author: BOUTALL, Judge.

text:
    LOUISIANA STATE EMPLOYEES’ RETIREMENT SYSTEM v. CAMPO REALTY COMPANY, INC.
    No. 10048.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 4, 1979.
    On Rehearing March 11, 1980.
    William J. Guste, Jr., Atty. Gen., Warren E. Mouledoux, First Asst. Atty. Gen., Louis M. Jones, Asst. Atty. Gen., Louisiana Dept, of Justice, New Orleans, for Louisiana State Employees’ Retirement System, plaintiff-appellant.
    Jacob L. Karno, Metairie, for Campo Realty Co., Inc., defendant-appellee and Robertson Factories, Inc., intervenor and appel-lee on rehearing.
    Karno & Hoppe, Metairie, for Robertson Factories, Inc., intervenor and appellee on rehearing.
    Before GULOTTA, BOUTALL and SCHOTT, JJ.
   BOUTALL, Judge.

This case involves recognition of a vendor’s lien and privilege on movable property sold along with immovable property under foreclosure by a mortgage holder.

The Louisiana State Employees’ Retirement System filed a petition for executory process to seize and sell immovable property, namely the International American Motor Inn, along with the movable property, under a mortgage which consisted of a conventional mortgage of the immovable property and a chattel mortgage on the movable property inside the hotel. A number of other creditors of the mortgagor, Campo Realty Company, Inc., intervened claiming various liens and privileges arising out of the sale of the hotel equipment and services.

The record indicates that these interve-nors had entered the case for other purposes at some other time, but that they filed this intervention one-half hour prior to the scheduled sale, on September 15, 1976 asking for recognition of their vendor’s privilege and a separate appraisement and sale of the movable property in question. Intervenors did not seek injunctive relief, but instead asked for a rule nisi to show cause why a separate appraisement should not be held, why the movables should not be sold separately from the immovable property, and why the vendor’s privilege should not be ranked superior to other claims against the property. The hearing was set for September 29, 1976.

The rule was ultimately heard on November 8, 1976. On May 2, 1978 judgment was handed down which held that the privilege of one of the intervenors, Robertson Factories, Inc., was valid and primed the chattel mortgage. This claim involved drapes and valances. The judge ordered payment to Robertson Factories in the amount of $34,-344.33, plus interest and costs out of the proceeds of the sale. All other claims were held to rank after the chattel mortgage and to have lost the privilege. The only question before us is the appeal by the State Retirement System from the judgment awarded to Robertson Factories, Inc.

A consideration of the evidence in the record convinces us that the privilege of Robertson Factories as to the drapes and valances was valid and would have primed the chattel mortgage. The record does not support appellant’s contention that the privilege was lost because the property was sold by the original purchaser, nor does the evidence support the argument that the property has become immovable by destination and cannot be the subject of a vendor’s privilege. We find, however, that the vendor’s privilege was lost by the absence of a separate appraisement of the movable property before the sale.

Civil Code Article 3228 reads as follows:

“Art. 3228. But if he allows the things to be sold, confusedly with a mass of other things belonging to the purchaser, without making his claim, he shall lose the privilege, because it will not be possible in such a case to ascertain what price they brought.”

A long standing line of jurisprudence in Louisiana has applied this article in situations like the present one to hold that the vendor’s privilege is lost when the holder of the privilege allows the movables to be sold in a lump along with other items without separate appraisement. Caldwell v. Laurel Grove Company, 153 So. 17 (La.1934); Weber v. Press of N. H. Cornay, Inc., 144 So.2d 581 (La.App. 4th Cir. 1962).

We find that Robertson Factories did not properly make out its claim by the filing of an intervention one-half hour before the judicial sale. Article 1092 of the Code of Civil Procedure gives a third person claiming a privilege of property seized the right to assert his claim by intervention. The article goes on to state:

“ * * * When the intervener claims a mortgage or privilege only on part of the property seized, and the intervention is filed prior to the judicial sale, the court may order the separate sale of the property on which the intervener claims a mortgage or privilege; or if a separate sale thereof is not feasible or necessary, or the intervener has no right thereto, the court may order the separate appraisement of the entire property seized and of the part thereof on which the intervener claims a mortgage or privilege.”

Because of the late filing, it was impossible to order separate appraisement or sale without enjoining the impending sale. The intervenors did not, however, petition the court for an injunction or show what the appraised value might be either before the sale or at the later hearing. In light of the above jurisprudence it would set an unwise precedent for this court to allow the privilege to continue even though the intervenor does not take proper steps to preserve it. The Intervenor gains an unfair advantage by the lack of a separate appraisement.

The judgment awarded Robertson Factories full value of the drapes and valances at the time of the original sale agreement. On the day of the judicial sale, the items had been in use for more than 2 years. In order to make out a claim for which relief may be granted, the intervenor must not only prove the existence of his privilege, but also the amount to which he is entitled. Since no separate appraisement was made before the judicial sale and since no evidence appears in the record as to the value of the movables on the date of the judicial sale, we cannot grant relief to the intervenor. We note that intervenor’s privilege does not allow him the original sale price of the movables but only the right to be paid out of the proceeds of the Sheriff’s sale the amount realized from the movables which stood as security under his privilege. We cannot allow a claimant to obtain a more favorable result by failing to properly assert his claim than he would have had he properly asserted it.

For the above reasons, the judgment in favor of intervenor Robertson Factories, Inc. is reversed and judgment is entered denying their claim from the proceeds of the sale. All costs of both courts to be assessed against Robertson Factories, Inc.

REVERSED AND RENDERED.

ON REHEARING

We granted partial rehearing because of the possibility of establishing a separate value on the privileged articles. We are convinced that it is not possible to establish either the value of the articles or the price that they may have brought at the judicial sale.

Accordingly, we now reinstate and approve our original decision. At the same time we offer clarification of a particular portion of our opinion. In our discussion of the timeliness of filing the intervention just prior to the judicial sale, we stated:

“Because of the late filing, it was impossible to order separate appraisement or sale without enjoining the impending sale.” We do not say that an intervenor is or was required to enjoin the sale in order to get separate appraisement. We simply say that an appraisement could not be made in the time (one-half hour) between filing this intervention and the scheduled time of sale.


source: Caselaw Access Project

author: DOUCET, Judge.

license: Public Domain

text:
    Sylvia C. BORDELON, Plaintiff-Appellee, v. SAFEWAY INSURANCE COMPANY, and Kenneth P. Jouglard, Defendants-Appellants.
    No. 7415.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 6, 1980.
    Rehearing Denied April 2, 1980.

      Dean, Lomenick & Seemann, G. Frederick Seemann, Lafayette, for defendants-appellants.
    Donald R. Wilson and John R. Contois, Marksville, for plaintiff-appellee.
    Before FORET, CUTRER and DOUCET, JJ.
   DOUCET, Judge.

Sylvia C. Bordelon brought this suit for damages individually and in behalf of her minor daughter, Dewanda Lachney. Defendants, Kenneth P. Jouglard and Safeway Insurance Company, appeal a judgment of the district court rendered against them in solido and in favor of plaintiff, awarding a total of $16,182.25 in damages.

The facts are that plaintiff’s daughter, Dewanda Lachney, was injured on April 1, 1978 when she fell from a moving automobile, which was owned and being driven by Kenneth P. Jouglard. Dewanda, who was thirteen years old at the time, fell from Jouglard’s car onto a hard-surfaced road in Avoyelles Parish, Louisiana. As a result, she lost three front teeth and sustained lacerations and contusions of her gums, lips, face, knees and abdomen. In addition, she suffered damage to her upper jaw.

The witnesses at the trial presented two substantially different versions of the circumstances surrounding the accident. It was undisputed that Jouglard, who was eighteen years old at the time, had taken Dewanda, her sisters, Christine Lachney and Brenda Lachney, and a friend, Pamela Ducote, to a swimming hole near their home. The ages of these girls ranged from twelve to fifteen. After swimming for some time, the group decided to go and pick up some friends who lived nearby.

According to the girls, they all got into Jouglard’s car. Jouglard, Christine Lach-ney and Dewanda were seated in the front with Dewanda on the far right against the passenger door. Jouglard was driving approximately 30 to 40 miles per hour down a winding, asphalt road. As they rounded a curve to the right, the door suddenly opened and Dewanda fell out of the car.

Plaintiff contends that the door opened because it contained a defect, which made it difficult to close. At the trial, a stipulation was entered into whereby the parties agreed that an expert affiliated with General Motors Corporation had examined the door and found that although the door latch and locking mechanism were in good working order, the hinges were sprung. The girls also testified that there was a wire connected to a stereo cassette or radio, which ran through the hinges, making the door more difficult to close. Jouglard, on the other hand, testified that the wire was not there at that time and that the door closed easily.

After the accident, Jouglard and Brenda Lachney took Dewanda to a local hospital, where Brenda informed the hospital staff that the accident had happened as described above. Jouglard, who was present at the time, did not protest or challenge her story. On April 18, 1978, Jouglard gave a statement to a representative of Safeway Insurance Company, which was consistent with the testimony of the girls. However, on May 26,1978, Jouglard gave a second statement to the representative of the insurance company in which he related a different version of how the accident took place. His testimony at the trial agreed with the second statement.

Jouglard testified that Dewanda, Brenda and Pamela were riding on the hood of his car when Dewanda fell. He claimed that he was driving 10 to 15 miles per hour and that he had rounded the curve and was going straight when she fell. His testimony was corroborated by Mrs. Beryl Guillot, who testified that she lives near the area where the accident took place and that she saw the girls riding on the hood of the car. She also testified that she saw Dewanda fall from it.

After taking the matter under advisement and evaluating the credibility of the various witnesses, the trial judge found that Dewanda was riding inside the car when she fell and that the fall resulted from a defect in the door, which caused it to unexpectedly open. He further found that Jouglard was negligent in (1) failing to warn his minor passengers of the defective door, (2) failing to supervise the closing of the defective door, (3) allowing three passengers to crowd into the front seat when he knew that the passenger door was defective, and (4) operating his vehicle at speeds that caused his guest passenger to fall against a door that he knew to be defective. Defendants’ arguments that Dewanda was contributorily negligent and/or had assumed the risk was rejected.

