author: BROOM, Justice,

text:
    SOUTHLAND SUPPLY COMPANY, INC. and United States Fidelity & Guaranty Company v. James Garland PATRICK, a Minor, by and through Mrs. Hattie Bell Patrick, Mother and Next Friend.
    No. 52534.
    Supreme Court of Mississippi.
    April 1, 1981.
    Rehearing Denied May 6, 1981.

      Leonard B. Melvin, Jr. and Sarah L. En-trekin, Melvin & Melvin, Laurel, for appellants.
    Michael S. Allred, Satterfield & Allred, Jackson, for appellees.
    Before ROBERTSON, BROOM and HAWKINS, JJ.
   BROOM, Justice,

for the Court:

Workmen’s compensation under Louisiana statutes was sought in the Chancery Court of the Second Judicial District of Jones County. Benefits pursuant to the Louisiana Workmen’s Compensation statutes were decreed, that is $85 weekly benefits less $63 weekly benefits previously paid under the Mississippi Act. Penalties and attorney’s fees were also decreed. On appeal here, the employer Southland Supply Company, Inc. (Southland herein) and the carrier United States Fidelity & Guaranty Company (USF&G herein) argue that the lower court erred in (i) assuming jurisdiction of the matter, (ii) finding claimant totally and permanently disabled, and (iii) awarding penalties and attorney’s fees. We affirm in part.

Facts of the case establish that the claimant Patrick, a minor with a fifth grade education, dropped out of school at age sixteen. His employer Southland, a Mississippi corporation, has its principal place of business in Jones County. USF&G is a Maryland corporation qualified to do business in Mississippi. Patrick contracted and became employed by Southland within the State of Mississippi but temporarily went into the State of Louisiana working for Southland in the scope of his employment. The work in Louisiana appears to have been within the purview of USF&G’s coverage provided Southland for which a premium was paid. An accidental 50-foot fall (May 22, 1976) resulted in critical, serious, and disabling injuries at a time when he was receiving $2.75 per hour. He worked an average of 50.04 hours per week and had an average weekly wage of $138.11. His injuries included a multiple compression fracture of the dorsolumbar spine and other injuries. Based upon his injuries, the medical doctors testified that his body as a whole was 50/54% medically impaired. The lower court found that his medical impairment, considered along with his lack of education, training, and experience, resulted in a total occupational disability. After his injury, Patrick applied for and was paid (without controverting by USF&G) weekly benefits of $63 plus medical expenses as provided under the Mississippi Workmen’s Compensation statutes.

Appellants USF&G and Southland first argue that because claimant Patrick chose to seek compensation under the Mississippi law, he was precluded from later seeking compensation under the Louisiana statutes. On that basis in the lower court, they filed pleas in bar asserting res judicata and contended that the Mississippi court was without jurisdiction. The appellants rely upon Magnolia Petroleum Company v. Hunt, 320 U.S. 430, 64 S.Ct. 208, 88 L.Ed.2d 149 (1943), which held:

But when the employee who has recovered compensation for his injury in one state seeks a second recovery in another he may be met by the plea that full faith and credit requires that his demand, which has become res judicata in one state, must be recognized as such in every other. (320 U.S. at 437, 64 S.Ct. at 213). * * * * * *
Because there is a full faith and credit clause a defendant may not a second time challenge the validity of the plaintiff’s right which has ripened into a judgment and a plaintiff may not for his single cause of action secure a second or a greater recovery. (320 U.S. at 439-40, 64 S.Ct. at 214).

The quoted language in Magnolia would seemingly be support for the argument of the appellants, but that case has recently been overruled by Thomas v. Washington Gas Light Co., - U.S. -, 100 S.Ct. 2647, 65 L.Ed.2d 757 (1980). Other cases cited by USF&G and Southland are factually distinguishable. The U. S. Supreme Court in Thomas discussed the extra-territorial effects of judgments of one state as applied to situations similar to that in the present case and stated:

The Full Faith and Credit Clause should not be construed to preclude successive workmen’s compensation awards. Accordingly, Magnolia Petroleum Co. v. Hunt should be overruled. (100 S.Ct. at 2663).

We think the lower court correctly awarded Patrick benefits under the Louisiana Workmen’s Compensation law subject to credit for any amounts paid under the Mississippi Act. Martin v. L&A Contracting Co., 249 Miss. 441, 162 So.2d 870 (1964); Harrison Co. v. Norton, 244 Miss. 752, 146 So.2d 327 (1962).

Second argument is that the lower court erred in finding the claimant to be totally and permanently disabled. The lower court, based upon substantial expert medical testimony plus lay testimony, found that Patrick was and continued to be totally disabled since May 22, 1976, and unable to engage in any occupation or gainful employment for which he is reasonably fit by reason of education, training and experience. Medical testimony of Dr. Cook heard by the lower court was that the claimant could not engage in any type of employment without experiencing substantial pain and hazarding his health thereby causing him to be totally disabled from a functional or occupational standpoint. Considerably to the contrary were some aspects of the testimony of Dr. Blake. In L.S.A.-R.S. 23:1221(1) (Supp.1981), total disability is defined as the inability

of an employee to engage in any gainful occupation for wages whether or not the same or a similar occupation as that in which the employee was customarily engaged when injured and whether or not an occupation for which the employee, at the time of injury, was particularly fitted by reason of education, . . .

The statute has been interpreted by the Louisiana courts. Rachal v. Highlands Insurance Company, 355 So.2d 1355 (La.App.3rd Cir. 1978), held:

Our interpretation of the amended statute is that an injured employee is totally disabled if he is unable to pursue any gainful employment without experiencing substantial pain.

L.S.A.-R.S. 23:1221(2) (Supp.1981) states:

For injury producing permanent total disability of an employee to engage in any gainful occupation for wages, whether or not the same or a similar occupation as that in which the employee was customarily engaged when injured and whether or not an occupation for which the employee, at the time of injury, was particularly fitted by reason of education, training, and experience, sixty-six and two-thirds per centum of wages during the period of such disability.

The chancellor who heard the testimony resolved the conflicts favorably to the claimant and found that, in the tragic fall at his employment, Patrick incurred

permanent injuries, which consisted of multiple compression fractures of the dorsolumbar spine, including the vertebrae normally denominated as T6, T8, T12, LI, and L3; scoliosis or misalignment of the dorsolumbar spine secondary to said fractures; closed non-displaced fracture of the sacrum; closed comminut-ed displaced fracture of the right distal radius or wrist bone, with malposition and residual restriction of motion; open comminuted fracture of the right os calcis or heel bone, with second post traumatic arthritis of the joint and restriction of motion of the right ankle; closed commi-nuted fracture of the left os calcis, with residual post traumatic arthritis and restriction of motion of the left ankle and cosmetic deformity of the foot.

The chancellor further found

this medical impairment, in light of his education, training and experience, gives him an occupational disability which is total. The Court finds that Patrick has been since the injury totally disabled to engage in any occupation or gainful employment for which he is reasonably qualified by education and experience without experiencing substantial pain or danger to his health and wellbeing. He has suffered pain when required to engage in any mechanical or physical activities which required the use of his muscles, joints and bones, including standing longer than twenty minutes, walking for longer than thirty minutes, or with attempts to lift as much as twenty to thirty pounds. Body motion, such as bending, standing, walking, stooping or kneeling are apt to cause him pain. The injuries to his right wrist cause him pain if he attempts to lift more than ten pounds. He has lost some limited motion as a result of the injury to his wrist.

The appellants rely largely upon the case of Conlay v. Houston General Ins. Co., 370 So.2d 196 (La.App.3rd Cir. 1979) which held that a workman is totally disabled only when he is incapable of returning to any type of gainful employment whatsoever, or, although capable, he is unable to return to any gainful employment because of substantial pain.

As noted by appellee’s brief, in Conlay the claimant indicated that he was willing to accept a job in which he could be seated and work with his hands. In that case there was not established any physical limitations on his ability to sit and work without pain while seated. To the contrary in the instant case, the testimony is uncontra-dicted that Patrick suffers pain when he is required to engage in almost any type mechanical or physical activity which requires him to use his muscles, joints, and bones, or which requires him to stand over a few minutes at a time, or to walk thirty minutes, or to bend, sit, walk, stoop, squat, twist, turn, or kneel.

In his testimony, among other things, Dr. Cook testified:

Literally what happened in Mr. Patrick’s situation was the heel bone was literally driven up into the ankle bone, almost obliterating the joint between the two bones. The joint surface is rough and when the joint is used will generally become painful.

Dr. Cook by stipulation was testifying as an expert in the field of orthopedic surgery. He indicated that Patrick would experience more pain as the years go by in just manipulating and using his body. Conlay does not consider the factor of educational qualifications as did the case of Ashworth v. Elton Pickering, Inc., 361 So.2d 940 (La.App.3rd Cir. 1978). In Ashworth, the Louisiana court held:

The plaintiff has no reasonable ability to engage in any gainful occupation, in his physical condition. This is consistent with the legislative intent to bring into focus the economic realities of the situation. We make our decision without considering the plaintiff’s education, training or experience, but we note that the legislature was restrictive in the language it used in the 1975 amendment relating thereto. The amendment states:
“whether or not an occupation for which the employee, at the time of the injury was particularly fitted by reason of education, training, and experience.” (Emphasis by the Louisiana court).

Based on the expert medical testimony accepted by the chancellor, he found as fact that Patrick is and has been since May 22, 1976, totally disabled to engage in any occupation or gainful employment for which he is fit by reason of education, training and experience. According to the medical testimony, Patrick cannot engage in any type of employment without experiencing substantial pain and other danger to his health and well being therefore making him totally disabled from a functional or occupational point of view. Such disability was established by the degree of his medical impairment, the nature and severity of his injuries, his lack of education and technical or job-related training, and other related factors. That Patrick has no reasonable ability to engage in any gainful occupation in his physical condition, with his education and other limitations taken into account, was demonstrated by substantial evidence which the chancellor chose not to reject.

