author: EMBRY, Justice. JONES, Justice

text:
    Patti M. GLENN, etc. v. UNITED STATES STEEL CORPORATION, INC., et al.
    80-505.
    Supreme Court of Alabama.
    Nov. 19, 1982.
    Francis H. Hare, Jr., Terrell Wynn, Alex Newton, and James J. Thompson, Jr., of Hare, Wynn, Newell & Newton, for appellant.
    Bibb Allen of London, Yancey, Clark & Allen, Birmingham, and Reggie Copeland, Jr., of Nettles, Barker & Janecky, Mobile, Robert G. Tate and J. Ross Forman, III of Thomas, Taliaferro, Forman, Burr & Murray, Birmingham, for appellee U.S. Steel Corp.
   EMBRY, Justice.

The dependent widow of Charlie Glenn, deceased, brought this wrongful death action against United States Steel Corporation and Bucyrus-Erie Company, pursuant to § 25-5-11, Code 1975. Mrs. Glenn appeals from a judgment rendered on a jury verdict in favor of U.S. Steel and Bucyrus-Erie. We affirm.

The facts of the case are as follows: U.S. Steel contracted with J.M. Foster, Inc., to construct an addition to a building at U.S. Steel’s Fairfield Works. The contract involved, among other things, the installation of two 42-inch pipelines. Under the terms of this contract, Foster was treated as an independent contractor. U.S. Steel furnished all pipes and valves needed for this project, while Foster furnished the rest of the equipment, materials and labor required for such installation. All materials, including those furnished by U.S. Steel, were placed under Foster’s control for storage and installation. U.S. Steel neither directed the manner in which Foster was to perform the work called for by the contract, nor did it provide any supervision on this project. The following provision was included in the contract:

“Contractor shall take all reasonable measures and precautions at all times to prevent injuries to or the death of any of his employees or any other person who enters upon Owner’s premises. Such measures and precautions shall include, but shall not be limited to, all safeguards and warnings necessary to protect workmen and others against any conditions on Owner’s premises which could be dangerous and to prevent accidents of any kind whenever work is being performed in proximity to any moving or operating machinery, equipment or facilities, whether such machinery, equipment or facilities are the property of or are being operated by, the Contractor, his subcontractors, the Owner or other persons.”

Foster had been performing construction work at the Fairfield Works on a continuing basis for approximately 15 years and the supervisors working for Foster knew of the hazards presented by high voltage wires on the property.

Part of the material needed to install the pipelines inside the building were supports for 42-inch pipe. Foster furnished the pipe supports, which were delivered to the job site by the fabricator. U.S. Steel designated certain areas on the premises for storage of Foster’s materials and equipment, including an area next to an interior on-premises road known as the scrap haul road. It was along the scrap haul road that Foster’s employees unloaded the pipe supports and stored them for future use, because this area was near the building where the pipe supports were to be installed.

Six 44,000-volt electric wires crossed the scrap haul road near where the pipe supports were stored. Warning signs were placed on either side of where the wires crossed over the roadway advising of the danger and the voltage of the lines. Testimony at trial established that the wires were clearly visible at a distance from either end of scrap haul road and were an open and obvious danger to all involved.

On 11 August 1977, Charlie Glenn, employed by Foster as a crane oiler, and crane operator Mike Washburn, also an employee of Foster, were instructed by John Gower, Foster’s construction superintendent, to move a 50-ton Bucyrus-Erie crane to assist in the loading of pipe supports onto a flatbed truck on the scrap haul road. Glenn drove the crane while Washburn operated the boom from the cab while facing the rear of the vehicle. While the crane was being moved, Gower stopped the crane to remind Glenn and Washburn where the pipe supports were located. Before he left, Gower reminded Glenn and Washburn to “watch out for them wires.”

On the day of the accident, Marvin Blal-ock, the equipment foreman of Foster, also warned Glenn and Washburn about the overhead wires on scrap haul road. Blalock testified that he told them that as far as he was concerned, “those wires are all hot and don’t get any closer than 17 feet of those wires.”