Judgment was rendered against Jouglard and his insurer, Safeway Insurance Company, in solido and in favor of plaintiff in her individual capacity in the sum of $1,182.25 for past medical expenses. Judgment was also rendered against both defendants in solido and in favor of plaintiff in her capacity as administrator of Dewanda Lachney’s estate in the sum of $15,000.00 for the pain and suffering and mental anguish associated with the child’s injury and permanent disfigurement.

The issues raised by defendants on appeal are whether the trial court erred in (1) failing to dismiss plaintiff’s suit due to her lack of procedural capacity to sue, (2) finding that Jouglard was negligent and that plaintiff was not barred from recovering because of Dewanda Lachney’s contributory negligence and/or assumption of the risk, (3) awarding plaintiff $1,182.25 for medical expenses, and (4) finding that Safeway Insurance Company is solidarily liable with Jouglard.

1.

Plaintiff testified at the trial that Dewanda’s father is deceased and that she had not qualified as the child’s natural tu-trix in accordance with LSA-C.C.P. Art. 4061. Defendants contend that she is, therefore, not the proper plaintiff to sue to enforce the rights of this unemancipated minor under LSA-C.C.P. Art. 683. We agree, however, we also note that an objection to a party’s lack of procedural capacity must be raised through the dilatory exception prior to answer or judgment by default. LSA-C.C.P. Arts. 926, 928. The record reflects that although defendants filed the appropriate exception, it was filed at the same time as their answer to plaintiff’s petition. Because the exception was not filed prior to the answer, the objection urged by it was waived. Nicosia v. Guillory, 322 So.2d 129 (La.1975). Accordingly, we find no error in the trial court’s refusal to dismiss plaintiff’s suit.

2.

As we noted earlier, the trial court’s conclusion that Jouglard was negligent was based on its findings that the door was defective and that Dewanda was inside the car when she fell. Defendants contest those findings, arguing that they are not supported by a- preponderance of the evidence. We disagree. The objective evidence relevant to this issue was minimal, and the testimony was conflicting. It is clear from the trial judge’s written reasons for judgment that he did not believe the testimony of Jouglard or Mrs. Guillot. Given that evaluation of the credibility of the witnesses, which we do not find to be unreasonable, the evidence adequately supports the trial court’s findings.

The same is true of the trial court’s conclusion that Dewanda was not contributorily negligent and had not assumed the risk. We cannot say that these findings are clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). They will, therefore, not be disturbed.

3.

Defendants contend that the trial court erred in awarding plaintiff the sum of $1,182.25 for past medical expenses incurred in the treatment of Dewanda’s injuries. They do not dispute that plaintiff proved expenses in the amount of $439.25, however, they argue that there was no proof as to the remainder of the amount awarded. The record reveals that plaintiff attempted to establish the expenses reflected in the disputed portion of the award through the testimony of her attorney. That testimony was objected to by defendants and was heard as an offer of proof.

Counsel for plaintiff testified that he recommended that Dewanda go to Dr. Bruce Phillips, an oral surgeon, because of her injuries to her teeth and mouth. He then contacted Dr. Phillips and informed him that he was an attorney representing her and asked that the bills be sent to him. He identified a bill of $450.00, which he received from Dr. Phillips. It was filed in the record as PR-8. Counsel also testified that he contacted Dr. Francis Laborde about getting false teeth to replace Dewanda’s missing front teeth, since she had been without them for several months. Dr. La-borde’s bill of $350.00 was also sent to him. It was identified by him and filed in the record as PR-9.

It is clear from the record that defendants’ objection was based on the fact that the testimony came from an attorney participating in the litigation. Defendants’ attorney informed the trial court that there was a prior case in which the Louisiana Supreme Court had held that such testimony is impermissible. He was unable to furnish a citation at that time, however, and the offer of proof was made in lieu of a ruling on the objection at that point.

The citation to that case does not appear in counsel’s post-trial memorandum or in the brief that he submitted to this court. However, in making his objection, he supplied the name of the attorney involved, and based on the court reporter’s phonetical spelling of it, we think that he may have been referring to the case of Gutierrez v. Travelers Insurance Company, 358 So.2d 349 (La.App. 4th Cir. 1978). That case involved a workmen’s compensation claim for death benefits. The claimant’s attorney, who was his step-son and the deceased’s child, was the material witness for the claimant. Holding that the attorney’s representation of the plaintiff while testifying as his material witness was a clear violation of the Code of Professional Responsibility , the court remanded the matter for a new trial, advising the plaintiff to secure another attorney from a different firm, so that his step-son could properly testify in his behalf.

The extreme circumstances giving rise to the court’s decision in that case are clearly not present in the instant one. The fact that Dewanda was treated by these physicians was established by the testimony of other witnesses. Furthermore, defendants have not questioned the accuracy of these bills, and they do not appear to be clearly excessive.

Due to the serious ethical considerations involved, we cannot approve the methods employed by plaintiff’s attorney. We believe that some means of avoiding the conflict should have been found, although his actions appear to have been well-intended. It is evident from his testimony that he contacted the physicians in order to secure the prompt treatment of Dewanda’s injuries and the curtailment of the mental anguish produced by the absence of her front teeth. In view of the fact that plaintiff has limited means and was allowed to bring this suit in forma pauperis, she may well have had difficulty securing these much needed services for Dewanda had it not been for her attorney’s intervention.

Under these circumstances, we do not believe that the trial court erred by considering this evidence in rendering judgment, despite the fact that some other form of proof would have been preferable. Although attorneys are bound to observe the rules contained in the Code of Professional Responsibility, we know of no evidentiary rule excluding the testimony of attorneys in this kind of situation. Moreover, the facts simply do not establish that the evidence was so untrustworthy or questionable as to warrant its exclusion to plaintiff’s detriment.

4.

Safeway Insurance Company argues that the trial court erred in rendering judgment against it because of the lack of any evidence of the existence of insurance coverage. In her petition, plaintiff alleged that Jouglard was insured by Safeway against his liability to her for the negligent operation of his automobile. Defendants responded with a general denial, and further stated that the contract of insurance entered into by Safeway and Jouglard is the best evidence of the contractual obligations that exist between them. The insurance policy was never introduced into evidence, and we find no other evidence in the record to establish liability on the part of Safeway. Plaintiff had the burden of proving the insurance coverage on which her claim against Safeway is based. Turner v. Ewing, 255 La. 659, 232 So.2d 468 (1970). Since she failed to do so, the trial court should not have held Safeway liable. Richardson v. Department of Highways, 345 So.2d 985 (La.App. 2nd Cir. 1977); Stewart v. Liberty Mutual Insurance Company, 315 So.2d 337 (La.App. 1st Cir. 1975).

For these reasons, the judgment is affirmed insofar as it renders judgment in favor of plaintiff and against defendant, Kenneth P. Jouglard. It is reversed insofar as it renders judgment against defendant, Safeway Insurance Company, and it is ordered, adjudged and decreed that plaintiff’s demands against defendant, Safeway Insurance Company, are dismissed.

All costs of this appeal are assessed to the defendants.

AFFIRMED IN PART; REVERSED IN PART, AND RENDERED.

      . Louisiana Code of Professional Responsibility, Articles of Incorporation, Louisiana State Bar Ass’n, art. XVI, LSA-R.S. 37, ch. 4, app. The Ethical Considerations and Disciplinary Rules cited by the Court were as follows:
      “EC 5-9. Occasionally a lawyer is called upon to decide in a particular case whether he will be a witness or an advocate. If a lawyer is both counsel and witness, he becomes more easily impeachable for interest and thus may be a less effective witness. Conversely, the opposing counsel may be handicapped in challenging the credibility of the lawyer when the lawyer also appears as an advocate in the case. An advocate who becomes a witness is in the unseemly and ineffective position of arguing his own credibility. The roles of an advocate and of a witness are inconsistent; the function of an advocate is to advance or argue the cause of another, while that of a witness is to state facts objectively.”
      “EC 5-10. Problems incident to the lawyer-witness relationship arise at different stages; they relate either to whether a lawyer should accept employment or should withdraw from employment. Regardless of when the problem arises, his decision is to be governed by the same basic considerations. It is not objectionable for a lawyer who is a potential witness to be an advocate if it is unlikely that he will be called as a witness because his testimony would be merely cumulative or if his testimony will relate only to an uncontested issue. In the exceptional situation where it will be manifestly unfair to the client for the lawyer to refuse employment or to withdraw when he will likely be a witness on a contested issue, he may serve as advocate even though he may be a witness. In making such a decision, he should determine the personal or financial sacrifice of the client that may result from his refusal of employment or withdrawal therefrom, the materiality of his testimony, and the effectiveness of his representation in view of his personal involvement. In weighing these factors, it should be clear that refusal or withdrawal will impose an unreasonable hardship upon the client before the lawyer accepts or continues the employment. Where the question arises, doubts should be resolved in favor of the lawyer testifying and against his becoming or continuing as an advocate.”
      “DR 5-101. Refusing Employment When the Interests of the Lawyer May Impair His Independent Professional Judgment.

      (A) Except with the consent of his client after full disclosure, a lawyer shall not accept employment if the exercise of his professional judgment on behalf of his client will be or reasonably may be affected by his own financial, business, property, or personal interests.
      (B) A lawyer shall not accept employment in contemplated or pending litigation if he knows or it is obvious that he or a lawyer in his firm ought to be called as a witness, except that he may undertake the employment and he or a lawyer in his firm may testify:
      (1) If the testimony will relate solely to an uncontested matter.
      (2) If the testimony will relate solely to a matter of formality and there is no reason to believe that substantial evidence will be offered in opposition to the testimony.
      (3) If the testimony will relate solely to the nature and value of legal services rendered in the case by the lawyer or his firm to the client.
      (4) As to any matter, if refusal would work a substantial hardship on the client because of the distinctive value of the lawyer or his firm as counsel in the particular case.”
      “DR 5-102. Withdrawal as Counsel When the Lawyer Becomes a Witness.