Appellant points out that Patrick’s employer, Southland, offered Patrick a job within the limitations of his medical impairment. Claimant’s position was that he was not able to do the “janitorial work, work with Donald in the warehouse, going to the bus, going to pick up things and things like that” offered him. No evidence establishes that the claimant is a malingerer because it is beyond question tthat his injuries are extensively disabling. He tried various physical activities but had to refrain from them because of pain.

We are unable to say upon the record that the chancellor erred in finding Patrick to be totally and permanently disabled.

Lastly the argument is made by USF&G and the employer Southland that the lower court erred in awarding penalties and attorney’s fees. L.S.A.-R.S. 23:1201.2 A. provides for penalties where the failure to pay compensation is “arbitrary, capricious, or without probable cause.” The record here does not show such a failure to pay benefits, but to the contrary the “failure to pay” was based upon at least logically arguable grounds. Accordingly we must reverse as to the award of penalties and attorney’s fees.

AFFIRMED AS TO DISABILITY BENEFITS; REVERSED AND RENDERED AS TO PENALTIES AND ATTORNEY’S FEES.

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

      . Jurisdictional argument asserted below by Southland and USF&G was three-fold: (a) recovery under Louisiana law is barred because Patrick first elected to claim under Mississippi law, (b) Patrick’s claim under Mississippi law is res judicata against the present Louisiana claim, and (c) Louisiana is the only proper forum state.


source: Caselaw Access Project

author: WALKER, Justice,

license: Public Domain

text:
    Benjamin ANDERSON, Jr. v. STATE of Mississippi.
    No. 52515.
    Supreme Court of Mississippi.
    April 1, 1981.
    Rehearing Denied May 6, 1981.

      Charles R. Holladay, Picayune, for appellant.
    Bill Allain, Atty. Gen. by Marvin L. White, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, WALKER and' BROOM, JJ.
   WALKER, Justice,

for the Court:

This appeal arises from the Circuit Court of Pearl River County, wherein Benjamin Anderson, Jr., was indicted, tried and convicted of armed robbery and sentenced to twenty years in the custody of the Mississippi Department of Corrections. We affirm.

The evidence shows that a black male, by exhibition of a pistol, robbed the Bank of Picayune, Branch Bank of the Hancock Bank, of the sum of $1,532.00 on July 26, 1978, at about noon. Prior to the robbery two witnesses observed a gray and maroon Monte Carlo travelling at an unusually slow rate of speed pass by the vicinity of the Bank two times. These witnesses stated that there were three black males in the Monte Carlo and one of the witnesses identified photographs of the appellant’s car as the car she had seen. The appellant was arrested driving a different car later that day, at about six o’clock p. m. The arresting officers found a leather pouch containing about $400.00 under the front passenger seat of the car. The serial numbers on ten of the bills contained in the pouch matched the serial numbers of “bait” money taken in the Bank robbery.

Benjamin Anderson, Kevin Acker, and A1 Jeroderick Taylor were subsequently indicted for armed robbery. Anderson pled not guilty; Taylor pled guilty and testified at Anderson’s trial.

Taylor, testifying for the State, stated that he had joined Anderson and Acker on the morning of the crime at Acker’s house; that he “borrowed” a .38 calibre pistol belonging to Acker’s father; and that the three left in Anderson’s Monte Carlo to go to New Orleans. As they passed a police car one of the men stated that somebody needed to do something because the police had been harassing them. Anderson (appellant) then suggested that someone should rob a bank. Taylor further related that the three then went to the vicinity of the West Branch of the Bank of Picayune. They drove around the block before Taylor got out near the Bank. Anderson and Acker then went to get some gas and/or beer; Taylor went to rob the Bank. Anderson and Acker returned in a few minutes and picked up Taylor in front of the Sunflower store near the Bank. Taylor placed the Bank’s money into two leather pouches and got out of the car a short distance later, leaving behind a pouch containing approximately $400.00. Before leaving the car he told the others, “Hey man, you can pay your car note — you can pay two of them.”

' Anderson, testifying on his own behalf, admitted that he drove Taylor to and from the Bank, but denied that he knew Taylor intended to rob the Bank or that he knew Taylor had a pistol. He stated that he and Acker continued on to New Orleans after Taylor left them, and they returned later that afternoon. He then loaned his car to his brother and discovered the pouch while he was removing his baseball suit and glove from the backseat. He threw his glove and the pouch in the backseat of his mother’s car and left with Acker for baseball practice. After they had travelled a short distance from Anderson’s home they were stopped by the police, , who were on their way to Anderson’s house to arrest him. According to Anderson, the police then conducted a search of the entire automobile and removed the leather pouch containing the money from his trunk.

Anderson’s first contention is that the money pouch was obtained as a result of an illegal search and was not admissible into evidence. His two-pronged argument is that the search was incident to an unlawful arrest and therefore unreasonable, and that even if the arrest was lawful the extent of the search was unreasonable.

As to the appellant’s first contention, the arrest of Anderson was lawful. At the hearing on the motion to suppress, two of the police officers who arrested Anderson testified that they knew an armed robbery had been committed that day and that Anderson was a suspect and was wanted for that armed robbery. Officer Mark testified that he received information on his police radio that there was a warrant for Anderson’s arrest. Chief of Police Lavigne stated that Officer Morrison had informed him that a warrant for appellant’s arrest had been issued by Judge H. K. Smith. This official information, that a warrant was outstanding for appellant’s arrest, was presumed to be authentic and was sufficient to constitute probable cause for the arrest of the appellant by officers without the warrant being in their possession. Fuqua v. State, 246 Miss. 191, 145 So.2d 152 (1962); Mississippi Code Annotated section 99-3-7 (1972).

The limited search of the automobile without a warrant was also lawful, being incident to the lawful arrest of the driver, Anderson. Hall v. State, 288 So.2d 850, 851 (Miss.1974); Wolf v. State, 260 So.2d 425 (Miss.1972), cert. denied, 409 U.S. 1042, 93 S.Ct. 535, 34 L.Ed.2d 492 (1972). The officer was justified in looking under the seat for a weapon. Once there, he had the right to seize the open money pouch which was in plain view. Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968).

This case is distinguishable from Barton v. State, 328 So.2d 353 (Miss.1976), where the arresting officer received information over his patrol car radio from the dispatcher that a 1966 Ford automobile, white over red, with a certain tag number, was proceeding east on I.-20 to Forest, occupied by a white female and two white males, and that marijuana was supposed to be in the automobile. No warrant had been issued. In that case we held that this information failed to meet the second requirement of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), which requirement is that the informer must have obtained his knowledge by personal observation or in some other dependable manner rather than through casual rumor. We stated that there was no showing where or how the official dispatcher obtained the information that the automobile in question had marijuana in it.

In this case, the official dispatch stated that a warrant was outstanding for the arrest. This information, in itself, gave the police officers reasonable ground to suspect and believe that Anderson had committed the armed robbery. Although the supposed warrant was never introduced into evidence, several officers testified without objection that they had been informed through official channels of the existence of the warrant. The appellant made no attempt to rebut this testimony, and does not now, and did not at trial, attack the validity of the warrant. Therefore, we need not determine whether the magistrate issuing the warrant had probable cause to issue it.

The appellant next contends the evidence was insufficient to convict him of armed robbery and that the lower court should have granted a directed verdict of acquittal. The proof showed that Anderson did not himself commit the armed robbery, but it was sufficient to show he aided and abetted Taylor, who did commit the robbery. One who aids, abets and assists in the commission of a crime is indictable and subject to the same punishment as a principal. Miss.Code Annot. § 97-1-3 (1972); Smith v. State, 296 So.2d 678 (Miss.1974). We, therefore, hold that there was sufficient evidence, if believed, to convict Anderson, and the lower court properly allowed the case to go to the jury.

Anderson next contends that instructions S-3 and S-4 should not have been allowed by the court. It is not necessary to set out the state’s instructions in full. Suffice it to say that these instructions, when read together with instruction D-9, properly informed the jury of what was required to convict Anderson of aiding and abetting the armed robbery.

The appellant also contends that the court erred in its order of conviction by invoking Mississippi Code Annotated section 47-7-3(d) (1972). He contends that there was no proof in the record to show that he had any knowledge that a gun was to be used in the crime committed or that he personally robbed or attempted to rob anyone, and for these reasons he should not have been sentenced under this section of the Code. If we understand appellant’s argument, he is contending that he should not have been sentenced as a principal because he was convicted as an aider and abetter. Mississippi Code Annotated section 97-1-3 (1972) states as follows: “Every person who shall be an accessory to any felony, before the fact, shall be deemed and considered a principal, and shall be indicted and punished as such; and this whether the principal has been previously convicted or not.” We read this statute to mean what it says. Had Taylor murdered someone during the commission of the robbery, Anderson could have been indicted and punished for the murder, notwithstanding the fact that he was only aiding and abetting the robbery. It follows that Anderson was properly indicted and punished for robbery by use of a firearm.

Appellant’s remaining assignment of error is without merit.

There being no reversible error, this case must be and is hereby affirmed.

AFFIRMED.

