the issuance of a preliminary injunction and permanent injunction and, in the alternative, a writ of sequestration directing defendant to return a mud pump which defendant had repaired. On October 2, 1979, the trial court issued an order directing defendant to show cause why a preliminary injunction should not issue ordering defendant to return the mud pump.

In response to the order to show cause, defendant filed a peremptory exception of no cause of action and a declinatory exception of lack of jurisdiction. Following a hearing on the motion for preliminary injunction, the trial court rendered judgment on October 9, 1979, rejecting plaintiff’s demand for preliminary injunction. Plaintiff filed a motion for appeal November 5, 1979.

C.C.P. Article 3612 provides, in pertinent part, “An appeal from an order or judgment relating to a preliminary injunction must be taken and a bond furnished within fifteen days from the date of the order or judgment.”

Appellant filed his motion for appeal November 5,1979, well after the expiration of the 15 day period. His appeal from the judgment rejecting his demand for preliminary injunction is untimely.

However, appellant contends that the trial court also dismissed his demand for a permanent injunction and a writ of sequestration. In support of this contention, ap-pellánt points to the following colloquy which occurred between the trial judge and plaintiff’s counsel at the hearing on the preliminary injunction:

“MR. LAMOTHE: Is Your Honor ruling on the permanent injunction as well as the preliminary injunction?
“THE COURT: Yes sir, the Court is going to because the Court feels that if it does not have jurisdiction and that this is an improper vehicle for a preliminary injunction, certainly the Court could not go the next step and enter a permanent injunction which would have the same effect of extending a preliminary injunction. A permanent injunction has to follow a preliminary injunction, and certainly, if the rules that this Court understands .the game is played by would not allow me to grant a preliminary injunction, certainly it would not not allow me to grant a permanent injunction for the same reasons.
“Accordingly, the relief sought will be denied and the entirety of the matter would be dismissed at plaintiff’s costs.

Although the trial judge indicated that he could not grant the permanent injunction; it is clear that the judgment rendered and signed by the trial judge only dismissed plaintiff’s demand for a preliminary injunction. No hearing has been held and no judgment has been rendered as to plaintiff’s demand for a permanent injunction. Absent a signed judgment dismissing plaintiff’s demand for a permanent injunction, any appeal relating to plaintiff’s demand for a permanent injunction would be premature.

Accordingly, since appellant’s appeal from the judgment rejecting his demand for preliminary injunction was perfected untimely, the appeal is dismissed at appellant’s cost.

DISMISSED.


author: BROOM, Justice,

text:
    ANDERSON-TULLY COMPANY v. Wesley C. BROWN.
    No. 51956.
    Supreme Court of Mississippi.
    May 28, 1980.
    Ward, Martin, Terry & Way, Wren C. Way, Vicksburg, for appellant.
    G. K. (Jed) Mihalyka, Vicksburg, for ap-pellee.
    Before SMITH, BROOM and COPER, JJ.
   BROOM, Justice,

for the Court:

Garnishment of wages based upon a judg-, ment against which the seven year statute of limitations has run is the salient feature of this case appealed from the Circuit Court of Warren County. Appellee Wesley C. Brown was judgment debtor to one Alfred Cook who obtained a $200,000 default judgment (judgment of liability dated April 21, 1970, judgment on amount dated May 15, 1970) against Brown in a tort action filed in said court. On July 14,1970, Cook obtained a writ of garnishment against Brown’s employer, the appellant Anderson-Tully Company, returnable to October 2, 1970. The writ was properly served upon Anderson-Tully who, without ever answering the writ, beginning August 7,1970 and continuing over eight years until April 1, 1979, withheld $10 weekly from Brown’s wages. This litigation relates to sums withheld after May 14, 1977 on which date Cook’s judgment against Brown lapsed by the running of the seven year statute of limitations. The lower court on April 26, 1979 entered its order holding:

[T]he expiration of the judgment on said date extinguished both the right and remedy of the judgment holder, Cook, against Brown by operation of law. . Anderson Tully Company was charged with knowledge thereof and wrongfully withheld and paid over the amount of $890.00 to the judgment holder, Cook, thereby entitling Brown to reimbursement of all of said funds illegally withheld. .

Mississippi Code Annotated § 11-35-25 (1972) provides, among other things that one “summoned as a garnishee shall answer on oath . . . According to the record, instead of filing any answer to the writ of garnishment, Anderson-Tully withheld $10 a week from Brown’s wages and paid it directly to the attorney for judgment holder Cook. Withholding of the wages was done on a purely informal understanding between Anderson-Tully and Cook’s attorney. In complete disregard of the fact that the judgment upon which the garnishment was founded expired on May 15, 1977, Anderson-Tully continued to withhold the sum of $10 weekly from Brown’s wages through April 1, 1979. Testimony was that the garnishment based upon such a large judgment, $200,000, was a matter of amusement in the office of Anderson-Tully. Another interesting bit of testimony is that Anderson-Tully’s policy was not to file answers on garnishment writs served upon the company-

Under Mississippi Code Annotated § 15-1-13 (1972), after seven years a judgment as well as an execution thereon effectively lapses. According to Mississippi Code Annotated § 15-1-47 (1972), a judgment lien expires in seven years unless suit is brought on the judgment. In commenting on judgments rendered by courts in Street v. Smith, 85 Miss. 359, 37 So. 837 (1905), we held that a judgment lien:

[C]an be extended by the filing of another suit upon the judgement before the expiration of seven years from the date of the rendition thereof, and in no other manner. (85 Miss. at 364, 37 So. at 838).