When the cranes reached the area where the pipe supports were located, the pipefit-ters, who were Foster employees, directed Glenn to position the crane in an area near the overhead wires. Once the crane was in position, Glenn got out of the crane, and Washburn proceeded to lift the boom of the crane into position. Since Washburn faced the rear of the crane while it was being moved, he never saw the overhead wires. When asked during trial as to whether he knew the overhead wires were in the vicinity, Washburn testified, “Well, I knew that, I guess, subconsciously, I knew that they were in the general area because we had passed under them before, but, you know, you don’t have time to pay attention or I didn’t pay attention to it before.... ” At no time did Washburn get out of the cab of the crane and survey the area where the pipe supports were located.

Glenn got off the crane when it stopped and Washburn began to boom the crane up and swing it over to the pipe supports. While doing so, Washburn inadvertently caused the crane to come into contact with the overhead wires, electrocuting Glenn, who had grabbed hold of the handrail of the crane while he was still on the ground.

In her original complaint, plaintiff, Glenn’s widow, charged U.S. Steel with negligence and wantonness in: failing to warn Glenn of the presence of the high voltage electrical wires; failing to de-ener-gize the wires; and designating areas for storage of materials and supplies in dangerous proximity to those wires. The complaint was subsequently amended to include Bucyrus-Erie as a party defendant. Plaintiff alleged that Bucyrus-Erie was negligent in the manufacture and sale of a defective crane.

The case was tried before a jury and a verdict returned in favor of U.S. Steel and Bucyrus-Erie; judgment was entered accordingly. Plaintiff’s motion for a new trial was denied.

Mrs. Glenn concedes that no error was committed in the trial court’s charge to the jury regarding the liability of Bucyrus-Erie and it is not an appellee here. It is a well settled rule that this court has the authority to reverse as to one defendant and leave undisturbed the verdict in favor of another defendant. See Hamischfeger Corporation v. Harris, 280 Ala. 93,190 So.2d 286 (1966).

The issue presented on appeal is whether the trial court’s jury instructions regarding a landowner’s duty to an employee of an independent contractor constituted prejudicial error requiring reversal. The jury instructions in dispute are as follows:

“. .. Now, a landowner or the owner of property owes a duty to the employee or to an employee of an independent contractor to warn of any hidden dangers or latent defects on the property of which the property owner knows and which the independent contractor or his employee does not know, nor such that the independent contractor or employee ought to know... .
“Now, a landowner owes no duty to an employee of an independent contractor for dangers which are open and obvious of which the contractor or its employee is aware of or which he should be aware in the exercise of reasonable care, commensurate with the facts and circumstances which then exist. The owner of premises owes a duty to an employee of an independent contractor to warn of dangers which are incidental to the work, which the contractor had agreed to perform of which the owner of the premises is aware and of which the contractor is not fully aware or should not know in the exercise of reasonable care which is commensurate with all the facts and circumstances which then exist.”

Under the facts of this case, the relationship between U.S. Steel and Foster is clearly that of landowner and independent contractor. This court has defined the duty owed by an owner of premises to an independent contractor on a number of occasions.

“[A]n owner of premises is not responsible to an independent contractor for injury from defects or dangers which the contractor knows of, or ought to know of. If the defect or danger is hidden and known to the owner, and neither known to the contractor, nor such as he ought to know, it is the duty of the owner to warn the contractor and if he does not do this, of course, he is liable for resultant injury. Crawford Johnson & Co. v. Duffner, 279 Ala. 678, 189 So.2d 474 (1966).”

Veal v. Phillips, 285 Ala. 655, 657-658, 235 So.2d 799 (1970). This rule applies equally to those employees of the independent contractor on the premises engaged in work in furtherance of performing the contract.