      (A) If, after undertaking employment in contemplated or pending litigation, a lawyer learns or it is obvious that he or a lawyer in his firm ought to be called as a witness on behalf of his client, he shall withdraw from the conduct of the trial and his firm, if any, shall not continue representation in the trial, except that he may continue the representation and he or a lawyer in his firm may testify in the circumstances enumerated in DR 5 — 101(B)(1) through (4).
      (B) If, after undertaking employment in contemplated or pending litigation, a lawyer learns or it is obvious that he or a lawyer in his firm may be called as a witness other than on behalf of his client, he may continue the representation until it is apparent that his testimony is or may be prejudicial to his client.”


author: SUGG, Justice,

text:
    The WESTERN CASUALTY AND SURETY COMPANY v. HONEYWELL, INC.
    No. 51690.
    Supreme Court of Mississippi.
    Feb. 20, 1980.
    Rehearing Denied April 2, 1980.
    Cox & Dunn, Vardaman S. Dunn, Jackson, for appellant.
    Pope & Van Slyke, J. B. Van Slyke, Jr., Hattiesburg, for appellee.
    Before SMITH, SUGG and BOWLING, JJ.
   SUGG, Justice,

for the Court:

This is an appeal from a final decree of the Chancery Court of Forrest County awarding Honeywell, Inc. a judgment for $7,728.00, plus interest against Western Casualty and Surety Company.

The sole question is whether a provision in a payment bond executed in compliance with section 31-5-1 Mississippi Code Annotated (1972), requiring a supplier of a subcontractor to give notice of his claim within 90 days after furnishing the last material, is against public policy because it requires notice by the supplier before the expiration of the time within which suit may be filed by the supplier under section 31-5-7 Mississippi Code Annotated (1972).

Sections 31-5-1 and 31-5-7 provide:

31-5-1. Any person entering in a formal contract with this state, any county thereof, municipality or any political subdivision whatsoever therein, for the construction of any building or work or the doing of repairs shall be required before commencing same to execute the usual bond with good and sufficient sureties, with the additional obligation that such contractor or contractors shall promptly make payments to all persons supplying labor or material therefor. Any person who has furnished labor or materials used therein and wherefor payment has not been made shall have the right to intervene and be made a party to any action instituted on such bond and to have his rights adjudicated in such action and judgment rendered thereon, subject, however, to the priority of the claim and judgment of the obligee. If the full amount of the liability of the surety thereof is insufficient to pay the full amount of said claims and demands, then, after paying the full amount due the obligee, the remainder shall be distributed pro rata among said intervenors. The bond herein provided for may be made by any surety company authorized to do business in the State of Mississippi.

31-5-7. When suit is instituted by any of such persons on a bond, it shall not be commenced until after the complete performance of said contract and final settlement thereof, and shall be commenced within one year after the performance and final settlement of said contract and not later. If the contractor quits or abandons the contract before its completion, suit may be instituted by any such person on said bond and shall be commenced within one year after such abandonment and not later. But said time for the institution of said action shall not begin to run until the obligee shall have made said final settlement or determined said abandonment and published notice thereof in some newspaper published in said county, or if there be none then in some newspaper having a general circulation therein.

This case was tried on a stipulation of facts which included the following. On February 1, 1974, Coast Accoustical Contractors, Inc., as prime contractor, entered into a contract with the Trustees of the Mississippi Gulf Coast Junior College District of Mississippi, as owner, for the construction of additions and alterations to buildings on the Perkinston Junior College Campus. The prime contractor furnished performance and payment bonds with Western Casualty as required by the owner and by section 31-5-1. The prime contractor entered into a contract with Mississippi Mechanical Contractors, Inc., as subcontractor. Under the terms of this contract the sub-contractor agreed to furnish and install certain items as a part of the construction project including, among others, temperature controls. The sub-contractor furnished a performance and payment bond with Summit Insurance Company of New York, as surety naming the prime contractor as obligee. The bond covered the work to be done by the sub-contractor on the construction project.

On February 4, 1974, the sub-contractor issued a purchase order to Honeywell for the purchase of temperature controls specified for the project for the stated price of $7,728. The temperature controls called for in the purchase order complied with the contract specifications and were installed and remained upon the project at the time suit was brought. The charge of $7,728 was a reasonable charge for the temperature controls.

The construction project was completed on November 1,1974, and publication of the final settlement and completion of the project required by section 31-5-7 Mississippi Code Annotated (1972) was made on August 4 and 11, 1977.

The prime contractor paid the sub-contractor in full but the sub-contractor failed to pay Honeywell for the items purchased by the sub-contractor from Honeywell.

The sub-contractor’s surety went into liquidation in New York. Honeywell learned of the New York liquidation in April, 1976, and was notified it could file a claim but did not file a claim in the New York liquidation. The time for filing claims expired September 28, 1976.

The payment bond executed by Western Casualty contained the following provision:

3. No suit or action shall be commenced hereunder by any claimant:
a) Unless claimant, other than one having a direct contract with the Principal, shall have given written notice to any two of the following: the Principal, the Owner, or the Surety above named, within ninety (90) days after such claimant did or performed the last of the work or labor, or furnished the last of the materials for which said claim is made, stating with substantial accuracy the amount claimed and the name of the party to whom the materials were furnished, or from whom the work or labor was done or performed. Such notice shall be served by mailing the same by registered mail or certified mail, postage prepaid, in an envelope addressed to the Principal, Owner or Surety, at any place where an office is regularly maintained for the transaction of business, or served in any manner in which legal process may be served in the state in which the aforesaid project is located, save that such service need not be made by a public officer.

Honeywell did not have a contract with the prime contractor or with the owner in relation to the construction project but its contract was with the sub-contractor. Honeywell did not give written notice of its claim to the prime contractor (the principal in the bond), the owner, or Western Casualty, the surety within 90 days after it furnished the last material to the sub-contractor. Honeywell gave oral notice to the owner between December 1 and December 8, 1975, that it had a claim and desired to obtain a copy of the performance and payment bond. The bond was furnished and on December 16,1975, Honeywell gave written notice of its claim to Western Casualty. Honeywell unsuccessfully attempted to collect the amount due from the sub-contractor on several occasions.

Honeywell filed suit against Western Casualty on May 12,1978, which was within the one year limitation prescribed in section 31-5-7. Western Casualty asserted as an affirmative defense the failure of Honeywell to give written notice within 90 days after it furnished the last of the materials for which claim was made. The position of Western Casualty is that the 90 days notice provision in the payment bond is reasonable, equitable, and not against public policy or contrary to law, and compliance with the notice provisions of the bond was a condition precedent which must be complied with before the liability of Western Casualty, as surety, became fixed. Honeywell states that it is required to give notice earlier under the bond than under the statute (section 31-5-7); therefore, it contends the notice provision in the bond is against public policy because it takes away its right to sue within one year after notice of final settlement by the owner by publication. The chancellor agreed with Honeywell and held the 90 day notice provision in the payment bond was repugnant to public policy as expressed in section 31-5-7.

The 90 day notice provision contained in the payment bond is a mandatory provision in federal construction contracts under the Miller Act, 40 U.S.C. § 270b. The beneficial purposes served by the provision is expressed in United States v. Thompson Construction Corp., 273 F.2d 873 (2nd Cir. 1959) as follows:

A statute which gave rights on the contractor’s bond to laborers and material-men having no contractual relations with him but which did not require timely and adequate notice to him, would lead either to double payments or to interminable delay in settlements between contractors and subcontractors to guard against these, — in either case with attendant prejudice to all concerned. (273 F.2d at 875-876)

The 90 day notice provision guards against a double payment by the general contractor and the delay which would result if the general contractor were left with no ready means of acquiring dependable knowledge that sub-contractors had not paid their suppliers or laborers, and that potential claims remained. In this case the contract was completed on November 1, 1974, publication of final settlement was not made until April, 1977, thus giving suppliers of contracts until April, 1978, to file suit. In order to protect against double payment, the prime contractor would be forced to withhold payments to his sub-contractor until the running of the statute of limitations which, in this case, would have been nearly four years. It is apparent that such procedure would cause an interminable delay in settling with sub-contractors for work performed on governmental projects in this state.

The bond in this case, was given pursuant to section 31-5-1 which requires the bond to contain the obligation “that such contractor . . shall promptly make payments to all persons supplying labor or materials therefor.” Section 31-5-1 does not include a notice provision like the Miller Act covering labor or materials supplied to a sub-contractor, neither does the statute exclude a provision for such notice, but requires only that the bond extend its coverage to all persons supplying labor or materials for the project.

The prime contractor and surety may not eliminate the coverage required by section 31-5-1 in a payment bond executed pursuant thereto. Neither does the statute prohibit them from requiring suppliers of subcontractors to give reasonable notice of their claim. The 90 day notice provision applicable to the materialmen and laborers of sub-contractors is designed to do equity and protect the prime contractor from double payment.

Although Mississippi has not addressed the question presented in this case, the same question has been presented to courts in other jurisdictions having similar statutes. New York Plumbers Specialties Co., lac. v. W. J. Barney Corp., et al., 52 A.D.2d 832, 384 N.Y.S.2d 1 (1976); R. C. Mahon Co. v. Headrich Const. Co., Inc., 69 Wis.2d 456, 230 N.W.2d 621 (1975); W. F. Thompson Const. Co., Inc., et al. v. Southeastern Palm Beach County Hospital District, 174 So.2d 410 (Fla.App.1965); Jenkins v. Gordy, 105 Ga.App. 255, 124 S.E.2d 303 (Div. 2, 1962). These cases held that notice provisions in bonds similar to the notice provision in this bond were reasonable and not against public policy, and were a condition precedent to recovery on the bond by the materialmen of a sub-contractor. The reasoning in these cases is persuasive and we adopt the conclusions therein set forth.