In the case now before us it is undisputed that no suit was filed to renew or extend the judgment which Cook had obtained against Brown, and the seven year statute had run. The law is clearly established in this state that a garnishment proceeding is no longer valid upon the facts of this case after lapsing of the judgment upon which garnishment is issued. Once Cook’s judgment against Brown became extinguished by the running of the limitations statute, judgment creditor Cook had no “valid claim to the funds in controversy.” Grace v. Pierce, 127 Miss. 831, 838, 90 So. 590, 592 (1922). Our opinion in Grace further provides that the issuance of a writ of garnishment:

[B]efore the bar of the statute attached did not serve to extend or keep alive the lien of these judgements . . . the judgement lien is created by the final decision of a court, so it can only be renewed or extended by a similar process. The lien of a judgement can be extended by the filing of another suit upon the judgement before the expiration of seven years from the date of the rendition thereof, and in no other manner. (127 Miss. at 837-8, 90 So. at 592).

As far back as 1895, we held that after the running of the limitations period pursuant to what is now Mississippi Code Annotated § 15-1-3 (1972) there is the resulting extin-guishment of “the right as well as the remedy.” Proctor v. Hart, 72 Miss. 288, 16 So. 595 (1895). More recently, in Hawkins v. Southern Pipe & Supply Company, 259 So.2d 696 (Miss.1972) we followed the rule of Proctor v. Hart, supra.

Upon this record, wherein it is clear that Anderson-Tully totally failed in its statutory duties (answer the writ) under Mississippi Code Annotated § 11-35-25, supra, the lower court correctly ordered that Anderson-Tully pay over the funds which had been withheld from Brown’s wages after the seven year limitation statute had run against the judgment. Our decision in State Farm Mutual Automobile Ins. Co. v. Sampson, 324 So.2d 739 (Miss.1975) provided that if a garnishee “surrenders to a person not entitled thereto, or pays a gar-nishor more than the garnishor is entitled to, he is not relieved from liability, but will be required to make up any overpayment.” Sampson states that the garnishee is a stakeholder and “must not voluntarily do anything to prejudice the parties and may not, except at his own peril, transfer the property or make a voluntary payment.”

Also under Sampson, such “garnishee is charged with the custody and preservation of the garnished debt or property pending the outcome of the litigation unless he surrenders the property to the officer serving the writ.” Undisputed facts in this case are that Anderson-Tully did not comply with the commands of our garnishment statutes; did not tender the money which they withheld from Brown’s wages to the court; and did not pay the officer serving the writ. Rather, it chose to pay Brown’s money to Cook’s attorney under an informal agreement. Anderson-Tully filed no answer as required by the statutes, and upon this record is liable to Brown for the monies wrongfully withheld. A writ of garnishment, like all other legal writs, must be responded to in accordance with pertinent statutes and one who makes a decision not to respond according to the statute does so at his peril. Accordingly, the lower court correctly held that Anderson-Tully must pay over to Brown the funds wrongfully withheld (after the judgment lapsed) from his wages and accordingly, the case must be affirmed.

AFFIRMED.

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


text:
    Jessie James MOTEN v. STATE of Mississippi.
    No. 51904.
    Supreme Court of Mississippi.
    May 28, 1980.
    Farese, Farese & Farese, Steven E. Farese, Ashland, for appellant.
    Bill Allain, Atty. Gen. by Robert D. Find-ley, Sp. Asst. Atty. Gen., Jackson, for appel-lee.
   Appeal from Circuit Court, DeSoto County; Andrew C. Baker, Judge.

Before PATTERSON, C. J., SMITH, P. J., and SUGG, J.

AFFIRMED.


author: FAULKNER, Justice. MADDOX, Justice TORBERT, Chief Justice PER CURIAM.

text:
    Bobby D. COOK, as Administrator, etc. v. COUNTY OF ST. CLAIR, et al. Corinda BRADSHAW et al. v. HOUSTON COUNTY, Alabama, etc., et al.
    78-623, 78-776.
    Supreme Court of Alabama.
    April 4, 1980.
    Rehearing Denied in 78-623, May 23, 1980.

      Douglas Bums, of Burns, Shumaker & Davis, Gadsden, for appellant Bobby D. Cook.
    G. M. Harrison, Jr., of Merrill & Harrison, Dothan, for appellants Corinda Bradshaw and Pat Bradshaw.
    F. Michael Haney and James C. Inzer, Jr., of Inzer, Suttle, Swann & Stivender, Gadsden, for appellee County of St. Clair, etc.
    Herman Cobb, of Buntin & Cobb, Dothan, for appellees Houston County, Alabama, etc., et al.
   FAULKNER, Justice.

These consolidated appeals are from judgments by the Circuit Courts of St. Clair and Houston Counties, dismissing claims against St. Clair County and Houston County, and their respective county commissions and commissioners individually for injuries resulting from the alleged negligent and wanton maintenance of public roads. We reverse, except as to that portion of the St. Clair Circuit Court’s order dismissing the actions as to the county commissioners individually.

I.

Case No. 78-623

On April 12, 1977, Bobby Cook’s wife, Dianne, and son, John, were passengers in a pick-up truck being driven by Darlene Cor-bin on County Road No. 22 (Shoal Creek Road) near its intersection with County Road No. 26 outside Ashville in St. Clair County. At this intersection the stop sign stopping traffic on County Road No. 22 had been knocked down, and therefore, was not visible from the road. It was alleged that the county commissioners had known for a long time that the sign was down. Ms. Corbin did not see the stop sign and drove into the intersection, colliding with a school bus driven by Peggy Sanders. Mrs. Cook and John were killed. Mr. Cook filed the required claim for damages with St. Clair County. The county commissioners failed to act on the claim and this suit was filed against the County, the county commission, and the county commissioners in their official and individual capacities, and Darlene Corbin. All of the defendants except Darlene Corbin filed a motion to dismiss, which the court treated in the alternative as a motion for summary judgment. The motion asserted that the County and its agents were protected by governmental immunity from actions ex delicto. The motion to dismiss and/or the motion for summary judgment was granted. Mr. Cook appeals.