In McRee v. Woodward Iron Co., 279 Ala. 88, 182 So.2d 209 (1966), an employee of an independent contractor suffered fatal injuries from an electrical shock caused by a nearby crane coming into contact with uninsulated, high voltage electrical power lines owned by the defendant, Woodward Iron Company. A verdict was rendered in favor of Woodward Iron, and the adminis-tratrix of the employee appealed, claiming the trial court erred by charging the jury as follows:

“ T charge you, gentlemen of the jury, that a landowner is not liable to an invitee on its premises because of an injury to the invitee resulting from an open and obvious dangerous condition of which the invitee is aware or of which he ..should be aware in the exercise of reasonable care, and if you are reasonably satisfied from the evidence in this case that plaintiff suffered his injuries and damages as a proximate result of an open and obvious dangerous condition of which plaintiff was aware or should have been aware in the exercise of reasonable care, then your verdict must be for the defendant.’ ”

This court held that the charge in McRee, which closely resembles the charges at issue in this case, was a correct statement of law regarding the duty owed by a landowner to an invitee and cited Claybrooke v. Bently, 260 Ala. 678, 72 So.2d 412 (1954), and Lam-son & Sessions Bolt Co. v. McCarty, 234 Ala. 60, 173 So. 388 (1937), as authority.

It is apparent from the evidence that the overhead high voltage lines, owned and maintained by U.S. Steel, were an open and obvious danger to all personnel who worked at U.S. Steel’s Fairfield Works. The supervisory personnel of Foster were fully aware of this danger and warned Foster’s employees of the attendant hazards on several occasions. U.S. Steel never received a request from Foster to deenergize the power lines over the scrap haul road, nor did Foster inform U.S. Steel of plans to use lift cranes in the general vicinity of the power lines.

Any employee who works with heavy equipment, especially lift cranes, should know of the consequences which can occur if such equipment comes into contact with a high voltage power line; in fact, the following warning was displayed on the door of the crane involved in the event which made the basis of this suit:

“DANGER
“DEATH OR INJURY MAY RESULT FROM CONTACTING ELECTRICAL LINES.
“UNLAWFUL TO PLACE ANY PART OF THIS MACHINE OR LOAD WITHIN 10 FEET OF HIGH VOLTAGE LINES OF 50,000 VOLTS OR LESS.”

Another warning was mounted in the cab where the crane operator sits and it stated:

“WARNING
“DO NOT OPERATE WITHIN 17 FEET OF OVERHEAD ELECTRICAL WIRES. CLOSER CLEARANCE MUST BE SPECIFICALLY AUTHORIZED.”

Therefore, it is apparent that Foster’s employees were fully aware of the dangers involved with lift cranes and power lines and that extreme care should be used when operating near such an open and obvious danger. Foster had in its possession five smaller cranes known as “cherry pickers.” These cherry pickers could have easily been utilized to load the pipe supports rather than the large 50-ton crane. Utilizing the cherry pickers would have lessened the danger of contact with the power lines. There was no evidence submitted to show why the smaller cranes were not used. While the existence of any high voltage power lines creates a dangerous situation, it would work an undue hardship on a landowner to hold him responsible for any injury or death resulting from someone’s contact with the high voltage power lines which are open and obvious and of which that person is aware, or should be aware in the exercise of reasonable care. U.S. Steel took preventive measures to make the overhead high voltage lines less of a hazard to all personnel in the area: Warning signs advising of the danger and voltage of the lines were placed on either side of those power lines where the same crossed the scrap haul road as well as the fact the power lines were 37 to 39 feet above the roadway at the site of the accident. There was no proof in this case that these conditions deviated from any standards of safety applicable to the surrounding conditions and circumstances.

It is Mrs. Glenn’s contention that the “open and obvious” rule cannot be applied in this ease. We cannot agree. Under the particular facts of this case that rule clearly applies. This being true, the trial court did not err in giving the disputed jury charges.

For the reasons stated, the judgment of the trial court is due to be and is hereby affirmed.

AFFIRMED.

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

FAULKNER and.JONES, JJ., dissent.

MADDOX, J., not sitting.

JONES, Justice

(dissenting).

I respectfully dissent. I would approach the issue thusly: In the ordinary relationship of landowner/independent contractor, and under normal circumstances, the contested portion of the trial court’s charge finds support in the evolving process of the common law.