Although the precise question in this case is one of first impression in this state, the principle involved was considered by this Court in Aetna Life Ins. Co. v. Walley, 174 Miss. 365, 164 So. 16 (1935). Walley was a suit by a physician on an indemnity insurance policy. Walley was sued for medical malpractice by a patient who recovered judgment against him. He filed suit against Aetna to recover money paid by him to satisfy the judgment and the expenses incurred by him in defending the suit. One of Aetna’s defenses was that Walley failed to comply with clauses A, B and C of the policy. These clauses provided:

“A. Upon becoming aware of any malpractice, error or mistake, or any allegation of such malpractice, error or mistake, the Assured shall give immediate written notice thereof with the fullest information obtainable at the time to the Company, or its duly authorized agent. If claim is made on account of such malpractice, error or mistake, or allegations thereof, the Assured shall give like notice of such claim, together with full particulars. The Assured shall, at all times, render to the Company all co-operation and assistance in his power.
“Report and defense of suits.
“B. If suit is brought against the Assured to enforce a claim for damages covered by this policy, he shall immediately forward to the Company every summons or other process as soon as the same shall have been served on him, and the Company will, at its own cost, defend such suit in the name and on behalf of the Assured.
“Co-operation of Assured, Expenses.
“C. The Assured, whenever requested by the Company, shall aid in securing information and evidence, and the attendance of witnesses, and in prosecuting appeals, but the Assured shall not voluntarily assume any liability or interfere in any negotiations for settlement, or in any legal proceedings, or incur any expense or settle any claim, except at his own cost, without the written consent of the Company previously given.” (174 Miss. at 372, 164 So. at 17).

Walley recovered judgment against Aetna. On appeal we reversed and rendered judgment for Aetna, stating:

The appellee is mistaken in saying that clauses A, B, and C of the policy violate section 2294 of the Code of 1930, which provides that: “The limitations prescribed in this chapter shall not be changed in any way whatsoever by contract between parties, and any change in such limitations made by any contract stipulation whatsoever shall be absolutely null and void; the object of this statute being to make the period of limitations for the various causes of action the same for all litigants.”
The notice here required in no way affects the time within which suit must be brought on a policy, or within which notice must be given of a liability claimed to have arisen thereunder. The right of the insured to recover on this policy does not arise, if at all, until the termination of a suit against him for malpractice, and the time within which the insured must sue on the policy begins when, but not until, the termination of such a suit.
These clauses of the policy relate only to things to be done before liability thereon becomes fixed, and when such is the case. Section 2294, Code of 1930, is not violated. Berry v. Lamar Life Ins. Co., 165 Miss. 405, 142 So. 445, 145 So. 887, and Mutual Life Ins. Co. v. Hebron, 166 Miss. 145, 146 So. 445. (174 Miss. at 377, 164 So. at 19-20).

In Walley we held that the notice provisions in the insurance contract did not violate the provisions of section 15-1-5 Mississippi Code Annotated (1972) (then Section 2294 Code of 1930), because the notice provisions of the policy related only to things to be done before liability became fixed.

By analogy, the same reasoning applies to the case under consideration. The 90 day notice provision in the payment bond did not limit the time that Honeywell could bring suit under section 31-5-7 but related only to things to be done by Honeywell as a supplier of a sub-contractor before Western Casualty became liable to Honeywell. Therefore, we hold the 90 day notice provision is not repugnant to public policy as expressed in sections 31-5-1 and 31-5-7.

We are also of the opinion that the familiar principle of equity that, as between innocent persons, the one who is in the best position to protect himself should suffer any loss resulting from the default of a third party, is applicable. This doctrine is well established and was expressed in First National Bank of Jackson v. Deposit Guaranty Bank, 247 Miss. 765, 156 So.2d 814 (1963) and Railway Express Agency v. Bank of Philadelphia, 168 Miss. 279, 150 So. 525 (1933).

Honeywell knew that it had not been paid and that its customer, the subcontractor, was in default. Honeywell could easily have given notice of this default and thereby prevented loss to anyone, but Honeywell chose to remain silent and continue its efforts to collect the bill from its customer without any warning to the owner, the prime contractor, or the surety that anyone else would be called on to pay the bill until after the sub-contractor had been paid in full. The prime contractor, the owner and the surety were not aware that Honeywell had an unpaid bill. Honeywell and its sub-contractor alone knew that it had not been paid. If Honeywell had given notice, the prime contractor would have been able to deduct any money due its sub-contractor, pay the bill, and thereby prevent loss to anyone. Honeywell was in the best position to protect itself; therefore, under the doctrine above noted, should be the one to bear the loss.

We hold the 90 day notice provision was reasonable, it constitutes a necessary condition precedent to recovery by Honeywell, and it does not violate public policy as expressed in our statutes.

REVERSED AND RENDERED.

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


author: PATTERSON, Chief Justice,

text:
    Jerry Blaine WHITE, Sr. v. Charles R. McRAE.
    No. 51759.
    Supreme Court of Mississippi.
    March 19, 1980.
    Bryan, Nelson, Allen & Schroeder, John W. Chapman, Pascagoula, for appellant.
    Gibbes, Graves, Mullins, Bullock & Ferris, Ernest W. Graves, Laurel, Dixon L. Pyles, Jackson, for appellee.
    Before PATTERSON, C. J., and BROOM and COFER, JJ.
   PATTERSON, Chief Justice,

for the Court:

In the Circuit Court of Jackson County, Jerry Blaine White, Sr. filed a declaration alleging that Charles McRae negligently permitted the statute of limitations to run on a workmen’s compensation claim entrusted to him as attorney for White. McRae answered, denying professional malpractice counterclaimed for malicious prosecution, and later moved to dismiss the declaration. The court below granted the motion to dismiss, reasoning in part that White had “elected his remedies” by previously filing with the Mississippi State Bar an unsuccessful complaint against McRae based upon the same conduct giving rise to the declaration in tort.

White improvidently appealed the dismissal, and we refused to reach the merits of the case, because the pendency of McRae’s counterclaim deprived the order of the finality requisite to our jurisdiction. White v. McRae, 366 So.2d 231 (Miss.1979). On remand, however, McRae took a voluntary nonsuit on his counterclaim, thus removing the interlocutory character of the order dismissing White’s declaration.. White now appeals that order once more, this time with a final judgment conferring upon this Court jurisdiction to reach the merits. We reverse and remand for further proceedings consistent with this opinion.

We think neither principles of res judica-ta, collateral estoppel by judgment, nor election of remedies prevented White from pursuing a private tort remedy in the circuit court for money damages after failing to obtain satisfaction at the Mississippi State Bar. The statutory function of the latter tribunal is public; viz., it disciplines and in appropriate cases expels members of the bar. MCA § 73-3-301 et seq. (Supp. 1979); In Re Mississippi State Bar, 361 So.2d 503 (Miss.1978). Unlike the circuit courts of this state, it is a quasi-judicial forum at most, powerless to offer jury trials or money judgments. It follows that White’s Mississippi State Bar complaint, regardless of its ultimate disposition, had no effect whatsoever upon his right later to pursue a private remedy in the circuit court. See gen. Banes v. Thompson, 352 So.2d 812 (Miss.1977); Lumberton State Bank v. Fortenberry, 222 So.2d 384 (Miss.1969); Ready-Mix Concrete & Concrete Products Co. v. Perry, 239 Miss. 329, 123 So.2d 241 (1960); Potomac Ins. Co. of District of Columbia v. Wilkinson, 220 Miss. 740, 71 So.2d 765 (1954); Rea v. O’Bannon, 171 Miss. 824, 158 So. 916 (1935); Warriner v. Fant, 114 Miss. 174, 74 So. 822 (1917).

White’s declaration states a cause of action in negligence for which he had a statutory right to have a jury consider its factual merits. See MCA § 11-7-17 (1972).

REVERSED AND REMANDED.

SMITH and ROBERTSON, P. JJ., and SUGG, WALKER, BROOM, LEE, BOWLING and COFER, JJ., concur.


author: PER CURIAM.

text:
    RECORD DATA INTERNATIONAL, INC., et al. v. Robert Clinton NICHOLS, etc., et al.
    78-191.
    Supreme Court of Alabama.
    Dec. 21, 1979.
    Rehearing Denied March 7, 1980.

      John A. Pickens, Woodrow W. Vaughan, Jr. of Kidd, Pickens & Tate, Atlanta, Ga., William F. Murray, Jr. of Thomas, Taliafer-ro, Forman, Burr & Murray, Birmingham, for appellants.
    J. H. Crow, III, Birmingham, for appel-lees.

      . Justice Bloodworth, although not sitting at oral argument, has read and studied the briefs and listened to the tapes of oral argument.

   PER CURIAM.

This an appeal from a jury verdict in favor of Robert Nichols’ estate and Legal Messenger Service of Ala., Inc., appellees, against Record Data International, Inc., and Record Data, Inc., appellants. Appellants contend that the trial court committed numerous errors at trial and that the verdict was excessive. We affirm.

Record Data International, Inc., (RDI) and Record Data, Inc., RDI’s parent corporation, are in the business nationwide of searching and verifying official court documents. The information collected is sold to various clients, of whom the majority are apparently lending institutions. RDI entered into a franchise agreement with Robert Nichols. There is a dispute about the parties to the agreement. RDI says it entered into the agreement solely with Robert Nichols, individually. Nichols’ estate contends that the parties were RDI, Robert Nichols, and Legal Messenger Service of Alabama, Inc., a corporation which Nichols formed.

Nichols became ill and RDI sent people into Alabama to run Nichols’ business, allegedly to help the Alabama office, which, according to RDI, was in a chaotic condition. Nichols subsequently died as a result of his illness. RDI then took over the operation of the Alabama business, contending that the takeover was proper under the franchise agreement because the agreement called for termination and return of various items to RDI upon the death of Nichols.

Appellees then commenced suit against RDI alleging fraud, violation of common law copyright, interference with contracts, breach of the franchise agreement, willful trespass, and conversion. All the causes of action, except breach of contract, sought punitive damages. The issues were tried and a verdict was returned in favor of the Nichols estate and Legal Messenger Service of Ala., Inc. for $225,000.

Appellants first contend that the trial court erred in' admitting into evidence a schedule showing the consolidated tax returns on the grounds that the admission of the schedule showed Record Data, Inc.’s wealth to the jury, contrary to established Alabama law, citing Southern Life & Health Insurance Co. v. Whitman, 358 So.2d 1025 (Ala.1978).