II.

Case No. 78-776

On July 15, 1978, Corinda Bradshaw was driving a car owned by her husband, Pat Bradshaw, on Fortner Street Extension, a street owned and maintained by Houston County. Mrs. Bradshaw allegedly struck a pothole in the road, causing her vehicle to collide with a dirt embankment, resulting in injuries to her. Mr. and Mrs. Bradshaw filed a claim against Houston County pursuant to Code 1975, §§ 11-12-5 and 11-12-8. The Houston County Commission did not act on this claim, and the Bradshaws filed suit alleging negligent and wanton failure to maintain the street in a reasonably safe condition. Houston County, the county commission, and the county commissioners in their official capacities, filed an ARCP 12(b)(6) motion to dismiss. The motion was granted by the trial court. The Bradshaws appeal.

III.

These cases present the issue of the general tort liability of a county, its county commission, and county commissioners. Mr. Cook, and the Bradshaws, contend that the county, its governing body and officials cannot assert governmental immunity as a bar to actions against them for defectively maintained roads, either expressly or implicitly as the result of this Court’s decision in Lorence v. Hospital Board of Morgan County, 294 Ala. 614, 320 So.2d 631 (1975). The respective counties, commissions, and commissioners assert that the effect of Lo-rence was not to abolish the counties’ general immunity from tort actions where there is no express language allowing suit against the county in the specific statute dealing with the county function involved. They contend in this instance that there is no “may be sued” language in Code 1975, § 23-1-80, providing that the county commission is charged with superintendence of public roads.

The judicially developed doctrine of governmental immunity for counties and municipalities has existed in Alabama for many years. Although the courts of this State formulated the corporate-governmental distinction as the basis for allowing cities and counties to be sued for their tortious conduct, this distinction was applied to municipalities permitting them to be sued for torts committed in the performance of their proprietary or corporate functions but never applied to counties. A county, an involuntary political subdivision of the state having state powers and duties, was liable for negligence in the performance or nonperformance of these governmental duties only where a statute expressly provided for such liability, and where the county employee acted within the scope of his authority in discharging a duty expressly, and specially, conferred on that county by the legislature. See Copeland and Screws, Governmental Responsibility for Tort in Alabama, 13 Ala.L.Rev. 296 (1961). This State, however, has had a statute continuously since 1852, presently codified as Code 1975, § 11-1-2, that provides, “Every county is a body corporate with power to sue or be sued in any court of record.”

The demise of the doctrine of governmental immunity in tort proceedings was instigated in Jackson v. City of Florence, 294 Ala. 592, 320 So.2d 68 (1975), where this Court abolished the doctrine of municipal immunity quasi-prospectively, recognizing that the legislature had provided for tort actions against cities and towns in 1907, and that the corporate-governmental distinction was purely court-created and could be removed by the court. In Lorence v. Hospital Board of Morgan County, the holding of which is the crux of the dispute between the parties in the present case, governmental immunity in the context of a county hospital was presented. Justice Jones, speaking for the Court, discussed not only Tit. 22, § 204(24), Code of Ala.1940 (Re-comp. 1958), that allowed a county hospital board “to sue and be sued and to defend suits against it; . . . ” but also Tit. 12, §§ 3 and 115, and Tit. 7, § 96, Code of Ala.1940 (Recomp. 1958), permitting the county “to sue or be sued” and providing for the claim procedure before suit was brought. He stated, however, that the issue of a county’s general liability was not before the Court, that what was before it was the immunity of a county hospital board, and held that because the statute authorizing the creation of the boards expressly provided for suits against them, county hospital boards no longer had immunity from tort actions.

Hudson v. Coffee County, 294 Ala. 713, 321 So.2d 191 (1975), submitted after Lo-rence, concerned a personal injury complaint filed against the county, the probate judge, the commissioners as individuals and officials, and agents, for negligence in the loading of a bulldozer onto a lowboy leased by the county to the Hudsons, and operated by county employees. In that case the Court remarked that the defense of governmental immunity in tort actions against counties had been abolished in Lorence, but that the decision was limited to that case and causes of action arising thereafter; thus it had to consider pre-Lorence law, and held that dismissal of the Hudson claim was proper.

The status of the general immunity of a county from tort actions was somewhat unclear as a result of certain language in Lorence and Hudson. Although subsequent cases dealing with immunity for governmental entities have not presented us squarely with the issue of whether the general sovereign immunity of a county still exists, an analysis like that of Lorence has been used in the cases involving county boards of education.

In Sims v. Etowah County Board of Education, 337 So.2d 1310 (Ala.1976), a suit by a spectator at a high school football game, for injuries sustained when the stands where she was seated collapsed, Justice Beatty, speaking for the Court, distinguished the language of the statute governing county hospital boards interpreted in Lorence from Tit. 52, § 99, Code of Ala.1940 (Recomp. 1958), creating the powers of a county board of education, stating that “It may sue and contract, . . . .” The premise of tort liability in Lorence was statutory authorization, while in Tit. 52, § 99 there was no express legislative authorization for actions against the county board of education — no “may be sued” language; thus, whether tort actions could be brought against the board was a matter for judicial decision. The majority in Sims determined that without the additional statutory language, a negligence action could not be maintained, but counts based on the board’s contractual undertaking to furnish a safe place to watch athletic contests could be maintained. The dissenting justices stated that county boards of education had been held to have the implied right to be sued within the scope of their corporate powers.