“[0]ur decisions are to the effect that an owner of premises is not responsible to an independent contractor for injury from defects or dangers which the contractor knows of, or ought to know of. If the defect or danger is hidden and known to the owner, and neither known to the contractor, nor such as he ought to know, it is the duty of the owner to warn the contractor and if he does not do this, of course, he is liable for resultant injury. Crawford Johnson & Co. v. Du finer, 279 Ala. 678, 189 So.2d 474 (1966).” Veal v. Phillips, 285 Ala. 655, 657-58, 235 So.2d 799 (1970).

This principle, reaffirmed in Tice v. Tice, 361 So.2d 1051 (Ala.1978), is supported by logic and sound reasoning. When a landowner knows that his invitee is aware of both the conditions on the premises and the dangers involved therein, or that such conditions and dangers are so obvious that his invitee can be assumed to know of them, it is not unreasonable for that landowner to assume that his invitee will, at the least, exercise that amount of care, commensurate with the risks involved, necessary to protect himself from harm. Failing to so protect himself, then, the invitee voluntarily assumes the risk of continuing on the premises.

This traditional view that either a warning from the landowner, or the obviousness of the condition, is sufficient to discharge all duties of the landowner was set out in Restatement of the Law of Torts, Vol. 2, § 343 (1934):

“§ 343. DANGEROUS CONDITIONS KNOWN TO OR DISCOVERABLE BY POSSESSOR.
“A possessor of land is subject to liability for bodily harm caused to business visitors by a natural or artificial condition thereon, if, but only if, he
“(a) knows, or by the exercise of reasonable care could discover, the condition which, if known to him, he should realize as involving an unreasonable risk to them, and
“(b) has no reason to believe that they will discover the condition or realize the risk involved therein, and
“(c) invites or permits them to enter or remain upon the land without exercising reasonable care
“(i) to make the condition reasonably safe, or
“(ii) to give a warning adequate to enable them to avoid the harm without relinquishing any of the services which they are entitled to receive, if the possessor is a public utility.”

The inherent weakness of this principle has been recognized by the courts and by leading authorities in the field of tort law. In Harper and James, The Law of Torts, Vol. 2, § 27.13, pp. 1494, 1495 (1956), the authors note:

“The Restatement view is wrong in policy. The law has never freed landownership or possession from all restrictions or obligations imposed in the social interest. The possessor’s duty to use care towards those outside the land is of long standing. And many obligations are imposed for the benefit of people who voluntarily come upon the land. For the invitee, the occupier must make reasonable inspection and give warning of hidden perils. Why should his duty stop at this point short of reasonable care? It might be said to be a matter of reasonable expectation: the invitee expects the premises to be prepared for him only up to the point where he knows they are not. But this should not be conclusive. Reasonable expectations may raise duties, but they should not always limit them. The gist of the matter is unreasonable probability of harm in fact. And when that is great enough in spite of full disclosure, it is carrying the quasi-sovereignty of the landowner pretty far to let him ignore it to the risk of life and limb.”

See, also, Keeton, Personal Injuries Resulting From Open and Obvious Conditions, 100 U.Pa.L.Rev. 629 (1952); Prosser, Business Visitors and Invitees, 26 Minn.L.Rev. 573 (1942).

I would add that the “open and obvious” rule of § 343 of the Restatement is patently inconsistent with the basic premise of all tort law: the protection of persons and property, through the exercise of reasonable care, against unreasonable and foreseeable risks of harm.

Alabama case law, however, along with that of an increasing number of other jurisdictions, recognizes that in certain situations the usual rules of premises liability cannot, and do not, apply. Where, for example, the unreasonable risk of foreseeable harm to the invitee remains despite the landowner’s warning of the condition, or the fact that the condition is “open and obvious,” the landowner’s duty with respect to the independent contractor or its employees is not discharged by the warning or the openness or obviousness of the condition. Alabama Power Company v. Henderson, 342 So.2d 323 (Ala.1977).