In Southern Life the defendant’s financial position was admitted over defendant’s objection for the express purpose of aiding the jury in its assessment of punitive damages. This court noted its long standing rule that evidence of the defendant’s wealth is highly prejudicial and, therefore, inadmissible. Southern Life, supra at 1026. However, Southern Life is distinguishable from the case at bar. First, there was a timely objection in Southern Life. In the case at bar there was no objection when appellee’s attorney asked for a specific dollar amount of the gross receipts of certain subsidiaries, viz.:

“Q. What was the highest gross sales figure for any subsidiary that your company had in the year ’73, ’74? What branch?
“MR. WEAVER: Judge, we’re going to object to that in that it has no bearing and no relationship to this case nor this Alabama operation and is in no way affected or influenced by anything that’s subject to this lawsuit.
“THE COURT: In relation to the question of value I overrule.”
if: sk s}t ♦ ¡ft He
“Q. Which branch had the highest gross receipts in that particular time period?
“A. Georgia.
“Q. And how much were their gross receipts?
“A. $241,242.00.
“Q. What was the next highest gross receipts subsidiary that you see there, please, sir?
“MR. WEAVER: We object . . . on the same grounds.
“THE COURT: Overruled.”
* * if: * * *
“Q. You’re talking about Record Data of Alabama across the street here; is that the one?
“A. Yes.
“Q. How much was that figure?
“A. $9,060.00.”

As the record clearly shows, no objection was interposed when the witness was asked for specific dollar figures of gross receipts. It is our well-settled rule that a party who fails to object to matters at the trial level may not raise these matters for the first time as the basis for an appeal. Costarides v. Miller, 374 So.2d 1335, 1337 (Ala.1979). An objection must be made and a ground stated therefor or the objection and error are deemed to have been waived. Constarides, supra.

Southern Life is additionally distinguishable from the case at bar in that the evidence in Southern Life was introduced expressly to aid the jury in its determination of punitive damages. In the case at bar, the evidence was properly introduced to impeach the prior testimony of a defense witness, Bruce Felder, concerning the value of the Alabama business taken over by the defendants. It was appellants’ contention the business was worth little, if anything; the appellees have contended the business was worth a great deal.

In this respect, the facts in the case at bar are more closely in point with Cities Service Oil Co. v. Griffin, 357 So.2d 333 (Ala.1978). In Cities Service the appellant contended that the trial court committed reversible error when it permitted plaintiff’s counsel to elicit from the defendant’s witness Moore, upon cross-examination, evidence of Citgo’s 1975 gross sales and 1970 net profit. Moore had testified extensively on direct examination and “had painted a verbal portrait of the company’s poor business position.” Cities Service, supra at 343. In affirming the trial court’s ruling admitting the evidence on cross-examination, the court held, “[Bjecause Moore had painted a verbal portrait of the company’s poor business position, we fail to see how any undue prejudice resulted to it when evidence of its gross sales and net profits were elicited from the same witness.” Cities Service, supra at 343.

In the case at bar, Mr. Felder had testified, in response to a question as to “the amount that this business [the Alabama business] would be worth,” that, “It’s obviously a deficit situation.” In addition, Felder testified, when asked for a specific dollar amount of the value of the Alabama business, “We have offered eighteen hundred as payment for the fixed assets.”

In its order denying appellants’ motion for a new trial, the trial court held:

“The Court is of the opinion that the information contained in defendants’ consolidated federal income tax return was relevant to the issues presented in this case. . . . [T]he federal income tax return disclosed the revenues being received from the operation of the Alabama franchise and, therefore, provided relevant evidence as to the value of the Alabama franchise.” (Emphasis supplied.)

We cannot say that the trial court erred in this respect.

Moreover, when appellees’ attorney offered to introduce copies of the schedules, only a general objection was entered. Again, this fact is closely parallel to Cities Service, where appellant’s attorney made only a general objection to the proffered evidence. The court held there, and its holding is equally applicable here, “We have shown that this evidence was admissible, hence the general objection was insufficient for the purposes of appeal.” Cities Service, supra at 343.

Appellants next contend that the trial court erred in permitting Record Data, Inc., to be added as a defendant while trial was in progress. Appellants contend that the court should have submitted the issue of whether Record Data, Inc., was a proper defendant — under a theory of either alter ego, piercing the corporate veil, or corporation by estoppel — to the jury as a fact question. We cannot agree with this contention. In its order denying appellants’ motion for new trial, the trial court held:

“Although the Court had previously ordered the defendants to produce their federal income tax returns, the same were not produced until the trial of this cause had already begun. Examination of the consolidated federal income tax return indicated that the parent company was designated as Record Data, Inc., a corporation, and that this corporation in turn controlled a number of subsidiary corporations, one of which was designated as Record Data International, Inc., a corporation. . . . Bruce B. Felder was president and in control of all the corporations . . . and it was he who authorized and directed the conduct made the basis of the plaintiffs’ claims. In view of the fact that the plaintiffs had been unable to ascertain the name and designation- of the parent corporation until after the trial had begun, this Court under Rule 15(b) of the Alabama Rules of Civil Procedure amended the complaint to add Record Data, Inc., a corporation, as party defendant.”

Since the adoption of the Rules of Civil Procedure, we have said that amendments should be freely allowed and that trial judges must be given discretion to allow or refuse amendments. Stead v. Blue Cross-Blue Shield, 294 Ala. 3, 310 So.2d 469 (1975). The trial judge should allow a proposed amendment if it is necessary for a full determination on the merits and if it does not unduly prejudice the opposing party or unduly delay the trial. Huskey v. W. B. Goodwyn Co., 295 Ala. 1, 321 So.2d 645 (1975). We cannot say here that the trial court abused its discretion in permitting Record Data, Inc., to be joined as a party defendant. Moreover, appellants made no objection when appellees moved to amend the complaint; they cannot now contend on appeal that allowing the amendment was error. Costarides, supra. The appellants also entered no objection to the trial court’s oral charges to the jury, wherein the court submitted to the jury the question as to whether Record Data, Inc., and RDI were liable to the plaintiffs. If appellants were not satisfied with the court’s charges as given, and wanted an instruction concerning the theories of alter ego, piercing the corporate veil, and corporation by estoppel, they should have objected and offered appropriate instructions. They did not. Rule 51, ARCP provides:

“. . . No party may assign as error the giving or failing to give a written instruction, or the giving of an erroneous, misleading, incomplete, or otherwise improper oral charge unless he objects thereto before the jury retires to consider its verdict, stating the matter to which he objects and the grounds of his objection.

We hold, therefore, that appellants waived any objection to the amendment and to the oral charge given to the jury at the close of the case. Thus, appellants’ contention that the court improperly applied one of the theories of either alter ego, piercing the corporate veil or corporation by estoppel, to the case at bar, is without merit.

Appellants’ third contention is that the trial court erred in allowing Richard McCauley to testify as an expert witness. Appellants contend that McCauley did not possess the requisite knowledge, training, or education on the issue of what price one would pay for an existing, going business, that the methodology he used to value the business is not accepted practice, and that McCauley was a direct competitor of Record Data International and was biased and totally subjective in his analysis.

The question as to whether a particular witness will be allowed to testify as an expert is largely discretionary with the trial court, whose decision will not be disturbed on appeal except for palpable abuse of that discretion. Maslankowski v. Beam, 288 Ala. 254, 259 So.2d 804 (1972). The opinions of experts on any question of science, skill, trade, or like questions are always admissible; and such opinions may be given on the facts as proved by other witnesses. Maslankowski, supra.

Before McCauley testified as to his opinion of the value of the Alabama franchise, he was asked numerous questions concerning his background with RDI and concerning his own similar business in Georgia. He was properly qualified as an expert. The trial court did not err in admitting his testimony. The questions concerning the methodology McCauley used and his possible bias toward RDI were proper subjects for cross examination, but do not render his testimony inadmissible.

Appellants’ next contention is that the trial court erred in denying appellants’ motion for mistrial because of testimony of a witness for appellees concerning “settlement.” The granting of a mistrial is within the sound discretion of the trial court because he is present to see the effect, if any, that the alleged improper statement had on the jury. McCart v. Devine, 51 Ala.App. 678, 288 So.2d 739 (1973). When appellees’ witness, Sandra Hodo, mentioned the word “settlement,” in giving answer to an unrelated question, appellants’ counsel immediately objected and moved for mistrial. The court immediately called for a recess and conducted a hearing outside the presence of the jury to determine the context of the witness’s testimony. During that hearing the following occurred:

“Q. . . . [Y]ou said in your testimony out in the Court, in the presence of the Jury, that you called [Mr. Felder] and he talked in terms of settlement. And you said we discussed, I mean Mr. Crow asked you, said did you discuss figures. Is that _ _ _
“A. Well, the gist of it, we were deciding about the furniture and everything. And I know there was a figure given, but I don’t remember how much.”
“THE COURT: . . . [A]s far as what the witness has stated under oath now, seems to me that would be admissible, Mr. Weaver. She is talking about a conversation between her and this man, as I understand it, who is an officer of the Defendant. And he is saying that he is going to buy certain equipment.
“MR. WEAVER: No, Judge, that was not her testimony. Her testimony was that he discussed settlement.
“THE COURT: Well, of course, that’s what she is saying now.
“MR. WEAVER: And that’s prejudicial.
“THE COURT: I think by that she meant . . . that was just her way of terming what her way of describing the whole conversation was, but she is saying now, as I understand the witness, that he made a statement in substance that he would see that Hoyt was treated fairly. . . '.
“THE WITNESS: Yes.
“THE COURT: You are talking about his estate?
“THE WITNESS: Yes.
“THE COURT: That he would see that the estate was treated fairly and also would pay for the physical assets; is that right, the furniture and the equipment?
“THE WITNESS: No. At that time he was saying that you know, he would pay for the furniture and, you know, anything that Hoyt had purchased for there.”
* * * * * *
“THE COURT: Well, that’s what she is testifying to. That seems to me to be admissible.
“MR. WEAVER: Well, it would be our position, Your Honor, that the use of the terminology so prejudices the minds of the Jury, that there is an implication in their minds from the start of the lawsuit that there was a settlement discussed at that time, and that settlement was not suitable and that the lawsuit is the result thereof. . . . Now, I submit to the Court you cannot erase the use of that terminology from the Jury’s minds.
“THE COURT: Well, I think it can be explained when she gets back on the stand as to exactly what was said. So, I will overrule your motion for a mistrial.”