In Board of School Commissioners of Mobile County v. Caver, 355 So.2d 712 (Ala.1978), a student injured by a county school bus while standing in the school yard brought a suit for negligence, and the trial court entered an interlocutory order that the Mobile County School Board was not immune from tort proceedings. Section 270 of Article XIV of the Alabama Constitution indicated that the Mobile County school system was to be treated differently from other school boards in the state. Act No. 480 (the most recent amendatory act regulating Mobile County public schools at the time of the case) provided that the Mobile County School Board was a body corporate and “may sue and be sued.” Justice Blood-worth, writing for the Court, stated that Sims and Enterprise City Board of Education v. Miller, 348 So.2d 782 (Ala.1977), held that sovereign immunity for boards of education would be based on the statutes involved. If there was only “may sue” language and no “be sued” language, there was immunity from suits in tort. Act No. 480 contained the language “may sue and be sued”; thus, the Mobile County School Board could be sued in tort. On the basis of the holding in Jackson and language in Lorence, the Court held whether the act causing the injury was performed in the board’s corporate or proprietary capacity, as opposed to its governmental capacity, was immaterial.

Section 11-1-2, Code 1975, provides, “Every county is a body corporate, with power to sue or be sued in any court of record.” This provision contains the words “be sued” which this Court has stated in Lorence, Sims, and Caver to be essential to a determination of statutory authorization of suits against a governmental entity. By its inclusion of such language in this provision and in predecessor statutes as early as 1852, the legislature has indicated that counties are not to be immune from suit because they are governmental entities. This was reaffirmed by legislation limiting liability in tort cases against counties and municipalities enacted May 23, 1977, and contained in Act 673, page 1161 of Volume 2, Acts of Alabama 1977;

“Section 2. The recovery of damages under any judgment against a governmental entity shall be limited to $100,-000.00 for bodily injury or death for one person in any single occurrence. Recovery of damages under any judgment or judgments against a governmental entity shall be limited to $300,000.00 in the aggregate where more than two persons have claims or judgments on account of bodily injury or death arising out of any single occurrence. Recovery of damages under any judgment against a governmental entity shall be limited to $100,-000.00 for damage or loss of property arising out of any single occurrence. No governmental entity shall settle or compromise any claim for bodily injury, death or property damage in excess of the amounts hereinabove set forth.”

We refer to this statute because of its showing of a legislative intent, and for that reason only.

There is no restriction to the type of suit that may be brought against the county— tort or contract. The only requirements that must be met regarding a suit against a county are set out in §§ 6-5-20(a), 11-12-5, 11-12-6, and 11-12-8, Code 1975 requiring presentment of an itemized, verified claim, to the county commission within twelve months of accrual, and acted on within ninety days prior to commencement of the suit. This Court has determined in Jackson, Lorence, and Caver that the corporate-governmental function distinction is no longer a viable requirement for actions against counties and municipalities.

The county as a corporate entity, like any other corporation, may act only through its officers, the county’s governing body, the county commission.

We hold that § 11-1-2 allows suits against counties, and their governing bodies — the county commissions and commissioners — in their official, but not in their individual capacity in tort irrespective of any corporate-governmental function distinction. Therefore, we reverse the trial courts’ orders granting the defendants’ motions to dismiss, except as to that portion of the St. Clair Circuit Court’s order dismissing the action against the county commissioners individually.

REVERSED AND REMANDED as to the Houston County action. AFFIRMED IN PART; and REVERSED IN PART and REMANDED as to the St. Clair County action.

JONES, ALMON, SHORES and BEAT-TY, JJ., concur.

MADDOX, J., concurs specially.

TORBERT, C. J., concurs in part, and dissents in part.

BLOODWORTH and EMBRY, JJ., not sitting.

MADDOX, Justice

(concurring specially).

I was strongly inclined to register my dissent in this case, but had I dissented, I would have stood alone, and I see no useful purpose in continuing to express a dissenting view when I know that the other members of this Court are committed to a contrary opinion. My views on the extent and scope of “governmental immunity” in Alabama were clearly stated in Hutchinson v. Board of Trustees of University of Alabama, 288 Ala. 20, 256 So.2d 281 (1971), and in the dissenting opinions of Justice Merrill in Jackson v. City of Florence, 294 Ala. 592, 320 So.2d 68 (1975), and Lorence v. Hospital Board of Morgan County, 294 Ala. 614, 320 So.2d 631 (1975). I refer the reader to those opinions.

My prior views of “governmental immunity” were based upon a sincere belief that if “governmental immunity” was to be abolished, the legislative branch was the appropriate branch to abolish it. In Lo-rence, supra, Justice Merrill suggested that the legislature could change the effect of that decision. Because the legislature did not change the effect of Lorence, and because I feel compelled to follow the precedent this Court, as presently constituted, has now established, I concur in the result. See Mr. Justice Black’s special concurrence in Morgan v. Virginia, 328 U.S. 373, 66 S.Ct. 1050, 90 L.Ed. 1317 (1946), where he said: “In view of the Court’s present disposition to apply that formula, I acquiesce.”

TORBERT, Chief Justice

The majority holds “that § 11-1-2 allows suits against counties, and their governing bodies — the county commissions and commissioners — in their official, but not in their individual capacity in tort irrespective of any corporate-governmental function distinction.” I concur in the majority holding insofar as it applies to the counties themselves. I dissent from the opinion of the majority insofar as it applies to the county commission and commissioners in their official capacity.