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

      . In its order of conviction the trial court stated that Anderson would not be eligible for any supervised earned release or for parole in accordance with section 47-7-3(d). We note that that section has been amended subsequent to the order sentencing appellant which was dated April 4, 1980. The section as amended provides that no person shall be eligible for parole who shall on or after January 1, 1977, be convicted of robbery or attempted robbery through the display of a firearm until he shall have served ten (10) years if sentenced to a term or terms of more than ten (10) years or. if sentenced for the term of the natural life of such person.


text:
    H. M. SESSUMS et ux. v. INDUSTRIAL FARMS, INC.
    No. 52591.
    Supreme Court of Mississippi.
    April 8, 1981.
    Rehearing Denied May 6,1981.
    David M. Sessums, Varner & Parker, Vicksburg, for appellants.
    Thomas D. Lee, Forest, for appellee.
    Before ROBERTSON, P. J., and BROOM and HAWKINS, JJ.
   Appeal from Chancery Court, Scott County; Osborn Guyton Idom, Chancellor.

AFFIRMED.

LEE, J., took no part.


author: SHORES, Justice. TORBERT, Chief Justice SHORES, Justice.

text:
    Fred RAINES and Lassiter Land Company, Inc. v. Johnny WILLIAMS.
    79-224.
    Supreme Court of Alabama.
    February 6, 1981.
    Rehearing Denied April 10, 1981.

      Michael Gillon and James P. Green of Brown, Hudgens, Richardson, Whitfield & Gillon, Mobile, for appellants.
    William L. Utsey, Butler, for appellee.
   SHORES, Justice.

This is an appeal by the defendants from a judgment following a jury verdict for plaintiff in the amount of $20,000 in a case arising from an accident between a car driven by plaintiff Williams and a Caterpillar timberjack driven by defendant Raines and owned by the Lassiter Land Company.

The accident occurred on January 11, 1978, at around 6:45 a. m. It was still dark. Williams had just crested a hill and was negotiating a curve when he collided with the 1976 Caterpillar timberjack, which is a large piece of heavy logging equipment designed for loading logs in the woods. The timberjack was not equipped with lights or reflectors and was going ten miles per hour. Williams estimated that he was going around 55 miles per hour. Advisory State Highway Department signs were posted on either side of the road, stating “Industrial Entrance — 45 MPH.” The legal state speed limit was 55 miles per hour. Williams sustained a whiplash injury, was hospitalized and was unable to work for a period. His car was damaged.

Williams’s complaint alleged that Raines, as the agent and employee of Lassiter Land Company, negligently operated the timber-jack, causing the accident. The defendants asserted plaintiff’s contributory negligence as an affirmative defense. At trial, the judge refused to allow any oral testimony about the posted advisory sign. He admitted defendants’ exhibits three and five, which were, respectively, a photograph of the sign and a photograph of the scene with the sign shown as one of the surrounding conditions. This photograph, although showing the sign and its position relative to the scene of the accident, does not show “45 MPH.” The judge refused to allow photograph six, which clearly shows “45 MPH.” The judge refused to allow the district engineer of the State Highway Department to testify on the subject of the advisory sign. By way of explanation, the trial judge observed on the record prior to trial:

Let’s go to trial. I’m not going to get into any conversations about that sign. If you [defendants’ counsel] want to talk about it being an industrial entrance, the fact he lives in the area, he is familiar with it, has seen trucks and trailers running back and forth across the road, there is a little hill there and all that, the surrounding circumstances and conditions. I am not going to let you get into that sign. I think it puts undue weight and so forth on the sign and is not a basis of law.

The defendant made the following offer of proof after showing the witness the photographs of the signs which the court had disallowed:

Q. Those two pictures show some highway signs and those signs read, Industrial Entrance Forty-five Miles Per Hour. What is the significance of, if any, of those signs?
A. Those are advisory signs, advising the motorists of some upcoming change in the characteristic of a road, or some change in the condition, such as this sign is used for cattle crossing, curves in the road, the yellow sign, intersecting roads and this type thing.
Q. In this particular instance, the sign puts a lower speed limit. Tell me what that means again.
A. It is a suggested speed. It is not a speed limit.

The defendants assert that the trial court committed reversible error in (1) excluding as evidence photographs of the advisory speed limit sign and testimony of the State Highway Department engineer and the investigating officer relating to the sign, and (2) excluding defendants’ requested charges numbered three, four, five, six, fifteen, and sixteen. We do not agree with appellants’ assertions and we affirm the trial court’s judgment.

The court did not err to reversal in excluding testimony and photographs of the sign. The court stated that introduction of two photographs was sufficient to demonstrate the existence of the sign and that any other testimony put undue weight and importance on the sign as one factor or condition among other surrounding circumstances. It is permissible to introduce evidence to describe the locus in quo or scene of the accident, Smith v. Lawson, 264 Ala. 389, 394, 88 So.2d 322 (1956). Photographs and testimony are relevant and admissible to help the jury to better understand the persons, object, locale, or conditions in issue. However, relevancy and introduction of both testimony and photographs are within the sound discretion of the trial court. This discretion is not reviewable in the absence of a gross abuse of that discretion. Costarides v. Miller, 374 So.2d 1335 (Ala. 1979), Moon v. Nolan, 294 Ala. 454, 318 So.2d 690 (1975). The trial court’s refusal to permit the testimony and photographs is not an abuse of discretion.

The court did not err in refusing to give defendants’ requested charges. It is the province of the court to instruct the jury on the law applicable to the case, and it is the province of the jury to apply the law as it is given to them to the facts of the case. The giving of a charge which invades the province of the jury is error, Triplett v. Daniel, 255 Ala. 566, 52 So.2d 184 (1951); 88 C.J.S. Trial § 267 (1955). The court’s charges properly stated the law without repetition and did not invade the jury’s province.

Appellants’ requested charge numbered three concerned the rules of the road on the legal speed limit and on reckless driving. The court in its charge gave the legal speed limit and rules of the road, including Ala. Code 1975, § 32-5-91,' which states that:

Any person driving a vehicle on a highway shall drive the same at a careful and prudent speed not greater than is reasonable and proper, having due regard to the traffic, surface and width of the highway and of any other conditions then existing and no person shall drive any vehicle upon a highway at such a speed as to endanger the life, limb or property of any person.

The court’s oral charge included the following:

Whether or not he was speeding or not is for your consideration and for you to determine from the evidence. The posted speed limit in an area according to the testimony was fifty five miles per hour; however, the code says as follows: Any person driving a vehicle on a highway shall drive the same at a careful and prudent speed not greater than is reasonable and proper, having due regard to the traffic, surface and width of the highway and of any other conditions then existing. And no person shall drive any vehicle on a highway at such a speed to endanger the life or limb or property of any persons. I charge you it is in your discretion to determine whether the plaintiff was exceeding a reasonably prudent speed.

Since the trial court charged the jury on the effect of § 32-5-91, his exclusion of the reckless driving statute was not reversible error, Rule 45, ARAP.

Defendants’ requested charges numbered four and five erroneously equate the legal speed limit with the posted speed limit of 45 miles per hour and state that driving in excess of the posted speed limit was negligence per se. These charges were incorrect and properly denied. ' Defendants’ charges numbered six requested that § 32-5-91 be given to the jury. The court’s charge included this. Defendants’ charges numbered fifteen and sixteen requested that the court charge the jury with a driver’s duty to keep a lookout and anticipate the presence of other drivers, especially while approaching another vehicle from the rear. The court included these in its oral charge.

The court’s refusal to give charges which were repetitive was not reversible error. We, therefore, affirm the court’s judgment.

AFFIRMED.

MADDOX, FAULKNER, JONES, BEATTY and ADAMS, JJ., concur.

TORBERT, C. J., and ALMON and EM-BRY, JJ., dissent.

TORBERT, Chief Justice

(dissenting).

A party is permitted to introduce evidence of conditions at the accident scene in order to establish the degree of care expected of the respective parties. See, Smith v. Lawson, 264 Ala. 389, 88 So.2d 322 (1956). Although the judge allowed testimony that the plaintiff was familiar with the road and the location of the plant entrance, I believe the defendant was also entitled to introduce evidence of the warning given by way of the “Industrial Entrance” and “45 M.P.H.” advisory signs. A careful review of the record reveals that only one photograph picturing the signs was admitted, and in that photograph the signs were so distant that the sign lettering was not discernible. I believe evidence of the signs and the related testimony of the State Highway Department district engineer and the state trooper were admissible as relevant to the degree of care reasonably expected of plaintiff under the circumstances. It was clear error for the judge to exclude all evidence of the advisory sign and suggested speed, and I would reverse.

ALMON and EMBRY, JJ., concur.

On Application for Rehearing

SHORES, Justice.

The appellant has filed a motion to determine the amount of interest payable on the judgment in this case under Rule 37, Alabama Rules of Appellate Procedure. Rule 37 states that:

Unless otherwise provided by law, if a judgment for money in a civil case is affirmed or the appeal is dismissed, whatever interest is provided by law shall be payable from the date the judgment was entered in the trial court. If a judgment is modified or reversed with a direction that a judgment for money be entered in the trial court, the certificate of judgment shall contain instructions with respect to allowance of interest.

In this case, the jury rendered a verdict against the defendants in the amount of $20,000, on October 9, 1979. On December 6, 1979, the defendants appealed to this Court. On September 18, 1980, this Court dismissed the appeal on the grounds that no final judgment was entered on the jury verdict, and, therefore, the judgment under appeal was not final and appealable. On September 22, 1980, the Choctaw Circuit Court entered a judgment in favor of the plaintiff on the jury verdict. On October 3, 1980, the defendants’ motion to reinstate their appeal was granted.