In the earlier case of Kingsberry Homes Corporation v. Ralston, 285 Ala. 600, 235 So.2d 371 (1970), the Court discussed the holding in Foster & Creighton Co. v. St. Paul Mercury Indemnity Co., 264 Ala. 581, 88 So.2d 825 (1956), where the trial court refused to give the defendant’s requested jury instruction that if the plaintiff knew of the unsafe condition, he could not recover from the defendant. The Kingsberry court noted that the trial court in Foster and Creighton “was correct in refusing this charge because mere knowledge of the dangerous condition unaccompanied by an appreciation of the danger and a want of due care is insufficient to constitute contributory negligence [on the part of the injured invitee].” Kingsberry Homes, 285 Ala. at 607, 235 So.2d 371. Further, the Kingsber-ry Court found no error in the lower court’s refusal to give defendant’s requested charges, basing its holding on the Foster and Creighton principles.

The American Law Institute’s Restatement (Second) of Torts, (1977), reflects this refinement of premises liability law:

“§ 343A. KNOWN OR OBVIOUS DANGERS.
“(1) A possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness.” (Emphasis supplied.)

The record before us reveals circumstances of a nature which, in my opinion, compel the conclusion that the trial court’s instructions were too restrictive with respect to U.S. Steel’s duty to Plaintiff’s intestate— circumstances from which the jury could find that U.S. Steel should have anticipated the unreasonable risk of harm posed by the possibility of a contact between a crane’s boom and the high voltage wires at the Fairfield Works. Those circumstances include U.S. Steel’s ownership, maintenance, and control of the uninsulated power lines; U.S. Steel’s authority to deenergize the power lines; U.S. Steel’s designation of the contractor’s supply areas in proximity to the overhead wires; U.S. Steel’s responsibility of premises inspection, which should have revealed both the danger involved in, and the foreseeability of injury occurring as a result of, the proximity of the storage areas to the lines.

Notwithstanding U.S. Steel’s warning the independent contractor of the presence of the wires or the contractor’s own knowledge of and appreciation for the condition and the danger involved, that knowledge in no way diminished the unreasonable risk of danger to Charlie Glenn. While U.S. Steel, as landowner, controlled the presence of the condition (and the attendant risk of harm) and could have chosen various means of diminishing the risk involved, Glenn and Washburn had no choice but to perform their assigned tasks within the framework of available equipment and supplies and existing conditions. This disparity between the positions of landowner and invitee/independent contractor, under the instant circumstances, once U.S. Steel anticipated the risk of harm posed by the presence of the wires in the area of the construction, furnishes an inference that it was under the duty to take additional steps to protect the independent contractor’s employees. Within the factfinding prerogative, the jury should be free to evaluate whether U.S. Steel’s failure to take such protective and preventive measures proximately resulted in the death of Plaintiff’s intestate.

I would adopt the position of § 343A of the Restatement (Second) of Torts, as an extension of this State’s principles of premises liability.

Furthermore, the majority opinion retains the 1934 version of the Restatement of the Law of Torts as to the landowner’s duty with respect to open and obvious dangers, while Beloit Corporation v. Harrell, 339 So.2d 992 (Ala.1976), adopted the 1977 version of the Restatement in a products liability context. See, also, Ford Motor Company v. Rodgers, 337 So.2d 736 (Ala. 1976). I find no reasonable basis for perpetuating the property-rights-over-personal-rights notion. I would simply apply § 343A, Restatement (Second) Torts, equally across the board.

FAULKNER, J., concurs.

      . This application of the Known and Obvious Dangers principles of the Restatement (Second) of Torts is distinguishable from Weeks v. Alabama Electric Cooperative, Inc., 419 So.2d 1381 (AIa.1982), which was decided favorably to the general contractor on principles of retained right of control of the work place and the work related activities allegedly causing the injury.


source: Caselaw Access Project

author: ADAMS, Justice.

license: Public Domain

text:
    Paul H. JONES v. Margaret C. JONES.
    80-842.
    Supreme Court of Alabama.
    Nov. 19, 1982.

      Michael L. Roberts of Floyd, Keener & Cusimano, Gadsden, and Church, Trussel & Robinson, Pell City, for appellant.
    William E. Hereford and Jo Beth Martin of Hereford, Blair & Hill, Pell City, for appellee.
   ADAMS, Justice.