The majority opinion places special emphasis on the words “to be sued,” and holds that this Court has stated that the “to be sued” language is essential to a determination of statutory authorization of suits against governmental entities. Board of School Commissioners of Mobile County v. Caver, 355 So.2d 712 (Ala.1978); Lorence v. Hospital Board of Morgan County, 294 Ala. 614, 320 So.2d 631 (1975); Jackson v. City of Florence, 294 Ala. 592, 320 So.2d 68 (1975). I fail to see the magic in the term “to be sued,” and I would hold as per my special concurrence in Caver, supra, that the right to sue carries with it the implied right to be sued.

We now find ourselves committed to this statutory interpretation: If the statute provides that the public body “may sue and be sued” then there is no immunity from tort liability; however, if the statute provides only that the body “may sue” then the body is immune from tort liability. I find this reasoning difficult because this court is also committed to the proposition that the right to sue carries with it the implied right to be sued, Kimmons v. Jefferson County Board of Education, 204 Ala. 384, 85 So. 774 (1920)

Board of School Commissioners of Mobile County v. Caver, 355 So.2d 712 at 714 (Ala.1978) (emphasis in original).

The inherent inconsistency in the majority opinion is that, although the majority writes that the magic words “may be sued” are essential for a determination of statutory authorization of suits against a governmental entity, nowhere in the majority opinion is there reference to the statutory authorization for suits against county commissions or county commissioners in their official capacity. In Lorence v. Hospital Board of Morgan County, 294 Ala. 614, 320 So.2d 631 (1975), this Court held that a county hospital board was not immune from suit. That decision was based in part on the fact that Code of Alabama of 1958, Tit. 22, Art. 5, § 204(24), expressly gives the county hospital boards the powers of a corporation including the statutory authorization to “sue and be sued.” In Board of School Commissioners of Mobile County v. Caver, 355 So.2d 712 (Ala.1978), this Court held the Board of School Commissioners of Mobile County is not immune from suit in tort. That decision was based on Acts of Alabama of 1969, Act 480 at § 5, where the legislature has expressly given the powers of a corporation to the school board including the statutory authorization that the school board “may sue and be sued." In Enterprise City Board of Education v. Miller, 348 So.2d 782 (Ala.1977), this Court held that the Enterprise City Board of Education was immune from suit because there was no express statutory authorization for suits against the City Board of Education.

It is quite clear that Jackson and Lorence v. Hospital Board of Morgan County, 294 Ala. 614, 320 So.2d 631 (1975) are based upon legislative interpretation.
There is no mention in the statutes under which city school boards are created of the ability to be sued.

Enterprise City Board of Education v. Miller, 348 So.2d 782 (Ala.1977).

In the instant case, the majority has simply failed to base its decision holding county commissions and commissioners subject to suit on a provision containing the words “be sued” which this Court has stated in Lo-rence, Sims and Caver to be essential to determination of statutory authorization of suits against the governmental entity. It is true, as the majority points out, that Code 1975, § 11-1-2, provides: “Every county is a body corporate, with the power to sue or be sued in any court of record.” It is significant that § 11-1-2 makes no reference to the county commission as a legal entity capable of being sued nor to the county commissioners in their official capacity. The majority attempts to bolster its holding by citing Code 1975, §§ 23-1-80 and 11-3-10, which entrust the county commission with superintendence of public roads. Neither of these sections invests the county commission with the powers of a body corporate capable of suing and being sued. Code 1975, § 11-3-11, sets forth the powers and duties of the county commission generally. A close examination of that section reveals that nowhere in that Code section is the county commission given the status of a body corporate capable of suing and being sued. Because of the internal inconsistency in the majority opinion (i. e., the lack of a statutory authorization of suits against county commissions or commissioners individually), I dissent from the majority opinion insofar as it holds that the county commissions and commissioners in their official capacities are legal entities capable of being sued.

ON REHEARING

PER CURIAM.

The defendants’ application for rehearing prompts the following observation regarding our opinion in this case: Counties are amenable to suit in tort under Code of Alabama, 1975, § 11-1-2. Because counties, as bodies corporate, act through their governing bodies, the county commissioners, those commissioners likewise are subject to suit in tort, not in their individual capacities but only in their official capacities. The defense of governmental immunity is no longer available in such suits. Cf. Hudson v. Coffee County, 294 Ala. 713, 321 So.2d 191 (1975).

This order on rehearing applies only to 78-623, Cook v. County of St. Clair. There was no application for rehearing filed in 78-776, Bradshaw v. Houston County.

OPINION EXTENDED; APPLICATION FOR REHEARING OVERRULED.

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

TORBERT, C. J., dissents.

BLOODWORTH and EMBRY, JJ., not sitting.


author: ALMON, Justice.

text:
    Merle CARR and Beth Lockett v. Kim Carr DUNN et al.
    78-278.
    Supreme Court of Alabama.
    May 23, 1980.
    John F. Dillon, IV of Dillon, Kelley & Gavin, Alexander City, for appellants.

      Oakley Melton, Jr. of Melton & Espy, P. C., D. Eugene Loe, Montgomery, for appel-lees.

      . JONES, J., sitting for BLOODWORTH, J., has listened to the tape recording of oral argument.

   ALMON, Justice.

This case involves the construction to be placed on the last will and testament of Laura V. Sankey who died in May of 1977.

Her will was admitted to probate in the Probate Court of Montgomery County and the estate was subsequently removed to the Circuit Court. The First Alabama Bank of Montgomery, as executor and trustee, filed a petition requesting that the Circuit Court construe the will and enter a declaratory judgment determining who are the ultimate beneficiaries of a trust established in the will.