The question here is whether the plaintiff is entitled to interest from the date of the jury verdict or from the date final judgment was ultimately entered on that verdict. We hold that he is entitled to interest from the date of final judgment, as the delay in entering judgment was not caused by the defendants’ actions. This Court, among others, has held that “when the delay in entering judgment on the verdict was occasioned by the party against whom it was rendered, the successful party, on appeal, is entitled to interest from the date of the verdict,” rather than from the later date of judgment. Berry v. Druid City Hospital Board, 333 So.2d 796, 805 (Ala. 1976); see Annot., 1 A.L.R.2d 479 (1948). However, when, as here, the delay is not caused by the party against whom the judgment is rendered but by the court responsible for rendering judgment, there is neither reason nor justice in further penalizing the party against whom the judgment was rendered. In such a situation, interest should be paid as given by the statute, “from the date the judgment was entered in the trial court,” ARAP, Rule 37, until final payment. Sanders and Fenwick v. Rives, 3 Stewart 109, 116 (Ala. 1830).

The appellant’s motion to allow interest from September 22, 1980, the date of the judgment, is hereby granted.

OPINION EXTENDED. MOTION TO ALLOW INTEREST GRANTED.

All the Justices concur.

APPLICATION FOR REHEARING OVERRULED.

MADDOX, FAULKNER, JONES, BEATTY and ADAMS, JJ., concur.

TORBERT, C. J., and ALMON and EM-BRY, JJ., dissent.


author: PER CURIAM. JONES, Justice EMBRY, Justice

text:
    Charles Dean THOMAS, a minor who sues by his mother and next friend, Mrs. Charles R. Thomas v. Dr. Kurt M. NIEMANN.
    79-619.
    Supreme Court of Alabama.
    Feb. 6, 1981.
    Rehearing Denied April 10, 1981.

      William J. Baxley and Charles A. Dauphin of Baxley, Stuart, Ward & Dillard, Birmingham, for appellant.
    Marshall H. Fitzpatrick of Norman, Fitzpatrick & Wood, Birmingham, for ap-pellee.
   PER CURIAM.

Plaintiff, Charles Thomas, a minor fourteen years of age, brought this action by his mother as next friend against Dr. Kurt Niemann for the alleged negligence of Dr. Niemann in treating Thomas surgically on or about January 25, 1973, by negligently leaving sutures in plaintiff’s leg. The leg became infected beginning July, 1979, and sutures from the 1973 surgery were discovered when the leg was operated on in January, 1980. The suit was filed February 12, 1980. Act No. 513, Acts 1975, contains a medical liability statute of limitations, Code 1975, § 6-5-482, that was pleaded by motion to dismiss. The motion was granted and judgment entered dismissing the action and taxing costs. Plaintiff appeals from that judgment.

The single issue raised by this appeal is whether Act No. 513, Acts 1975, is unconstitutional under Article IV, § 45, of the Alabama Constitution of 1901 because: (1) the subject of the Act is not clearly expressed in its title; and (2) the Act contains more than 'one subject.

The Alabama Constitution of 1901 provides in Article IV at § 45: “Each law shall contain but one subject, which shall be clearly expressed in its title, except general appropriation bills, general revenue bills, and bills adopting a code, digest, or revision of statutes. . . . ”

In our recent case of Street v. City of Anniston, 381 So.2d 26 (Ala.1980), we held that § 4 of Act No. 513, Acts 1975 (codified at Code 1975, § 6-5-482(a)), is a traditional statute of limitations and, therefore, is not subject to constitutional infirmity under § 45, saying:

Code 1975, 6-5-482(a), is similarly titled “a statute of limitations,” and commences the running of the statute from the time of the act or omission giving rise to the cause of action. It does not, however, act as a grant of immunity; our case law has established that, in malpractice actions, legal injury occurs at the time of the negligent act or omission, whether or not the injury is or could be discovered within the statutory period. Garrett v. Raytheon, supra [368 So.2d 516], Hudson v. Moore, 239 Ala. 130, 194 So. 147 (1940), Sellers v. Edwards, 289 Ala. 2, 265 So.2d 438 (1972). Thus, the Medical Liability Act contains a traditional statute of limitations, one which commences the running of the statute from the accrual of the cause of action, and is not subject to constitutional infirmity under § 45.
Plaintiffs attempt to distinguish their case from those cited by pointing out that Raytheon, Hudson and Sellers all involved the introduction of a foreign agent into- the body of the plaintiff, while the instant case merely involved an omission on defendant’s part. In Sellers, a bulldog clamp was left in the plaintiff’s body after an operation; in Hudson, a gauze sponge was not removed during an operation; in Raytheon, the plaintiff’s injuries resulted from exposure to radiation. This distinction is unpersuasive, however. Raytheon, Hudson and similar cases were not premised on any physical trespass to the plaintiffs’ bodies, but on the occurrence of a legally cognizable injury, no matter how slight, which resulted immediately upon the taking place of the negligent act or omission. In these cases, the Court held that, although the actual injury initially incurred was so slight that it was not discovered until years later, the cause of action accrued, nevertheless, at the time of the act or omission complained of.

381 So.2d 26, at p. 31.

Street did not consider whether the Act was unconstitutional on the basis that it addressed more than one subject, the second and only remaining contention made here.

We hold that Act No. 513 does not contain more than one subject in contravention of the provisions of § 45 of the Constitution of Alabama of 1901. It is evident from the title as well as the provisions of the Act that the Act is a comprehensive statute dealing with medical liability in this state.

The title and Section 1 of Act No. 513 are as follows:

AN ACT
To provide a definite statute of limitations in liability actions; to eliminate the ad damnum clause in complaints alleging liability; to define the duty of care; to require warranties of cure to be in writing; to prevent advance payments from being considered admissions of liability. In lieu of the scintilla rule, to require evidence of substantial weight and prova-tive [sic] effect in medical liability actions; to provide for periodic payments of awards in medical liability actions; to authorize the Insurance Commissioner to establish a joint underwriting association and to provide rules for such joint underwriting association; to provide for voluntary arbitration of disputes; and to require insurance carriers to report claims and costs incurred to the Insurance Commissioners.
Be It Enacted by the Legislature of Alabama :
Section 1. This act may be cited and known as the “Alabama Medical Liability Act.”

Every provision of the Act is referred to seriatim in the title. Although better draftsmanship might have dictated a general statement of the scope or purpose of the Act before delineating each provision, nevertheless, the purpose of § 45 was served. As the Court said many years ago in Lindsay v. United States Savings & Loan Association, 120 Ala. 156, 24 So. 171 (1898):

The Constitution does not contemplate a multiplicity of titles; it contemplates but one title, and leaves the form which may be given it to legislative discretion. It may be expressed in general words, or it may be a brief statement of the subject, or it may be an index to, or an abstract of, the contents of the Act.

120 Ala. at 172, 24 So. 171. The subject of the Act is sufficiently expressed in the title, and the Act contains no more than one subject.

As we have so often said, § 45 should not be construed so as to handicap the legislative process. The constitutional purpose in requiring single subject legislation is laudatory but has been met when the separate provisions of a bill are germane to the bill’s general purpose. In Opinion of the Justices, 294 Ala. 555, 319 So.2d 682 (1975), the purpose of § 45 is addressed as follows:

The purposes of the “single subject” requirement Const. of Ala., 1901, § 45, are generally stated as: (a) notification to the public of the nature of the pending legislation; (b) avoidance of fraud on the legislature by inadvertent passage of provisions not related to the title; and (c) prevention of logrolling legislation. Boswell v. State, 290 Ala. 349, 276 So.2d 592, appeal dismissed 414 U.S. 1118, 94 S.Ct. 855, 38 L.Ed.2d 747 (1973). The title of a bill need not specify every provision contained. The “one subject” test of § 45 is satisfied when the bill’s provisions are all referable to and cognate of the subject of the bill. Boswell, supra; Opinion of the Justices, 275 Ala. 254, 154 So.2d 12 (1963).

Because we hold that Act No. 513 meets the requirements of § 45 of the Constitution, we need not address the argument advanced that constitutionality is dependent upon Act No. 20, Acts of Alabama, Regular Session 1977, by which Act the 1975 Code was adopted.

We have stated that a statute of limitations is generally viewed as a remedial statute so that the statute in effect at the time suit is filed rather than the one in effect at the time of the accrual of the cause of action applies unless the later statute clearly states to the contrary. Street v. City of Anniston, supra. Furthermore, the legislature may create or shorten periods of limitation provided a reasonable time is allowed for existing causes of action to be brought. Street, supra; Coleman v. Holmes, 44 Ala. 124 (1870). This enactment does provide such a reasonable time for existing causes of action to be brought.

Under the provisions of Act No. 513, the plaintiff in this case had four years from January, 1973, until January, 1977, to bring his action. The Act also provides for one year after its effective date to bring an action if more than four years have theretofore expired. Thus, it provided a reasonable time for bringing the action. This action was not brought within that time and was, therefore, properly dismissed.

The judgment appealed from is affirmed.

AFFIRMED.

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

JONES, J., concurs specially.

FAULKNER, EMBRY and BEATTY, JJ., dissent.

JONES, Justice

(concurring specially):

I concur specially in order to emphasize the limited effect of the instant opinion and to analyze its holding in relationship to our recent cases of Street v. City of Anniston, 381 So.2d 26 (Ala. 1980), and Ramey v. Guyton [1980] 394 So.2d 2 (Ala.1980).

It can hardly be overly emphasized that the only constitutional challenge made in the instant case is that the Medical Malpractice Statute (Act 513) violates the multiple subject prohibition of § 45. I acknowledge that the inartful draftsmanship of this Act’s title provides a highly persuasive argument in support of Appellant’s claim of constitutional invalidity. Nonetheless, I agree with the majority that, despite the title’s technical deficiencies, the summation of all of its parts meets the single subject requirement of § 45.