Upon resumption of direct examination, appellees’ attorney questioned the witness minutely about the tenor of the conversation between herself and Felder. The jury was made aware of everything said in that conversation. Any possible prejudice from the previous use of the term “settlement” was corrected. We cannot say that the trial court erred in this regard. He took painstaking measures to determine the exact nature of the conversation, and after making that determination suggested that the witness could explain what she meant by “settlement.” Appellees’ attorney did, in fact, give the witness an opportunity to explain the entire conversation.

“Q Was there any discussion about payment for office furniture and furnishings and fixtures that belonged to your brother or the corporation?
“A Yes, sir. I had told him that my still working with them would not interfere with the other Record Data of Alabama. And we discussed the furniture, that my brother had bought that furniture, you know, everything, furnishings and everything in the office was bought by him; did not belong to the Record Data International. And we discussed that.
“Q What did Mr. Felder have to say about that, if anything?
“A Well, he offered to buy it. I don’t remember the figure.
“Q Did he quote you some figure?
“A He did, but I don’t remember what it was.
“Q 0. K. Did you ever have any further communications with Mr. Felder personally, I mean you and he concerning the purchase of the equipment?
“A No, sir.
“Q The furnishings?
“A No, sir.”

Appellants’ next contention that the trial court erred in giving its oral charge on the fraud count to the jury is likewise without merit. Appellees correctly point out that no exception or objection was made so as to preserve the error. Rule 51, ARCP specifies that error may not be assigned for the giving of a defective charge unless the party seeking to assign error objects to that portion of the charge which is defective before the jury retires to consider its verdict, and specifically states the matter to which he objects and the grounds of his objection. At the close of the trial court’s oral charges, the court asked the appellants “What says the Defendant?” Appellants’ counsel replied, “No exceptions.”

Rule 51 affords the trial court an opportunity to correct any error in its charge before it becomes error with injury to reversal. No objection or exception was preserved for the trial court to review his charges. Therefore, no error was committed. Odom v. Linsey, 365 So.2d 664 (Ala.1978).

Appellants’ next contention is that the trial court erred in submitting the issue of who were the parties to the franchise agreement to the jury instead of deciding that issue as a matter of law. However, the submission of the issue of who were the parties to the agreement was proper because it was a crucial factual question in the case. If the agreement was solely with Nichols individually, it terminated with his death. If it was with Nichols individually and with the corporation he formed, Legal Messenger Service, Inc., the corporate client had a cause of action against the defendants. As the trial court noted in its opinion and order overruling motion for new trial, viz.:

“The defendants . . . complain that Legal Messenger Service of Alabama . was not in existence at the time the first franchise agreement was executed. However, evidence was presented indicating that the same was incorporated thereafter and that following such incorporation, an amendment to the franchise agreement was executed in the name of Legal Messenger Service . . .
“Furthermore, the forms prepared by the defendants for use by the franchisee in the operation of the business in Alabama designated the franchisee as ‘Legal Messenger Service of Alabama, Inc.’ The Court, concludes that the question whether the defendant intended to enter into a contract with Legal Messenger Service was oné of fact, depending upon the intention of the parties.”

We agree with the trial court that this was a jury issue.

Appellants’ final contention is that the trial court erred in denying appellants judgment n. o. v. or in the alternative new trial upon the ground that the verdict of the jury was excessive. The trial court held that “the evidence presented . . . was ample to justify an award of both compensatory and punitive damages.” We must agree with the trial court in this regard as we cannot say, as a matter of law, that the award made by the jury was excessive in view of the evidence presented.

AFFIRMED.

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

On Rehearing

Upon consideration of the application for rehearing by the full Court, the same is hereby overruled.

All the Justices concur.


author: FAULKNER, Justice. BEATTY, Justice

text:
    Gage Bush ENGLUND v. The FIRST NATIONAL BANK OF BIRMINGHAM, etc., et al. The FIRST NATIONAL BANK OF BIRMINGHAM, etc., v. Gage Bush ENGLUND et al.
    78-444, 78-484.
    Supreme Court of Alabama.
    Jan. 11, 1980.
    Rehearing Denied March 7, 1980.

      Sydney R. Prince, III, George H. Mc-Kean, and William C. Barclift, III, of Inge, Twitty, Duffy & Prince, Mobile, for appellant/cross appellee Gage Bush Englund.
    Luden D. Gardner, Jr., George F. Maynard, and E. T. Brown Jr., of Cabaniss, Johnston, Gardner, Dumas & O’Neal, Birmingham, for appellee/cross appellant The First National Bank of Birmingham, etc., et al.
    George Young, Birmingham, Guardian Ad Litem, for Alixandra Gage Englund, a minor and Rachael Rutherford Englund, a minor.
   FAULKNER, Justice.

These are appeals from a declaratory judgment rendered by the Circuit Court of Jefferson County interpreting a trust provision under the will of Morris W. Bush, and awarding the guardian ad litem a fee of $50,000. We affirm in part, reverse in part, and remand to the trial court.

On December 12, 1929, Morris W. Bush executed his last will and testament, and appointed the American Trader National Bank of Birmingham (now The First National Bank of Birmingham) as executor and trustee. Under the terms of the will, Miss A. L. Williams, Bush’s aunt received the net income for her life from one-fourth of the residuary estate, held in trust by the Bank. Bush’s wife, Margaret Gage Bush, received the net income for her life from three-fourths of the estate for her support and comfort. In addition, if the trustee were satisfied that the net income from her share of the trust was not sufficient for her “proper support and comfort” it was authorized to pay to her any additional sum or sums out of the principal of said trust “as to it may seem necessary or desirable for such purposes.” Upon the death of Mrs. Bush, the will provides that the

“. . . trustee shall hold the trust estate in trust for the equal use and benefit of my children living at decease of my said wife. .
“The Trustee shall hold the share of each child entitled to share in the trust estate upon the decease of my said wife in trust for such child for and during his or her lifetime, and shall pay over to such child, or use and apply for his or her support, education and comfort, the entire net income from his or her share of said trust estate and so much of the principal thereof as to the Trustee may seem necessary or desirable for such purposes; . .."

The will further provides that upon the death of a child leaving descendents, those descendants (grandchildren of Morris Bush) shall receive the trust estate in equal shares if they are “of age” — if not they receive the net income from the trust, and so much of the principal as the trustee deems necessary or desirable for their support, education, and comfort, until they become “of age.”

Mr. Bush died January 24, 1932, survived by his wife, one daughter, Gage, and his aunt, Miss Williams. The trust was established on December 10, 1933, with the Bank as trustee.

Miss Williams died in February, 1932. Mrs. Bush, therefore, became the sole income beneficiary. She died on June 27, 1971, survived by her daughter, Gage Bush Englund, and two granddaughters, Alixan-dra Gage Englund and Rachael Rutherford Englund.

At the time of Mr. Bush’s death, the principal assets of his estate consisted of shares of capital stock of the Alabama ByProducts Corporation and Alabama Chemical Products Company. In June, 1971, when Gage became the sole life beneficiary, the market value of the stock in Alabama By-Products and Alabama Chemical was about $10,535,000. On October 16, 1977, the trustee agreed to sell all of the stock in Alabama By-Products and Alabama Chemical to the Drummond Company for $31,090,-400. After expenses and taxes, the trustee realized net proceeds of $17,628,513 from the sale.

From the sale of the stock, Gage Englund requested the trustee to allocate $900,000 to income instead of principal and distribute that money to her as income. She made that request under this provision of the will:

“The Trustee hereunder shall have the power to determine whether any money or property coming into its hands shall be treated as a part of the principal of this trust estate, or a part of the income therefrom, and to apportion between such principal and income any loss or expenditure in connection with the trust estate as to it may seem just and equitable.”

This request was considered by the Trust Committee of the Bank, who adopted a resolution stating that the proposed allocation was a proper exercise of the trustee’s power. They determined that the trustee would treat as income $900,000 in after-tax dollars of the capital gain resulting from the sale, subject to obtaining a declaratory judgment, and instruction from the Circuit Court that the trustee had the allocutory power.

The First National Bank as trustee filed a complaint on June 13, 1978, requesting instructions from the court and a declaratory judgment as to the proper construction of the clause. The trustee contended that this provision gave it authority to allocate trust receipts between income and principal in its absolute discretion. A guardian ad litem was appointed for the minor remain-dermen and for any members of the class of remaindermen which might become entitled to any interest in the trust estate.

After an ore tenus hearing, the trial court adjudged that the trust instrument did not authorize the trustee to determine whether trust receipts were to be allocated to income or principal as the trustee might find to be just and equitable, except where there was reasonable doubt as to the character of the receipt in question. The trial court ruled that the proposed allocation of a portion of the capital gain realized on the sale of the stock to income would constitute an abuse of discretion. He awarded attorney’s fees to the guardian ad litem in the amount of $50,000.

Both Mrs. Englund and the Bank moved for a new trial and their motions were denied. Mrs. Englund appeals from the entire judgment and denial of her motion for new trial. The Bank as trustee appeals only on the issue of excessive attorney’s fees awarded to the guardian ad litem.

I.

On appeal we are asked to determine if the testator intended to give his trustee the discretionary power to determine whether money or property that it obtained should be treated as principal or income, without regard to rules of allocation which would apply in the absence of an expression of settlor’s intent, if the proposed allocation was an abuse of discretion, and if the attorney’s fee awarded the guardian ad litem was excessive.

Even prior to the passage of the Alabama Principal and Income Act, courts recognized that profits on the sale of shares of stock which comprise a part of the trust corpus are ordinarily to be treated as principal. Sherman v. Sherman, 5 Ohio St.2d 27, 213 N.E.2d 360 (1966); G. Bogert, The Law of Trusts and Trustees, §§ 816, 823 (2d ed. 1962); 3 A. Scott, Law of Trusts, § 233.1 (3rd ed. 1967); see also, First National Bank of Tuskaloosa v. Hill, 241 Ala. 606, 4 So.2d 170 (1941).