The testatrix left the following heirs at law and next of kin surviving her: Merle Carr, a niece; Beth Lockett, a niece; Has-kell Sankey, a nephew; and the following grandnieces and grandnephews: Kim Carr Dunn, Kay Carr Butts, Warren Carr, Lee Lockett, Jay Sankey, Jan Sankey, Paul San-key, and Peter Sankey. Each of the grandnieces and grandnephews was under the age of twenty-one at the time the will was executed. Each of the nieces and the nephew were over the age of forty at the time the will was executed.

Under Item III of the will she created a trust providing for certain payments to her brother, Leonard Sankey, since deceased, and his wife, Lottie Sankey, during their lives. The will also provided that:

C. Upon the death of Leonard Sankey and Lottie Sankey, the Trustee shall then divide the remaining principal of said Trust Estate in equal shares to such of my nephews and nieces as shall then be living. The Trustee shall retain control of the assets of said Trust during the minority of each nephew and niece and shall pay over to said nephew and niece their share upon them reaching age 21. The Trustee shall have the authority, however, to pay college educational expenses of any nephew or niece desiring such assistance prior to the age of 21 years.
IV. The Trust Estate herein created shall terminate upon the occurrence of the youngest nephew or niece living at the time of my death, reaching the age of 21 years.

The question presented to the trial court and to this Court is whether the nieces and nephew who are second generation Sankeys are the ultimate beneficiaries under the trust, or whether the grandnieces and grandnephews who compose the third generation are the ultimate beneficiaries.

The trial court, after taking evidence ore tenus, construed the will in favor of the grandnieces and grandnephews, reasoning that:

Although the foregoing described minor children were not literally the nieces and nephews of the Testatrix, it is clearly apparent to this Court that the provisions of her Will relating to the minority of the nephews and nieces refer to the minor children who were actually her grandnephews and grandnieces and at the very least such provisions create an ambiguity in the Will and parol evidence was admissible to show the intention of the Testatrix at the time she caused the Will to be prepared and at the time she executed the Will.
The Court must therefore ascertain the intention of the Testatrix. If the Testatrix had been referring to her actual nieces and nephews reaching the age of 21 years, payment of educational expenses of such nieces and nephews prior to the age of 21 years and the termination of the Trust upon the youngest nephew or niece reaching the age of 21 years, such provisions would be totally meaningless, null, void and oft¡no force and effect whatsoever since the actual nieces and nephews of the Testatrix were all over the age of 40 years when the Will was made and executed on December 13,1973. The Court finds that the intention of the Testatrix as expressed in the Will in connection with the existing circumstances known to the Testatrix at the time of the drafting and execution of her Will was for the beneficiaries of the Trust created by her Will to be the minor children described above. In interpreting doubtful or ambiguous expressions in a Will, the Court may consider the condition of the Testatrix’s family and estate to ascertain her intention. Some cases have held that the term nephew may include grandnephews. It is also pertinent to consider the language- of the Will in its entirety in connection with existing circumstances known to the Testatrix at the time of the drafting of her Will and to also consider her relevant declarations at or about the time of execution of the Will. The attorney who prepared the Will in this case testified that the Testatrix described and referred to her grandnieces and grandnephews as her “nieces and nephews” and this was the group of minor children who she intended to be beneficiaries of her Trust. The intention of the Testatrix is always the pole-star in construction of Wills and the cardinal rule is to give effect to the intention of the Testatrix if not prohibited by law. Conflicting clauses in a Will must if possible be so reconciled as to make each operative, but if this is not possible, latter clauses must prevail.

Two nieces, Merle Carr and Beth Lockett bring the appeal.

Appellants contend the court erred in allowing parol testimony to be admitted when the plain language of the will made the nieces and nephew the principal beneficiaries. Their argument overlooks the law regarding latent ambiguity of instruments. In the recent case of Jacoway v. Brittain, 360 So.2d 306 (Ala.1978), this Court stated that:

The law says that where a latent ambiguity exists in a will, the court may resort to extrinsic evidence in ascertaining the intent of the testator. Perdue v. Roberts, 294 Ala. 194, 314 So.2d 280 (1975).
A latent ambiguity may arise in the identification of or application to the property or subject matter as described or bequeathed. See Wiley v. Murphree, 228 Ala. 64, 151 So. 869 (1933). See also, Achelis v. Musgrove, 212 Ala. 47, 101 So. 670 (1924).
A latent ambiguity is to be distinguished from a patent ambiguity. A patent ambiguity is not a true ambiguity; it is merely confusion created on the face of the will by the use of defective, obscure or insensible language. On the other hand, a latent ambiguity occurs where the language is clear and intelligible, but when considered in light of certain extraneous facts, it takes on a multiple meaning. . . .

This is a classic case of latent ambiguity, and of course it goes without saying that where such an ambiguity exists parol evidence is admissible to determine the intent of the testatrix.

In Cooper v. Birmingham Trust & Savings Co., 248 Ala. 549, 28 So.2d 720 (1947), the following rule was set forth:

The usual and ordinary meaning of child does not include grandchild. It does include a grandchild in two instances (1) when it is necessary to make the will operative, and (2) when it clearly appears that the testator intended to use the expression so as to include grandchildren. Benners v. First National Bank, 247 Ala. 74, 22 So.2d 435; Spencer v. Title Guarantee Loan & Trust Co., 222 Ala. 485, 132 So. 730 (a different case and a different instrument) 222 Ala. 221, 132 So. 32; Wilson v. Rand, 215 Ala. 159, 110 So. 3.