The single subject test is not violated merely because the Act deals with multiple aspects of the same subject matter. Clearly, § 4 (creating a new statute of limitations), § 5 (prohibiting ad damnum clauses), § 6 (establishing the duty of care), § 8 (allowing arbitration), § 10 (providing defendants an optional mode for payment of certain judgments), and § 11 (defining the effect of advance payments) all relate to medical liability actions. Admittedly, more difficult of resolution is whether §§ 7, 9, and 11 (relating to medical malpractice insurance) deal with a separate subject and thus run afoul of § 45. Had these provisions of the Act not been “clearly expressed in its title,” unquestionably, the second of the dual requirements of § 45 would have been violated. But I agree with the majority that the inclusion of the insurance provisions does not render the Act a two-subject bill. I am persuaded that all the provisions of this Act are referable to and cognate of the broad general subject of the bill, which is reasonably and fairly discernible from its title.

This case represents the fourth constitutional challenge of § 4 of the Medical Malpractice Act (statute of limitations) to reach this Court within a one-year period.' At the risk of oversimplification, a brief summary of these holdings may be helpful to Bench and Bar in analyzing and applying the Act within varying statute of limitations contexts.

Perhaps our beginning point must predate these most recent medical malpractice cases and start with certain dicta in Plant v. R. L. Reid, Inc., 365 So.2d 305 (Ala.1978), which dealt with a statute of repose in the Architects and Builders Act (T. 7, § 23(1), Code 1940). The appellee in Plant, contending for validity of this statute of repose, sought to analogize its provisions with those of an earlier version of the Medical Malpractice Act which had been held constitutionally valid. The proposed analogy was rejected because, unlike the statute in Plant, the Medical Malpractice Statute was a traditional statute of limitations, commencing to run with the accrual of the cause of action, i. e., with the injury.

As the majority opinion in the instant case reflects, the dicta in Plant became the express rationale for the holding in Street (and were followed in McCauley v. Cunningham, 381 So.2d 31 (Ala.1980)), rejecting a § 45 attack on § 4 of the Act. The Street Court held that the defendant doctor’s alleged misdiagnosis was the injury-causing act (or omission) giving rise to (/. e., accruing) the cause of action. Because the claims in Street were brought neither within the two-year period following such act or omission nor within the one-year period following the effective date of the Medical Malpractice Statute, the Court held the claims were barred.

Ramey, while also upholding the Statute, held that the claim was timely filed because the period of limitations did not commence to run with the initial act of the defendant doctor in prescribing the plaintiff’s medication; rather, it began to run with the act causing injury, i. e., with the plaintiff’s alleged resultant stroke. As the concurring opinion aptly points out, the act of the defendant doctor in prescribing the birth control pills was a continuing act not consummated until the taking of the medication by the plaintiff. The accrual of the cause of action did not occur in the detached, unilateral act of the doctor in writing the prescription, but in the plaintiff’s acting upon the doctor’s advice, so that there was an implied act on the part of the doctor with each taking of the pills by the plaintiff as prescribed.

Thus, the act causing injury, thereby accruing the cause of action and commencing the running of the statute of limitations, occurred on the last date on which the plaintiff took the prescribed medication. To hold otherwise necessarily would render § 4 a statute of repose rather than a traditional statute of limitations, and would subject the Act to the constitutional attack under § 45 that prevailed in Bagby Elevator and Electric Co., Inc. v. McBride, 292 Ala. 191, 291 So.2d 306 (1974).

In summary, then, our case law stands solidly for the proposition that § 4 of the Medical Malpractice Act is not violative of either aspect of § 45 of the State Constitution (one subject clearly expressed in the title); and this for the reason that, unlike the statute of repose challenged in Bagby Elevator, § 4 of the Medical Malpractice Act, as judicially interpreted, is a traditional statute of limitations. It is equally clear from the cases that § 4 will be applied consistently with traditional notions of statutes of limitations and not in accord with principles governing statutes of repose; i. e., actions filed under the Medical Malpractice Act will be tested for limitation of actions purposes by measuring the allowable time for filing of the claim from the date of accrual of the cause of action.

In conclusion, one further observation: This Court’s interpretation of § 4 (§ 6-5-482) is predicated, at least in part, on earlier holdings which rejected the discovery rule in medical malpractice cases. Hudson v. Moore, 239 Ala. 130, 194 So. 147 (1940); Sellers v. Edwards, 289 Ala. 2, 265 So.2d 438 (1972); see, also, Garrett v. Raytheon Co., Inc., 368 So.2d 516 (Ala.1979), reaffirming rejection of the discovery rule in a non-malpractice context. In other words, the leaving of the sponge in plaintiff’s operative incision in Hudson ; the clamp in Sellers ; and the exposure to radiation in Ray-theon constitute the act causing injury (thus accruing the cause of action), and not the date of discovery of the injury.

Although, personally, I have cast my vote in favor of the discovery rule (see my dissenting opinion in Raytheon), I readily acknowledge the majority’s rationale to the effect that the injury (whether known or unknown) accrued simultaneously with the act or omission of the alleged tortfeasor. I also accede to the desirability for consistency and uniformity in our holdings.

Therefore, the legislature’s denomination of § 4 in the Act’s title as a statute of limitations should be taken at face value and § 4 should be upheld as against a § 45 attack. Once the statute of limitations section is validated, however, it should be interpreted according to the traditional test, which commences its running with the accrual of the cause of action, that is, with the injury. While this interpretation may pose serious problems in other than medical malpractice statutes, it seems to me to have absolved, at least, the statute of repose problem. That is to say, including the medication prescription situation posed in Ra-mey, as there interpreted, I am unable to hypothesize any fact situation involving a health care provider where the alleged wrongful act or omission does not, at the same time, constitute the alleged resultant injury. (I realize the risk of making this statement, for, as surely as I expose the limitations of my imagination, such a case will cross my desk.)

At any rate, I believe for all practical purposes, this Court’s interpretation of § 6-5-482 effectively subsumes any potential statute of repose problem. If I am correct in this, the medical malpractice statute of limitations, as now interpreted, aborts any dichotomy with § 13 of our State Constitution. Stated otherwise, if the limitation of “two years next after the act or omission or failure giving rise to the claim” is interpreted as a traditional statute of limitations (thus saving its constitutionality under § 45) which cannot commence until the accrual of the cause of action, and if the only facts presented reveal an act or omission or failure simultaneously with the alleged injury, then all issues involving a § 13 attack based on a statute of repose premise have been mooted. Consequently, even the prescribed outer limits (four years or until the eighth birthday of a minor under four) will be tested according to statute of limitations and not statute of repose standards.

EMBRY, Justice

(dissenting):

As noted by the majority, the Alabama Constitution of 1901 provides in Article IV at § 45: “. . . Each law shall contain but one subject which shall be clearly expressed in its title, except general appropriation bills, general revenue bills and bills adopting a code, digest, or revision of statutes. ...”

Act No. 513, Acts 1975, contains sixteen sections. Of those, § 4 creates a new statute of limitations for medical liability actions; § 5 prohibits ad damnum clauses in medical liability complaints; § 6 establishes the duty of care owed to a patient by a physician, surgeon, dentist and hospital; § 8 allows parties to a medical liability claim to settle the claim by arbitration; § 10 allows defendants in medical liability actions an optional method for payment of judgments in excess of $100,000; and § 11 provides that advance payments in medical liability actions by the defendant or his insurer are not admissible until there is a final judgment in favor of the plaintiff. These sections relate to medical liability actions and are codified at Code 1975, §§ 6-5-482 through 6-5-487.

Again, as noted by the majority, Street is addressed to the issue of whether § 4 of Act No. 513, Acts 1975 (codified at Code 1975, § 6-5-482(a)), is a traditional statute of limitations or whether it is a grant of immunity for which a notation thereof must be included in the title of the act as required by Article IV, § 45 of the Constitution of Alabama of 1901. We held that section of the act is a traditional statute of limitations; therefore not subject to constitutional infirmity because its title failed to note that it barred a cause of action. In Street, we did not consider whether the act was unconstitutional on the basis that it addressed more than one subject.

I am of the opinion that Act No. 513 is unconstitutional because it contains more than one subject in contravention of the provisions of § 45 of the Constitution of Alabama of 1901. It is evident from the title as well as the provisions of the act that the act deals with both medical liability actions and medical liability insurance. Thus, it is apparent the act deals with, at the very least, two separate subjects. As will be seen, it is my opinion that it deals with even more and runs afoul of § 45:

The purposes of the “single subject” requirement Const, of Ala., 1901, § 45, are generally stated as: (a) notification to the public of the nature of the pending legislation; (b) avoidance of fraud on the legislature by inadvertent passage of provisions not related to the title, and; (c) prevention of logrolling legislation. [Citations omitted.] The title of a bill need not specify every provision contained. The “one subject” test of § 45 is satisfied when the bill’s provisions are all referable to and cognate of the subject of the bill.

Opinion of the Justices, 294 Ala. 555, 564, 319 So.2d 682, 691 (1975).

I am not able to conclude that the provisions of Act No. 513 satisfy the “one subject” test. Although there may be some relationship between medical liability and insurance covering such liability, it is clear that this act is susceptible to the very danger sought to be avoided by the constitutional prohibition against an act containing more than one subject. Provisions of this act cover a wide diversity of topics ranging from the statute of limitations, the amendment of the suspension of limitations as to minors, the form of a complaint and the duty of care applicable in medical liability actions, to the organization, regulation, and reporting requirements of medical liability insurance carriers. Therefore, Act No. 513, Acts 1975, with its § 4 relating to the statute of limitations, and special suspension of limitations as to minors is unconstitutional as originally enacted, in my judgment.