Whether the above trust provision gives the trustee, FNB, the authority to determine which receipts are principal and which are income in its absolute and unfettered discretion or only the authority to make such a determination when the character of the receipt is unclear or doubtful, is the crux of this case.

In American Security & Trust Co. v. Frost, 73 App.D.C. 75, 117 F.2d 283 (D.C. Cir. 1940), the testatrix provided in her will for a residuary trust leaving the income to her children and grandchildren for life and the corpus ultimately to be distributed to her descendants living at the time specified for final distribution. The executors/trustees sold certain securities which were a part of the trust estate, and also received a stock dividend during the estate administration. They decided that a portion of the proceeds of the stock sale and some of the shares received as a stock dividend were income which should be distributed to the life beneficiaries. On appeal, the Circuit Court considered whether Will Clause Eleven authorizing the executors/trustees “to decide finally any question that may arise as to what constitutes income and what principal . . .” empowered the trustees to allocate the funds and stock as income. The court first determined that there was no general intention expressed throughout the will as a whole to allow such a departure from the established rules regarding trusts. The court decided that the trial judge’s interpretation of Clause Eleven was too broad:

“To say that Clause 11 empowers the trustees to ‘decide’ contrary to local ‘rules of construction,’ proves too much. In a sense, every item of property is controlled by a ‘rule of construction.’ E. g., bonds' received from the original estate would be corpus, the interest on those bonds, income. This is a ‘rule of construction’ derived from the customs of the community. Surely, it would not be said that under the power given in Mrs. Lincoln’s will, the trustees could override this rule. And yet if they may override some rules of construction and not others, there would be complicated questions of degree, e. g., whether one rule or another was so certain that the trustees must not overstep it.”

There being no genuine question concerning the category in which the fund or stock fell, the court reversed the trial court’s decision.

In the present case, an examination of the entire will does not reflect a clearly indicated intention on the part of Morris Bush to violate any rules of construction and give his trustee the power to make the requested allocation. Although he granted the trustee broad powers in other areas, he expressly provided a standard for the invasion of the principal of the trust on behalf of his daughter, Mrs. Englund — invasion to the extent that it seemed necessary or desirable to the trustee for Mrs. Englund’s support, education, or comfort. It was estimated that in 1978 Mrs.Englund would receive approximately $1,000,000 in income from the trust and her purpose in requesting the $900,000 allocation was to provide a separate estate for her husband and to repay an interest-free $300,000 debt to the trust. It would have been an abuse of discretion for the trustee to have made the proposed allocation pursuant to the clause allowing invasion for support, education, or comfort as the trustee admitted no such need existed and that it could not and did not rely on this clause. Because of the presence of this clause allowing invasion of the principal pursuant to a fixed standard, we cannot say that the will as a whole reflected a general intention to allow the proposed allocation.

Although the clause in American Security & Trust Co. v. Frost, supra, is worded differently from the provision in Morris Bush’s will, it expresses the same grant of authority to the trustee. In both instances the character of the receipt is clear; proceeds from the sale of trust securities are principal. Where proper allocation is not “a matter of honest doubt” the trustees are not authorized to make allocations between principal and income. See, Commissioner of Internal Revenue v. O’Keeffe, 118 F.2d 639, 642 (1st Cir. 1941). The trial judge was correct in his decision that the trust provision in question did not authorize the allocation. We affirm this part of the decree.

II.

Rule 17(d) of the Alabama Rules of Civil Procedure provides that when a guardian ad litem has been appointed, the court must ascertain what is a reasonable fee for his services, and that fee will be taxed as a part of the costs in the action. The matter of the guardian ad litem’s fee is within the discretion of the trial court, subject to correction only for abuse of discretion. Commercial Standard Insurance Company v. New Amsterdam Casualty Company, 272 Ala. 357, 362, 131 So.2d 182, 186 (1961).

In awarding the $50,000 fee to the guardian, the court stated that the guardian had expended 175 hours on the case and represented his clients with diligence and expertise “resulting in the preservation of some $900,000 for the interests he has represented,” but the guardian ad litem testified himself that he would have served for a lesser amount than set by the court if the remaindermen in this case had been adults seeking his services. We, therefore, reduce the guardian ad litem’s fee set by the trial judge and award him the sum of $26,250, which shall be taxed as part of the costs. We reverse the trial judge in the award of the guardian ad litem’s fee.

AFFIRMED IN PART, REVERSED IN ■PART, AND REMANDED.

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

BLOODWORTH, MADDOX, EMBRY and BEATTY, JJ., concur in Section II of the opinion, and dissent in that part of the opinion affirming the trial court.

BEATTY, Justice

(concurring in part and dissenting in part):

I disagree with the conclusions of the majority on its interpretation of the language of this instrument.

It is true that profits on the sale of shares of stock are ordinarily to be allocated to principal. See First National Bank of Tuskaloosa v. Hill, 241 Ala. 606, 4 So.2d 170 (1941); see also Code of 1975, §§ 19-3-271,-272. However, this proposition holds true only if there is no expression of a different intention on the part of the settlor, for it is well settled in this jurisdiction that “[t]he intention of the settlor is the law of the trust and if the nature, subject matter and objects are reasonably ascertainable and the scheme not inconsistent with some established rule of law or public policy, that intention must control and the courts will sustain and give it effect.” (Emphasis added.) Stariha v. Hagood, 252 Ala. 158, 40 So.2d 85 (1949); see Thurlow v. Berry, 249 Ala. 597, 32 So.2d 526 (1947).

The provision of the trust instrument under which the trustee sought to allocate the $900,000 to income instead of principal gave to the trustee “the power to determine whether any money or property coming into its hands shall be treated as a part of the principal of the trust estate, or a part of the income therefrom. . . . ” The language utilized by the testator in the provision quoted above clearly and unambiguously grants the trustee the authority to use its discretion in determining whether property received by the trust is to be held as principal or distributed as income. The trust document as a whole supports this conclusion, for an examination of that instrument reveals that the settlor sought to vest in the trustee a large amount of discretion in dealing with the trust estate. For example, the trustee was given the power to invest as it saw fit, regardless of any restrictions which would otherwise have been imposed by law. It was also given the power to form a corporation to which it could transfer all trust assets.

The majority’s reliance on the provision allowing invasion of the corpus of the trust for the support, education, or comfort of the beneficiary is misplaced under the circumstances of this case.' Although that provision would seem to serve as a limitation on the trustee’s power to distribute principal, I fail to perceive its relationship to the trustee’s power to determine what constitutes principal. The former power comes into being only after the exercise of the latter. As a result, the trustee under the will of Morris W. Bush had the authority to classify the property received by the trust as income. Cases from other jurisdictions support this position. See, e. g., Sherman v. Sherman, 5 Ohio St.2d 27, 213 N.E.2d 360 (1966); Hopkins v. Cleveland Trust Co., 120 N.E.2d 457 (Ohio App. 1954); Dumaine v. Dumaine, 301 Mass. 214, 16 N.E.2d 625 (1938).

However, I agree with the majority that the trial court abused its discretion in awarding the guardian ad litem a fee of $50,000. The lower court found that the guardian had expended 175 hours on the case; on an hourly basis, then, the fee awarded comes to $285.71 per hour. This award is clearly disproportionate when viewed in the light of the guardian’s own testimony that he would have set a rate of $75.00 per hour if the remaindermen in this case had been adults seeking his services, rather than infants for whom he was appointed. Assuming arguendo that the professional responsibility inherent in defending the interests of minors is weightier than that which attends the representation of adults, the legal issue in this case — the proper construction of a clause in a will— was the same regardless of whether the client was an adult or a child. The decision of the trial court was ironic in its effect, for had the remaindermen here been adults they could have employed the very attorney who was appointed for them for roughly one-fourth the fee that was awarded. Obviously the nature, risks and complexities of some cases call for higher fees than others. This is not one of those in the former category, however. Therefore, a reduction in the fee to be allowed is in order

BLOODWORTH, MADDOX and EM-BRY, JJ., concur.

      . Code 1975, §§ 19-3-271 and 272. The controlling provisions of the Alabama Uniform Principal and Income Act, are not applicable, having been enacted after the death of the testator. See, Corretti v. First National of Birmingham, 290 Ala. 280, 276 So.2d 141 (1973).


author: PER CURIAM. JONES, Justice,

text:
    James P. MILES et al. v. ST. PAUL FIRE & MARINE INS. CO. Elgin DARDEN et al. v. ST. PAUL FIRE & MARINE INS. CO. Charles Lloyd GILBERT v. ST. PAUL FIRE & MARINE INS. Co. C. L. GILBERT et al. v. ST. PAUL FIRE & MARINE INS. CO.
    78-461 and 78-500 to 78-502.
    Supreme Court of Alabama.
    Jan. 11, 1980.
    Rehearing Denied March 7, 1980.

      William P. Boggs and J. Marise Mims of Boggs & Mims, Clanton, for appellants.
    Robert E. Parsons of McDaniel, Hall, Parsons & Conerly, Birmingham, for appellees.
   PER CURIAM.

These four consolidated cases involve the exact policy provision which was recently considered by this Court and set out in Watkins v. St. Paul Fire and Marine Insurance Co., 376 So.2d 660 (Ala.1979). The Watkins case involved a summary judgment granted in favor of the insurance company. We reversed and remanded because we concluded that a question of fact existed with respect to whether or not an attorney-client relationship existed between the insured, Attorney John Marcus, and Mrs. Watkins.

In these four cases, it is undisputed that all of the parties-plaintiffs had, at one time, been clients of the insured. All of 'them left funds with the attorney to be invested by him in what he designated “the lawyer-client trust fund.” The trial court construed the policy provision to preclude coverage because, in its words, “there was not an ordinary regular attorney client relationship between these plaintiffs and Mr. Marcus.” Apparently, the trial court believed that the policy afforded coverage only if the insured was actually representing the plaintiffs in a legal proceeding at the time of the loss. However, the policy provision which provides coverage includes “the insured’s acts as an administrator, conservator, executor, guardian, trustee or any similar fiduciary capacity . . . .” Mr. Marcus, representing these people as an investment counselor, surely was acting in a fiduciary capacity with respect to each of them, all of whom were undisputedly clients of his. Therefore, under at least one construction of the policy provision, there was coverage. It is axiomatic that, if a policy is subject to more than one interpretation, it is to be construed to afford coverage and against the insuror. Black’s Law Dictionary, Revised Fourth Edition, defines fiduciary capacity as follows:

“One is said to act in a ‘fiduciary capacity’ or to receive money or contract a debt in a ‘fiduciary capacity,’ when the business which he transacts, or the money or property which he handles, is not his own or for his own benefit, but for the benefit of another person, as to whom he stands in a relation implying and necessitating great confidence and trust on the one part and a high degree of good faith on the other part.”