See Jesseph v. Leveridge, 205 Ark. 665, 170 S.W.2d 71 (1943); In re Horton’s Estate, 68 A.2d 658, 5 N.J.Super. 518 (1949); and Bank of New York v. Shillito, 14 N.Y.S.2d 458 (1939), for cases in other jurisdictions to the effect that the terms “nieces” and “nephews” include grandnieces and grandnephews where the intention of the testatrix is manifest.

The attorney who drafted the will testified that the testatrix referred to her nieces and nephew as “the children” and referred to her grandnieces and grandnephews as her “nieces” and “nephews.” Admittedly, there was testimony of other witnesses contrary to this, but conflicts in the evidence are to be resolved by the trial judge. There was other testimony in the record from which the trial judge could have reasonably concluded that the testatrix intended to exclude her nieces and nephew. She had previously been engaged in litigation with Beth Lockett and her husband, Roy Lockett. Additionally, she had made loans to Roy Lockett and Haskell Sankey which had not been repaid.

We are of the opinion that the judgment appealed from is due to be and it is hereby affirmed.

AFFIRMED.

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


author: FAULKNER, Justice.

text:
    Samuel Marks BOYKIN, III, etc., et al. v. FIRST ALABAMA BANK OF BIRMINGHAM et al. (two cases). M. Wayne WHEELER, etc. v. FIRST ALABAMA BANK OF BIRMINGHAM et al.
    78-611, 78-612 and 78-637.
    Supreme Court of Alabama.
    May 23, 1980.
    Alex W. Newton of Hare, Wynn Newell & Newton, James L. North of North, Has-kell, Slaughter, Young & Lewis, Birmingham, for appellants Samuel Marks Boykin, III, etc., et al.
    J. H. Crow, III, Birmingham, for appellant M. Wayne Wheeler, etc.
    Reid B. Barnes and John E. Grenier of Lange, Simpson, Robinson & Somerville, Birmingham, for appellee First Alabama Bank of Birmingham.
    A. Key Foster, Jr. of Balch, Bingham, Baker, Hawthorne, Williams & Ward, Birmingham, for appellee Ingalls Iron Works Co.

      J. Michael Rediker and Thomas A. Ritchie of Ritchie, Rediker & Warren, Birmingham, for appellee Elesabeth Ingalls Gillet.
    Wm. Bew White, Jr., Hobart A. McWhorter, Jr. and W. Braxton Schell, Jr. of Bradley, Arant, Rose & White, Birmingham, for appellee Barbara I. Shook.
   FAULKNER, Justice.

These are joint appeals from orders dismissing a petition for affirmative relief, a motion for interim fees, and approving a partial accounting and settlement of the Ingalls Trust. The appeals are dismissed.

First Alabama Bank as a trustee, filed a petition for partial settlement of several of the Ingalls Trusts indicating a nearly complete disbursal of all cash, principal and income, coming into the trusts during the accounting period — September 11, 1962 to September 30, 1976 — to the two primary beneficiaries Elesabeth Ingalls Gillet and Barbara Ingalls Shook. They received $7,335,762.67 during the period of the partial settlement and $3,296,270.26 from September 30, 1976 to December 31, 1978.

Appellant Samuel Marks Boykin, III, son of Elesabeth Gillet, and a contingent beneficiary of the trusts, never filed any response to the petition for a settlement and accounting, and presented no evidence, cross-examined no bank witnesses, and in no way challenged the accounting presented by the trustees at the hearing held on April 17, 1979. Appellant Wayne Wheeler, as guardian ad litem for the unborn descendants of Robert Ingalls, Sr., did not consent to the accounting but did not raise any substantial objection to the accounting from a mathematical standpoint. He did object in his prayer for affirmative relief to certain discretionary payments to the beneficiaries under Trusts “E” and “F” which were included in the accounting. He alleged breaches of fiduciary duty by making payments to an unnamed beneficiary alleged to be a habitual user, to excess, of alcohol, and whose condition was known to the Trustees or should have been known, as well as by making payments to both of the beneficiaries who had wastefully dissipated the funds paid to them. He further contended that there was a breach of fiduciary duty by the Trustees in the setting of a dividend policy which was harmful to the worth of Ingalls Iron Works Company and its stock. In connection with his prayer, Wheeler filed a motion for the award of interim fees and expenses to himself as guardian ad litem, asserting he would be severely hampered in his presentation of the alleged breaches of fiduciary duty if he could not afford the substantial discovery necessary to establish the breaches.

On April 17,1979, Mrs. Shook, in response to Wheeler’s pleadings, filed a motion to dismiss, and a motion pursuant to ARCP 11, alleging that Wheeler’s pleadings contained false allegations interposed merely for delay, and that the allegation charging her or Mrs. Gillet to be a habitual user of alcohol was due to be stricken as false and a sham. At the hearing on April 17, a senior trust officer of the bank testified regarding the accounting and Wheeler’s attorney was called to testify regarding the Rule 11 motion. This examination was stopped and depositions were set up. The various attorneys to be deposed filed motions for protective orders. None of the depositions was taken.

Subsequent to these proceedings, Wheeler contends he learned that the trial judge intended to rule as a matter of law the trustees had unfettered discretion to make disbursements from the trusts, and that there was no breach of fiduciary duty. Wheeler prepared an order to that effect. The order also expunged from the record the Rule 11 motions of Mrs. Shook, and Mrs. Gillet, and had the taking of Wheeler’s deposition enjoined.