Section 4 was codified as Code 1975, § 6-5-482, when Act No. 20, Acts 1977, adopted the 1975 Code. I would therefore consider whether Act No. 20, adopting the 1975 Code effective 31 October 1977, made § 6-5-482, Code 1975, constitutionally valid. An act adopting a code of laws is not constitutionally required to contain only one subject, Gibson v. State, 214 Ala. 38, 106 So. 231 (1925); Bluthenthal v. Trager & Co., 131 Ala. 639, 31 So. 622 (1901); therefore, as of 31 October 1977, Code 1975, § 6-5-482, was constitutionally enacted.

Section 6-5-482 provides:

(a) All actions against physicians, surgeons, dentists, medical institutions or other health care providers for liability, error, mistake or failure to cure, whether based on contract or tort, must be commenced within two years next after the act or omission or failure giving rise to the claim, and not afterwards; provided, that if the cause of action is not discovered and could not reasonably have been discovered within such period, then the action may be commenced within six months from the date of such discovery or the date of discovery of facts which would reasonably lead to such discovery, whichever is earlier; provided further, that in no event may the action be commenced more than four years after such act; except, that an error, mistake, act, omission or failure to cure giving rise to a claim which occurred before September 23, 1975, shall not in any event be barred until the expiration of one year from such date.
(b) Subsection (a) of this section shall be subject to all existing provisions of law relating to the computation of statutory periods of limitation for the commencement of actions, namely, sections 6-2-1, 6-2-2, 6-2-3, 6-2-5, 6-2-6, 6-2-8, 6-2-9, 6-2-10, 6-2-13, 6-2-15, 6-2-16, 6-2-17, 6-2-30 and 6-2-39; provided, that notwithstanding any provisions of such sections, no action shall be commenced more than four years after the act, omission or failure complained of; except, that in the case of a minor under four years of age, such minor shall have until his eighth birthday to commence such action. (Acts 1975, No. 513, § 4.)

A statute of limitations is generally viewed as a remedial statute so that the statute in effect at the time suit is filed rather than the one in effect at the time of the accrual of the cause of action applies ■ unless the later statute clearly states to the contrary. Street v. City of Anniston, 381 So.2d 26 (Ala.1980). Furthermore, the legislature may create or shorten periods of limitation provided a reasonable time is allowed for existing causes of action to be brought. Street, supra; Coleman v. Holmes, 44 Ala. 124 (1870). This enactment does not, however, provide such a reasonable time for existing causes of action to be brought. At the time Code 1975, § 6-5-482, became effective by virtue of Act No. 20, Acts 1977, on 31 October of that year, it provided only that actions might be commenced on claims accruing before 23 September 1975 within a year after 23 September 1975. Therefore, at the time it became a part of the Code, it was ineffective to provide a year from 23 September 1975 within which to file claims accruing before 23 September 1975. Prior to 31 October 1977, since Act No. 513 was constitutionally infirm, a plaintiff was allowed two years from the act or omission giving rise to a cause of action for medical malpractice in which to commence an action. If the cause of action were not discovered, or could not reasonably have been discovered by the plaintiff within two years, then the plaintiff was allowed an additional six months from the time of discovery to commence an action, provided the action was commenced within six years after the act giving rise to the cause of action. Tit. 7, § 25(1), Code 1940 as amended (Recompiled 1958).

Additionally, because Charles Thomas was a minor at the time of the act complained of, Tit. 7, § 36, Code 1940 as amended (Recompiled 1958) (presently Code 1975, § 6-2-8), suspended the running of the limitations period as to him until he attained majority. When this cause of action was commenced on 7 February 1980, Charles Thomas was allegedly 14 years old and therefore under provisions of law prior to the effective date of § 6-5-482 his action was timely commenced. Because no provision was made for a reasonable time in which to commence an action on a claim in existence prior to 31 October 1977, and which was not barred prior to 31 October 1977, Code 1975, § 6-5-482, is ineffective as against those claims. The statute of limitations applicable to such claims was the statute in effect prior to the effective date of Code 1975, § 6-5-482; 31 October 1977.

For the reasons I have .stated, I would reverse the judgment below and remand the case for trial on its merits.

FAULKNER and BEATTY, JJ., concur.

      . A fifth case is currently pending under submission: 79-129, Reese v. Rankin Fite Memorial Hospital.


author: EMBRY, Justice.

text:
    Ex parte DORSEY TRAILERS, INC., a Corporation (Re: Pearl MINCEY, etc. v. DORSEY TRAILERS, INC., a Corporation et al.).
    80-198.
    Supreme Court of Alabama.
    April 9, 1981.

      Harry Cole and John M. Milling, Jr. of Hill, Hill, Carter, Franco, Cole & Black, Montgomery, and L. Merrill Shirley, Elba, for petitioner.
    Frank J. Tipler, Jr. of Tipler, Fuller & Sikes, Andalusia, for respondent.
   EMBRY, Justice.

Dorsey Trailers, Inc., petitions this court for an original writ of mandamus requiring the Honorable Terry Butts, Judge of the Circuit Court of Coffee County, to compel Pearl Mincey, plaintiff below, to answer petitioner’s interrogatories and to stay further proceedings in the action for damages below until plaintiff supplies such answers.

This action arose when Bruce Mincey, deceased, was killed by the explosion of a steel drum which he was cutting with a circular saw. Plaintiff, Pearl Mincey, as administratrix of the estate of Bruce Min-cey, deceased, filed suit against petitioner for wrongful death on 6 June 1980, seeking two million dollars in damages for the death of Bruce Mincey. Plaintiff’s action was brought under the theory of the Alabama Extended Manufacturer’s Liability Doctrine and that of negligence and wanton misconduct.

The issue to be resolved is whether the trial judge abused his .discretion in denying, without an opportunity for hearing, petitioner’s motion for continuance and motion to compel answers to interrogatories.

On 6 August 1980, petitioner served written interrogatories upon the plaintiff. On 19 October 1980, petitioner, having received no response to its interrogatories, filed a motion to compel plaintiff to answer them, noting in its motion that the answers were necessary in order for petitioner to adequately. defend the action. Without ruling on the motion to compel, the trial court, on motion of plaintiff, set the case for pretrial hearing on 17 November 1980.

At the pretrial conference, petitioner requested respondent trial judge to compel plaintiff to answer its interrogatories. As set out in his pretrial order of 8 December 1980, respondent judge gave the plaintiff an additional 30 days within which to answer petitioner’s interrogatories and set the trial for 5 January 1981.

Petitioner received plaintiff’s answers to its interrogatories on 15 December 1980. On the following day petitioner filed a second motion to compel plaintiff to answer interrogatories, claiming that plaintiff’s answers were not in compliance with the Alabama Rules of Civil Procedure: being non-responsive, evasive, incomplete and inadequate to allow petitioner to properly prepare its defense; and, as such, should be treated as a failure to answer under Rule 37(a)(3), ARCP. Contemporaneously, petitioner requested a hearing on its second motion to compel.

After attempting without success to contact respondent judge in order to get a hearing on its second motion to compel, petitioner, on 17 December 1980, filed a motion for continuance of the ease until such time as plaintiff properly responded to its discovery requests. Petitioner also requested a hearing of this motion.

Without providing petitioner an opportunity to be heard on its motions, respondent judge, on 23 December 1980, issued an order summarily denying both the motion for continuance and the motion to compel, and ordered the case tried at the January 1981 term of court (week of 5 January 1981). As a result of the denial of its motions, petitioner, on 29 December 1980, filed this petition for an original writ of mandamus, asking this court to require the trial judge to compel plaintiff to properly respond to petitioner’s interrogatories, to further order the trial judge to continue this case from 5 January 1981 and to file an answer to the petition for mandamus. This court, on 30 December 1980, entered its order staying all proceedings in the action in the circuit court pending disposition of the petition for writ of mandamus in this court. Answer and brief of respondents were ordered filed as well as reply of petitioner thereto.

The interrogatories propounded to plaintiff by petitioner sought information concerning, inter alia, the facts and circumstances upon which plaintiff based her claims that petitioner was responsible for the death of Bruce Mincey, the locations and identities of all persons upon whom plaintiff relied in reaching her conclusions, and the identities of all persons expected to testify in the action, together with the substance of their expected testimony. Petitioner also inquired of plaintiff the location and identity of any expert witness expected to testify, the subject matter about which each expert was expected to testify, the substance of the facts and opinions of which each expert was expected to testify and a summary of the grounds of the opinion of each expert. In addition, petitioner requested the medical history of the decedent, including any physical or mental impairments, and his educational background and work history.

In answer to this petition, respondent trial judge, Honorable Terry Butts, asserts that he was familiar with the facts surrounding the case prior to the pretrial hearing on 17 November 1980. Based on this knowledge, he felt that most of the facts in the case were better known by petitioner than by plaintiff and that depositions on file appeared to answer most of the interrogatories. Respondent judge, therefore, opined that petitioner had all necessary and proper information and was merely trying to delay going to trial.

Respondent judge also maintains that the procedure in his court has always been that the party desiring further answers to its interrogatories specify the ones which need to be answered or answered further. He notes that petitioner’s second motion to compel failed to state which of the answers were considered evasive or incomplete and failed to take issue regarding those to which plaintiff had objected as improper.

Plaintiff’s brief echoes respondent judge’s contentions that the contents of oral depositions had already answered the questions posed by petitioner’s interrogatories and that petitioner held the most knowledge of the pertinent facts, stating: “We cannot conceive of any facts that we could have that may be material that defendant does not already know.” Plaintiff also argues that certain interrogatories call for facts and opinions unknown to plaintiff, but known and held by her attorney, and are improper attempts to discover the theories of her counsel. Furthermore, plaintiff states she did not answer certain interrogatories because she failed to see how the answers would be admissible or lead to admissible evidence, or how the information sought by these interrogatories would help petitioner or harm plaintiff. Finally, the interrogatories requesting names and addresses of all witnesses expected to testify are objected to as improper, and plaintiff maintains the trial court has never required such information to be supplied in response to a discovery request.