It is undisputed that Mr. Marcus solicited clients which he represented in a legal capacity to invest in his “attorney-client trust fund.” This is activity which the policy insures against. We reverse because we are convinced that the trial court’s conclusion to the contrary is palpably erroneous.

REVERSED AND REMANDED.

. TORBERT, C. J., and BLOODWORTH, MADDOX, FAULKNER, ALMON, SHORES and BEATTY, JJ., concur.

JONES and EMBRY, JJ., concur in the result.

JONES, Justice,

concurring in the result:

These consolidated cases are strikingly similar to the earlier case of Watkins v. St. Paul Fire and Marine Insurance Co., supra, in which I dissented with a written opinion. I have not changed my view; but a majority of this Court has spoken and I agree that the instant appeals are controlled by the Watkins decision. Thus, I yield to the majority and concur in the result to reverse and remand

EMBRY, J., concurs.


author: MADDOX, Justice. TORBERT, Chief Justice

text:
    PUBLIC RELATIONS COUNSEL, INC. v. CITY OF MOBILE, a Municipal Corporation; and Mobile Housing Board, a body corporate and politic organized under the laws of the State of Alabama, jointly and severally.
    78-300.
    Supreme Court of Alabama.
    Feb. 8, 1980.
    Stova F. McFadden and J. H. Fernandez, of McFadden, Riley & Parker, Mobile, for appellant.
    William R. Lauten, Thomas M. Galloway, Mobile, for appellees.
   MADDOX, Justice.

The principal issue in this case is whether a municipality may contractually waive or restrict its power of eminent domain.

The facts of this case are as follows: Plaintiff, Public Relations Counsel, Inc., is the owner of Lot 2, Block 4 of the East Church Urban Renewal Area (the Area) in Mobile. One of the defendants, the Mobile Housing Board, is the owner of Lot 1, Block 4- of the Area. The other defendant, the City of Mobile, is the owner of Lots 3 and 4.

Plaintiff purchased Lot 2 on April 4, 1969, prior to the time the City purchased Lots 3 and 4.

At present, the city museum is located on Lot 3. According to plans on file in the Inspector Services Department of the City, the City proposes to expand the museum from Lot 3 across the existing public walkway and onto Lot 1. The proposed plans for the museum expansion were approved on December 4, 1978, by the Architectural Review Board of the City, and were approved on December 6, 1978, by the defendant Mobile Housing Board. The completion of the proposed expansion will require a deed from the defendant Mobile Housing Board to the defendant City of Mobile conveying Lot 1 of the Area to the City.

The diagram of the area illustrates where the lots are presently located as well as the public walkway which is the subject of the controversy.

The warranty deeds executed by the Mobile Housing Board to the grantees of the lots in the Urban Renewal Area provided that the grantees were subject to certain restrictive covenants, one being that each purchaser would develop the property in conformity with the Urban Renewal Plan on file with the City, which provided, in part:

“The Board of Commissioners of the City of Mobile may modify the Urban Renewal Plan at any time upon recommendation of the Mobile Housing Board; provided, however, that if any land in the Project Area has been leased or sold, the modification must be consented to in writing by the purchaser or lessee of the properties affected by the proposed modification.” (Emphasis added).

The plaintiff objected to the construction of the proposed building over the area designated as “public access” and sought to enjoin the City and the Mobile Housing Board from proceeding with the proposed expansion of the city museum, claiming that the expansion or acts in furtherance of it were illegal, as constituting a vacation of a public way not in conformity with statutory procedure, as constituting a modification of the urban renewal plan without the consent of the plaintiff which consent was specifically provided for in the urban renewal plan, and as constituting violations of restrictive covenants and applicable deeds. In short, the plaintiff took the position that the terms of the urban renewal plan, the plats recorded in connection with it, the restrictive covenants and deeds applicable to property sold under the urban renewal plan, were binding upon the Housing Board and the City, were material considerations in the plaintiff’s purchase of its property, and constituted contractual rights which could not be abrogated by the City. Plaintiff also asserted rights to have parking provided and maintained for its property as provided in the urban renewal plan. Trial on the merits of the permanent injunction was consolidated with the hearing on the application for a preliminary injunction, and on February 8, 1979, the trial judge held that the City could not contractually waive or restrict its power of eminent domain, citing as authority the following:

“The power of eminent domain is inalienable, and no legislature can bind itself or its successors not to exercise this power when public necessity and convenience require it. A statutory provision that the power of eminent domain shall not in whole or in part at any future time be exercised is therefore invalid. The power of eminent domain is so inherently governmental and so essential to the public welfare that it cannot be abridged or restricted by agreement, and a contract executed by the state which barters away this right is not within the protection of the impairment clause. The foregoing principle applies alike to contracts between the state and an individual or corporation. Similarly, agencies to whom the power of eminent domain is delegated cannot by agreement restrict their right to exercise the power.” 16 Am.Jur.2d Eminent Domain § 2.

The trial court also held that if the City chose to vacate the public way that it must comply with the applicable statutory provisions, and damages would be assigned to the plaintiff as provided by law.

Plaintiff appealed to this Court raising the same issues presented to the trial court: (1) Whether by exercise of the power of eminent domain the City may close the existing public walkway for the purpose of expanding the existing museum; (2) Whether the contemplated expansion would be an impairment of the obligations of contract; (3) Whether the action of the City and the Mobile Housing Board was an attempt to vacate a public way not in conformity with statutory procedure; and (4) Whether the Housing Board was required to provide parking.

In considering this case, we accept the fact that it is undisputed that the proposed expansion of the museum would violate the Urban Renewal Plan and the restrictive covenants in the Area. The specific questions here presented have not been previously decided by this Court insofar as we are aware. In deciding these questions, we must attempt to construe legislative intent as that intent is expressed in the statute dealing with urban renewal, powers granted to cities to condemn property, and in statutes which restrict the rights to condemn when property is already devoted to public use. By statute, governmental agencies are granted the power to condemn property and establish urban renewal plans. Municipalities, as is true here, may become grantees of property located in the Urban Renewal Area. Certain areas within the Urban Renewal Plan are designated as “public areas,” as is true here. As public areas already devoted to public use, can the property then be taken for another and different character of public use? Can the City, by exercising its power of eminent domain, modify its Urban Renewal Plan, which, by its terms, required the consent of the purchasers of lots in the Area, and which consent was refused by one of the purchasers? In short, can a city contractually waive or restrict its power of eminent domain?

As a general rule, a city cannot, in perpetuity, by contract, waivé or restrict its power of eminent domain.

In Brock v. City of Anniston, 244 Ala. 544, 14 So.2d 519 (1943), it is succinctly stated:

“As has been often observed, the power of eminent domain is one of the highest powers of government, an attribute of sovereignty, inherent therein as a necessary and inseparable part thereof. It is a right which antedates constitutions, inherent in society and superior to all property rights.”

It should be noted, however, that as stated in Dean v. County Board of Education, 210 Ala. 256, 97 So. 741 (1923):

“Inasmuch as the right lies dormant in the state until legislative action is had pointing out the occasion, mode, conditions, and agencies for its exercise, the right to exercise the power must be conferred by statute, either in express words or by necessary implication, and is not to be gathered from doubtful inferences.”

We hold that property devoted to “public use” in urban renewal plans occupies the same status as other property which has been devoted to a public use, and the procedure which is applicable is set out in Code 1975, § 18-1-6:

“§ 18-1-6. Condemnation of property already devoted to public use.
“If the property sought to be' condemned or any portion thereof or interest therein has already been subjected to or devoted to a public use, such land or portion thereof or interest therein shall not be taken for another and different character of public use unless an actual necessity for the specific land or portion thereof or interest therein shall be alleged and proven, and unless it be alleged and proven that such other and different character of public use will not materially interfere with the public use to which such property is already subjected or devoted; provided, however, that this section shall not apply to any crossing, at grade or otherwise, of the right-of-way of any railway company when such crossing is made by any state highway, county road or city street within counties having populations of not less than 34,875 nor more than 36,000, according to the most recent federal decennial census.”

In the present case, if the City of Mobile decides to condemn the walkway, then it must prove both (1) actual necessity, and (2) that the other use will not materially interfere with the public use to which the property is already devoted.

Whether there is an actual necessity and whether the taking will materially interfere with the public use to which the property is already devoted are mixed questions of law and fact for the judge hearing the case. Each case must be decided on its own facts.

In Southern Railway Co. v. Todd, 279 Ala. 260, 184 So.2d 341 (1966), a case where the City of Huntsville widened a street crossing the tracks of the Southern Railway Company, this Court upheld the trial court’s finding that:

“. . . [T]he additional land was actually necessary, was in the public interest, would substantially contribute to the orderly and safe movement of traffic and would not materially interfere with the public use to which the property was already subjected.”

In a case decided one year later, however, this Court held that where the state sought to condemn a spur track belonging to Southern Railway Company, for the purpose of building Interstate 20, and thereby render 4,670 feet of the 6,300-foot track unavailable for use by Southern, the use by the state would materially interfere with that.use and thus the condemnation was not allowed. Brittain v. Southern Railway Company, 280 Ala. 650, 197 So.2d 453 (1967).

AFFIRMED.

BLOODWORTH, ALMON and SHORES, JJ., concur.

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

FAULKNER, JONES and EMBRY, JJ., dissent.

TORBERT, Chief Justice

(concurring in the result).

I concur in the majority’s holding that a municipality may not in perpetuity contractually restrict its power of eminent domain; however, it would appear the alleged vacation or closing of the public walkway will materially interfere with the public use to which the walkway is already subjected or devoted.

BEATTY, J., concurs.