On April 23, there was a hearing regarding the order prepared by Wheeler. On that date, the trial judge indicated that the proposed order had been disseminated to the parties, and that there was no objection to it. Wheeler and the attorneys for Boy-kin III entering no objection to the order, the trial court approved, and entered it. Wheeler’s prayer for affirmative relief and motion for fees were denied. The accounting order was entered on April 24 without objection. Boykin III and Wheeler appealed. The Bank, Mrs. Shook, and Mrs. Gillet filed a motion to dismiss or strike the appeal.

We are asked to deny the motion to dismiss the appeal, to hold that the trial court erred in dismissing the guardian’s prayer for affirmative relief on the ground that the trustees had broad discretion to make distribution of trust assets, and erred in denying his motion for an award of partial fees and expenses.

Although formal exceptions to adverse rulings and to objectionable orders by the trial court are no longer required under our procedural rules, ARCP 46 provides:

“ . . . for all purposes for which an exception has heretofore been necessary it is sufficient that a party, at the time the ruling or order of the court is made or sought, makes known to the court the action which he desires the court to take or his objection to the action of the court and his grounds therefor.”

If no objection was made at trial, the party who now attempts to oppose the trial court’s ruling or order has nothing about which he may complain on appeal. Alabama Power Co. v. Taylor, 293 Ala. 484, 306 So.2d 236 (1975); Hollingsworth v. Wright, 369 So.2d 18 (Ala.Civ.App. 1979); Brothers v. Brothers, 351 So.2d 924 (Ala.Civ.App. 1977).

Attorneys for Boykin III never filed any response to the petition for a settlement and accounting, did not join in the guardian’s prayer for affirmative relief which asserted that the trustees had made improper distribution from the trusts’ assets, and presented no evidence nor cross-examined any bank witnesses at the April 17 hearing. They in no way challenged the accounting presented at that hearing and did not object to either the April 23 (amended order of April 20) or April 24 orders entered by the trial judge. Thus, they have no basis for an appeal.

Wheeler, the guardian, raised no objection to the accounting from a mathematical standpoint. While he filed a prayer for affirmative relief as a part of the accounting proceeding asserting that the trustees breached their fiduciary duty by making certain distributions, he drew up the April 23 order (the amended order of April 20) signed by the trial judge dismissing his prayer for affirmative relief as follows:

THE COURT: The main matter for consideration this morning — these other matters are properly brought to the attention of the Court and discussed. But the main matter is that of a proposed order which has been filed with the Court by the Guardian Ad Litem for the unborn children and based on a petition, special petition, brought by that Guardian Ad Litem. And the Court intends to sign that order. It has been disseminated among counsel and there is no objection to it.
(Form of Order executed by the Court and dated April 20, 1979). [Emphasis added.]

Wheeler also did not object to the entry of the accounting order on April 24. Thus, we also determine that Wheeler has no basis for an appeal, having drawn up an order contrary to his interest and neither objecting to its entry nor the entry of the accounting order.

We further note that use of the prayer for affirmative relief as an attempt to challenge the dividend policy of the In-galls Iron Works Company was not the correct vehicle. Initially, this court has stated that it will not interfere with a corporation’s dividend policy, a management function of the directors, unless there has been fraud, abuse of discretion, or misappropriation of corporation funds, none of which was established here. Kohn v. Birmingham Realty Co., 352 So.2d 834 (Ala.1977). The proper way to have challenged the dividend policy was through a shareholder’s derivative suit pursuant to ARCP 23.1; however, Wheeler had no standing to bring such a suit as the representative of contingent beneficiaries who did not have an interest that could have been injured by the exercise of the directors’ judgment. Cf. Hoglan v. Moore, 219 Ala. 497, 122 So. 824 (1929).

The appeals are DISMISSED.

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


text:
    SEABOARD COAST LINE RAILROAD COMPANY, a corp. v. Roy W. YOW.
    78-711.
    Supreme Court of Alabama.
    May 23, 1980.
    L. Vastine Stabler, Jr., Michael C. Quillen and William K. Thomas of Cabaniss, Johnston, Gardner, Dumas & O’Neal, Birmingham, for appellant.
    James H. Wettermark and Frank O. Burge, Jr., Birmingham, for appellee.
   FAULKNER, Justice.

Yow, an employee of Seaboard, was injured while working in its yard in Charlotte, North Carolina. He brought suit under the Federal Employers Liability Act for an alleged violation of the Safety Appliance Act, specifically, the Coupler Act, 45 U.S.C. § 2. After the trial, the trial judge granted Yow’s motion for a directed verdict. The jury received the case only on the issue of damages, and returned a verdict of $75,-000.00. We reverse and remand.

Seaboard’s appeal alleges three errors committed by the trial judge. First, that the directed verdict on the question of liability was improper; second, that the judge, at Seaboard’s request, should have charged the jury that any award of damages in an FELA case is not subject to federal or state income taxes; and third, that when Yow offered only a part of a doctor’s deposition into evidence, Seaboard was entitled to introduce other relevant portions of the deposition.

After this case was argued before this Court, the United States Supreme Court rendered its decision in Norfolk & Western Ry. Co., - U.S. -, 100 S.Ct. 1667, 64 L.Ed.2d 250 [1980], and held that it was error for a trial judge to refuse requested instructions that an award of damages in an FELA case was not subject to federal taxation. The majority of that Court bottomed their holding by saying, “It is entirely possible that the members of the jury may assume that a plaintiff’s recovery . . . will be subject to federal taxation, and that the award should be increased substantially in order to be sure that the injured party is fully compensated.” On the authority of Norfolk & Western Ry. Co., the judgment is reversed for a new trial. The remaining issues presented for review are pretermitted.

REVERSED and REMANDED.

TORBERT, C. J., and MADDOX, AL-MON and EMBRY, JJ., concur.