Replying to the arguments of respondent judge and plaintiff, petitioner contends it is entitled to the factual basis of plaintiff’s claims and all facts going to prove or disprove petitioner’s defenses. The discovery material, petitioner maintains, is not limited to admissible evidence, but extends to all matters which are relevant and reasonably calculated to lead to the discovery of admissible evidence. The fact that certain interrogatories are directed toward factual areas already covered by depositions is not a valid ground for objection, according to petitioner, which asserts that the various forms of discovery were meant to be cumulative and complementary, not mutually exclusive. Petitioner further argues that those interrogatories seeking contentions of plaintiff’s attorney and names of all witnesses whom plaintiff expects to testify at trial are permissible.

Further, petitioner takes the position that those interrogatories considered improper by plaintiff were not properly objected to by her pursuant to Rule 33(a), ARCP, which requires the reason for objection to be stated and that the attorney sign the objection being made by him. Petitioner argues that it is obvious from a reading of its interrogatories and plaintiff’s answers thereto that the answers are evasive, incomplete, improperly objected to, and contrary to the letter and spirit of the Alabama Rules of Civil Procedure; consequently the defective answers should have been treated as a failure to answer under Rule 37, ARCP. Combining these considerations with the fact that respondent trial judge denied petitioner’s motions without a hearing based on his belief petitioner had all necessary information, petitioner asserts that the actions of respondent judge constituted a clear abuse of discretion.

Ordinarily, we would not review rulings regarding discovery proceedings in the trial courts. However, in this case there are basic questions to be answered, arising from the latest amendments to ARCP regarding discovery, that have not heretofore been addressed by this court.

Mandamus is a proper means of review to determine whether a trial judge abused his discretion in limiting a party’s right to discovery. Assured Investors Life Insurance Co. v. National Union Associates, Inc., 362 So.2d 228 (Ala.1978). The utilization of a writ of mandamus to compel or prohibit discovery is restricted because of the discretionary nature of a discovery order. The right sought to be enforced by mandamus must be clear and certain with no reasonable basis for controversy about the right to relief. The writ will not issue where the right in question is doubtful. Lassiter v. Werneth, 275 Ala. 555, 156 So.2d 647 (1963).

As the court stated in Campbell v. Regal Typewriter Co., Inc., 341 So.2d 120 (Ala.1976):

The Alabama Rules of Civil Procedure permit very broad discovery and the rules must be broadly and liberally construed. Cole v. Cole Tomato Sales, Inc., 293 Ala. 731, 310 So.2d 210 (1975). However, Rule 26(c) recognizes that the right of discovery is not unlimited and gives the court broad power to control the use of the process and to prevent its abuse by any party. The rule does not allow an arbitrary limit on discovery, but instead vests the trial court with discretion in the discovery process. . . .

For this reason, mandamus will issue to compel discovery only in those cases where a clear abuse of discretion is shown. Ex parte Alabama Power Co., 280 Ala. 586, 196 So.2d 702 (1967).

In order to determine whether such a clear abuse of discretion is present in this case, we must examine the interrogatories in light of the purpose and language of the rules of discovery in the Alabama Rules of Civil Procedure and the cases construing them. Looking to case law, we find an established rule that cases construing the Federal Rules of Civil Procedure are authority for construction of the Alabama Rules of Civil Procedure. Bracy v. Sippial Electric Co., Inc., 379 So.2d 582 (Ala.1980); Alabama Power Co. v. White, 377 So.2d 930 (Ala.1979); State v. Horton, 373 So.2d 1096 (Ala.1979); Smith v. Wilcox County Board of Education, 365 So.2d 659 (Ala.1978); Assured Investors Life Insurance Co. v. National Union Associates, Inc., supra.

“Generally speaking, the purpose of modern discovery is to assist the administration of justice, to aid a party in preparing and presenting his case or his defense, to advance the function of a trial in ascertaining truth, and to accelerate the disposition of suits. Beyond this, the rules for discovery are designed to eliminate, as far as possible, concealment and surprise in the trial of lawsuits to the end that judgments be rested upon the real merits of cases and not upon the skill and maneuvering of counsel.” 23 Am.Jur.2d, Depositions and Discovery, § 155 (1965). Stated otherwise, the rules seek to “make a trial less a game of blind man’s buff and more a fair contest with the basic issues and facts disclosed to the fullest practicable extent.” United States v. Procter and Gamble Co., 356 U.S. 677, 78 S.Ct. 983, 2 L.Ed.2d 1077 (1958); Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947).

It is the trial court’s job to exercise its broad discretion in a manner that will implement this philosophy of full disclosure of relevant information and at the same time afford a party, or others, maximum protection against harmful side effects which would result from unnecessary disclosure. Ex parte Guerdon Industries, Inc., 373 So.2d 322 (Ala.1979).

The scope of discovery which may be had by interrogatories propounded pursuant to Rule 33, ARCP, is determined, as is the scope of other available forms of discovery, according to Rule 26, ARCP.

Paragraph (b)(1) of Rule 26, in part, states:

In General. Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including ... the identity and location of persons having knowledge of any discoverable matter. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.

The rule makes it plain that discovery is not limited to matters competent as evidence at trial. “Relevancy,” as used in our discovery rules, means relevant to the subject matter of the action and a reasonable possibility that the information sought will lead to other evidence that will be admissible. Drewes v. Bank of Wadley, 350 So.2d 402 (Ala.1977); 8 Wright and Miller, Federal Practice and Procedure § 2008 (1970).

Several of petitioner’s interrogatories requested information on the physical, mental and medical history of the deceased, including such pertinent matters as visual impairment. Petitioner contends this information,'in conjunction with’questions about the deceased’s educational background and work history, is relevant to the ability of the deceased to perceive and appreciate the danger of his task and to read and understand any warning labels which may have been on the drum. Plaintiff’s response to these interrogatories was “not answered on advice of counsel,” which response plaintiff’s brief explains by saying:

These were not answered on advice of counsel because counsel fails to see how they have anything to do with the case or how they could lead to anything that might have anything to do with this case, and counsel for the plaintiff does not know the answer ... I do not see how any of the information sought by these or any other would help the plaintiff [defendant?] or harm the defendant [plaintiff?].

Given the purpose and broad scope of discovery, discussed supra, petitioner was clearly entitled to the information concerning the physical, mental and medical background of the deceased. It is not the prerogative of a party answering interrogatories to refuse to answer because of his opinion regarding the usefulness of the information sought or its relative benefit or harm to the parties involved.

A defendant is entitled to the factual basis of the plaintiff’s claim and all facts going to prove or disprove defendant’s defense. 4 Moore’s Federal Practice, ¶ 26.57. The contention that counsel for plaintiff does not know the facts surrounding the background of the deceased is hardly justification for failure of the plaintiff, mother of the deceased, to answer interrogatories addressed to her.

Under Rule 33, a party must give full and complete answers to interrogatories served on him by another party. While a party may not have a duty to search out new information, it is undisputed that a party has a duty to provide all information available to him. Hickman v. Taylor, supra; 8 Wright & Miller, Federal Practice and Procedure, § 2172 (1970). Information which is controlled by a party is available to him. Trane Co. v. Klutznick, 87 F.R.D. 473 (W.D.Wis.1980).

If the answering party in good faith believes certain interrogatories ask for information beyond the permissible scope set out in Rule 26, ARCP, it is incumbent upon him to properly object under Rule 33, ARCP.

Rule 33(a), in part, states:

Each interrogatory shall be answered separately and fully in writing under oath, unless it is objected to, in which event the reasons for objection shall be stated in lieu of an answer. The answers are to be signed by the person making them, and the objections signed by the attorney making them. . ..

Objections to interrogatories must be specific and supported by a detailed explanation of why the interrogatories are improper. In re Folding Carton Antitrust Litigation, 83 F.R.D. 260 (N.D.Ill.1979); United States v. 58.16 Acres of Land, 66 F.R.D. 570 (E.D.Ill.1975), 8 Wright & Miller, Federal Practice and Procedure § 2172 (1970). General objections may result in waiver of the objections. In re Folding Carton Antitrust Litigation, supra; White v. Beloginis, 53 F.R.D. 480 (S.D.N.Y.1971).

Available information which an answering party is under a duty to disclose also includes facts discovered and opinions held by his own expert witnesses. In response to petitioner’s interrogatory asking if any examination of the drum head had been made and, if so, what tests or analyses had been performed, plaintiff replied as follows:

“Mr. Payne has examined it and what kind of test, if any, he made, I don’t know.”

Having identified Mr. Payne in an earlier answer as an expert witness whom she expected to call at trial, plaintiff was under an obligation to ascertain from him whether he had conducted any tests or analyses of the drum, and, if so, sufficient facts about the tests or analyses to enable plaintiff to properly respond to the interrogatory.

It is also well-established that a party has an obligation to reveal information held by his attorney. Naismith v. Professional Golfers Association, 85 F.R.D. 552 (N.D.Ga.1979); Pilling v. General Motors Corp., 45 F.R.D. 366 (D.Utah 1968); Maryland ex rel. Peters v. Baltimore & O. R. Co., 7 F.R.D. 666 (E.D.Pa.1947); Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947). In answer to petitioner’s interrogatory seeking plaintiff’s contentions regarding the nature of the drum’s defect, the relation of petitioner’s conduct to the defect, and the failure of petitioner to remedy the defect, plaintiff stated:

“My attorney will have to answer this.”

Plaintiff argues that this interrogatory called for information held solely by her attorney, of which she had no knowledge. Plaintiff’s reply to this interrogatory ■was improper. A party clearly cannot refuse to answer interrogatories on the ground that the information sought is solely within the knowledge of his attorney. Miller v. Doctor’s General Hospital, 76 F.R.D. 136 (N.D.Okl.1977); 8 Wright & Miller, Federal Practice and Procedure, §§ 2171 & 2177 (1970).

Plaintiff argues that these contention-seeking interrogatories are also objectionable on the ground they attempt to uncover the legal theories and conclusions of her attorney. Plaintiff extends this argument to several other interrogatories which ask for plaintiff’s opinions as to the acts and omissions constituting the bases of her claims, to which plaintiff responded: “Not answered on advice of counsel.”

By amendment in 1970, paragraph (b) of Rule 33, ARCP, in part, now states:

An interrogatory otherwise proper is not necessarily objectionable merely because an answer to the interrogatory involves an opinion or contention that relates to fact or the application of law to fact.. .

Many older cases denied a party the right to obtain the opinions and contentions of other parties through interrogatories. However, the overwhelming majority of recent decisions have adopted the view of the amended rule and allowed interrogatories seeking opinions and contentions of fact, or of mixed law and fact, while generally refusing to permit interrogatories asking for purely legal conclusions. 8 Wright & Miller, Federal Practice and Procedure § 2167 (1970). The Advisory Committee Note to Rule 33 of the Federal Rules of Civil Procedure is informative on this point:

... Efforts to draw sharp lines between facts and opinions have invariably been unsuccessful, and the clear trend of the cases is to permit ‘factual’ opinions. As to requests for opinions or contentions that call for the application of law to fact, they can be most useful in narrowing and sharpening the issues, which is a major purpose of discovery. ... On the other hand, under the new language interrogatories may not extend to issues of ‘pure law,’ i. e., legal issues unrelated to the facts of the case. . . .

In keeping with this line of thought, the modern trend has recognized that interrogatories seeking opinions or contentions as to the acts or omissions constituting the basis of a claim of negligence are, by nature, questions of mixed law and fact and are, therefore, proper. 8 Wright and Miller, Federal Practice and Procedure § 2167 (1970). Expressing this view in Hartsfield v. Gulf Oil Corp., 29 F.R.D. 163 (D.C.Pa.1962), the federal district court said:

It is now settled that interrogatories are an appropriate means for obtaining a specification of the facts upon which a claim of negligence is founded .... The objection that the interrogatories require the statement of conclusions or opinions is unjustified in the present circumstances. Opinions and conclusions are inherent in any specification of the factual basis of a claim of negligence. The allegation of negligence itself is the statement of a conclusion, and since negligence may be pleaded broadly, a statement of the facts upon which the conclusion is based can hardly be forbidden as the expression of a conclusion.

Petitioner’s interrogatories seeking the contentions of plaintiff concerning the acts and omissions constituting negligence on the part of petitioner should have been answered. As to other contention-seeking interrogatories, such discovery should generally be allowed if the answers would be useful in narrowing the issues or serve some other substantial purpose related to an essential element of a claim, unless a pure conclusion of law is called for. At any rate, the manner in which plaintiff objected was improper under Rule 33, ARCP, as discussed supra, and was hardly a sufficient statement of the specific ground for objection to allow petitioner a fair opportunity to rebut those reasons and to permit respondent trial judge to make a proper and informed decision on whether discovery should be compelled.

As discussed, supra, Rule 26 ARCP, also allows a party to discover the identity and location of persons having knowledge of any discoverable matter. Petitioner posed interrogatories seeking from plaintiff the names and addresses of any persons who observed or were around the location of the explosion, whether any statements had been taken by plaintiff from such persons, and the substance of the information held by such persons. Plaintiff simply responded that these matters had been covered by deposition. Plaintiff gave the same reply to various interrogatories seeking the details of the educational background and work history of her decedent, the actions of the deceased at the time of the explosion, and the facts upon which plaintiff relied in contending that petitioner was negligent in the sale of the drum.

A party may not object to interrogatories merely on the ground that the questions contained therein were answered by deposition. The various methods of discovery were intended to be cumulative and complementary rather than alternative or exclusive. A party may both take depositions and propound written interrogatories, as long as he is not trying to circumvent a ruling by the trial court, or to harass or oppress the adverse party. The burden is on the adverse party to show that a hardship or injustice will be caused by the use of successive methods of discovery. Taylor v. Atchison, T. & S. F. Ry. Co., 33 F.R.D. 283 (W.D.Mo.1962); Stonybrook Tenants Association, Inc. v. Alpert, 29 F.R.D. 165 (D.C.D.Conn.1961); Bullard v. Universal Miliwork Corp., 26 F.R.D. 144 (E.D.N.Y.1960).

In addition to requesting facts about persons with knowledge of the incident, petitioner asked plaintiff to give the names of all persons she intended to call as witnesses at trial, which she refused to do. If the circumstances justify it, a judge may properly require this information to be revealed. However, we will not hold that a discovering party has the right to demand from the adverse party a list of all witnesses to be called at trial. The majority of jurisdictions in this country do not require such discovery, although there is considerable authority for the opposing view. 8 Wright & Miller, Federal Practice & Procedure, § 2013. Subparagraph (b)(1) of Rule 26, ARCP, permits a party to discover the identity and location of persons having knowledge of any discoverable matter and the answering party is required under Rule 26(e) to supplement his response to interrogatories seeking this information. Since these provisions effectively allow a party to discover the identity and location of any potential witnesses to be called by the opposition party, denial of the right to require disclosure of the specific persons which the adverse party intends to call as witnesses at trial will not subject the discovering party to surprise at trial. However, it will prevent substantial burdens being placed upon parties who have not completed their trial preparations or strategy.

The final point to be examined is plaintiff’s response that “defendant has the answer to this already,” to the interrogatory of petitioner seeking information about warning labels on the drum, and respondent trial judge’s assertion that one reason he did not grant the motion to compel answers to interrogatories was because he felt most of the facts were better known by petitioner. This was not a proper reason for plaintiff’s refusal to answer or for respondent judge’s denial of the motion to compel answers. A claim that much of the information sought by a defendant is in defendant’s possession, if true, has no bearing upon an otherwise appropriate discovery request. Dykes v. Morris, 85 F.R.D. 373 (D.C.Ill.1980).

All told, 37 of the 50 interrogatories propounded by petitioner received responses from plaintiff that the matter had already been covered by the complaint or by deposition, that the question was not answered on advice of counsel, or simply stating the word “answered.” A reading of the remaining 13 answers reveals that several are nonresponsive, incomplete or evasive. In addition, plaintiff did not object, in the manner required by Rule 33, ARCP, to any interrogatory which she did not answer.

Such a disregard of the principles of law governing discovery should not have been overlooked by respondent judge and cannot be overlooked by this court. To permit this case to proceed to trial without requiring further answers from plaintiff to petitioner’s interrogatories would contravene the purpose of the rules of discovery and might cause petitioner to suffer grave injustice. The bounds of the trial court’s discretion to compel or deny discovery are broad. However, in this case those bounds have been overstepped.

If, upon the basis of this decision, respondent trial judge fails to grant petitioner’s motion to compel answers to interrogatories and fails to order a continuance of the action for damages until such time as plaintiff complies, a writ to effectuate those actions will issue upon request of petitioner.

■ WRIT GRANTED CONDITIONALLY.

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


author: PER CURIAM.

text:
    Richard S. FOUNTAIN, as Executor of the Estate of Fields Jones, Deceased v. Rodney C. LOPER.
    78-498.
    Supreme Court of Alabama.
    April 10, 1981.
    Bayless E. Biles of Wilkins & Bankester, Bay Minette, for appellant.
    Joseph M. Brown, Jr. of Cunningham, Bounds, Byrd, Yance & Crowder, Mobile, for appellee.
   PER CURIAM.

In an unpublished memorandum opinion dated January 16, 1981, this Court ordered that the submission of Case No. 79-469 be set aside and the appeal dismissed. This Court further ordered reinstatement of the appeal in Case No. 78-498, rendering null and void all proceedings of the trial court (purporting to amend the jury verdict) that were entered subsequent to the taking of the appeal in Case No. 78-498.

The confusion — out of which these various orders and counterorders arose — grew out of a jury verdict that found for the Plaintiff against the “Defendant” in the context of multi-defendant pleadings. While a majority of the Court was of the opinion that only one Defendant remained in the case at the time of its submission to the jury, the minority expressed the view that this determination should be left to the trial court on remand of the cause.

Upon resubmission and our further consideration of the entire record on appeal, we are constrained to hold that the verdict is inconsistent with the case as postured by the pleadings, the issues tried, and the trial judge’s jury instructions.

Therefore, the trial judge erred in not granting the Appellant’s motion for a new trial.

REVERSED AND REMANDED.

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


text:
    Carol Daly BOEHLERT, as Administratrix of the Estate of Donald E. Boehlert, Deceased et al. v. ROYAL GLOBE INSURANCE COMPANY, a corporation et al.
    79-44.
    Supreme Court of Alabama.
    April 10, 1981.
    L. Tennent Lee, III of Cleary, Lee, Porter, Evans & Rowe, Huntsville, and C. Lyn-wood Smith, Jr. of Hornsby, Blankenship, Smith- & Robinson, Huntsville, for appellants.
    Eugene De Martenson of Huie, Fernam-bucq, Stewart & Smith, Birmingham, and Melvin D. Kraft, New York City, for appel-lees.
   PER CURIAM.

Affirmed on authority of Slagle v. Parker, 370 So.2d 947 (Ala.1979).

TORBERT, C. J., and MADDOX, FAULKNER, ALMON, SHORES, BEAT-TY and ADAMS, JJ., concur.

JONES and EMBRY, JJ., dissent.