This appeal involves an action for the sale and division of land located in St. Clair County. Plaintiff, Paul H. Jones, brought action against Margaret C. Jones, on July 16, 1979, alleging that they each held an undivided interest, as tenants in common, in certain disputed family property. The trial court entered judgment for defendant, finding that she had adversely possessed the property under Code 1975, § 6-5-200, so as to defeat plaintiff’s interest as a tenant in common. From that judgment, plaintiff appealed.

There is no dispute that defendant lacks record title to the disputed property. Therefore, the dispositive issue is: Did defendant obtain title by prescription or adverse possession, thereby justifying the trial court’s judgment entered in her favor? After reviewing the facts, we conclude that she did not. Therefore, we reverse the judgment of the trial court.

Plaintiff and defendant derive their interests in the jointly held land from George L. Jones, who died intestate in 1942. Plaintiff is one of George’s six children who survived him. Defendant is the wife of Ray Jones, one of George’s six children. In 1956, defendant and her husband moved onto the property. She testified at trial that the move was made pursuant to an agreement among the six children that the property would belong to her and Ray. Defendant explained that she and Ray were to buy the other children’s interests for $1,000.00 each. According to her, that price was set by plaintiff in 1955. In 1965, defendant and her husband acquired deeds from four of George’s six children for their interests in the property. Plaintiff did not give a deed. Defendant testified that he backed out of the agreement.

Defendant and her husband made various improvements to the property, which they farmed. Testimony at trial established that the relationship between plaintiff and Ray was anything but brotherly. The two did not get along, and their animosity apparently reached a climax in 1961 in a shooting incident. That incident occurred off the disputed property. Both were wounded. After that plaintiff apparently spent little, if any, time on the property. Ray died in 1967 and defendant inherited all of his assets. Defendant continued living on the property. Defendant testified that she and Ray had paid taxes on the property for 24 years.

Defendant argues that her payment of taxes for more than the 10-year period provided in Code 1975, § 6-5-200(a)(2), and her acts constituting adverse possession, operate to divest plaintiff of his interest in the property. Alternatively, she argues that she adversely possessed the property for a period of 20 years so as to divest plaintiff of his interest under the doctrine of prescription. We cannot accept either argument.

Code 1975, § 6-5-200, in pertinent part provides:

(a) Adverse possession cannot confer or defeat title to land unless:
(1) The party setting it up shall show that a deed or other color of title purporting to convey title to him has been duly recorded in the office of the judge of probate of the county in which the land lies for 10 years before the commencement of the action;
(2) He and those through whom he claims shall have annually listed the land for taxation in the proper county for 10 years prior to the commencement of the action if the land is subject to taxation; or
(3) He derives title by descent cast or devise from a predecessor in the title who was in possession of the land.

Defendant actually attempts to effect adverse possession by the means of having annually listed the land for taxation for ten years prior to the commencement of the action. This method is one of three alternatives provided in § 6-5-200(a), which must be supported by all the requisite elements of adverse possession. Courtney v. Boykin, 356 So.2d 162 (Ala.1978). The requisite elements of adverse possession are:

In order to establish adverse possession, as against the holder of the legal title, “the law is stringent in requiring clear proof of the requisite facts. There must be, first, an actual occupancy, clear, definite, positive, and notorious; second, it must be continued, adverse, and exclusive during the whole period described by the statute; third, it must be with an intention to claim title to the land occupied.”— Washburn on Real Property (4th Ed.) pp. 135, 136.

McDaniel v. Sloss-Sheffield Steel and Iron Co., 152 Ala. 414 at 417, 44 So. 705 at 706 (1907); quoted with approval in: Hand v. Stanard, 392 So.2d 1157 (Ala.1981); Courtney v. Boykin, supra.

Adverse possession by prescription requires the same elements, but operates outside § 6-5-200 and requires a twenty-year period. Recently, this court stated:

In Alabama there are basically two types of adverse possession, these two types being statutory adverse possession and adverse possession by prescription. Adverse possession by prescription requires actual, exclusive, open, notorious and hostile possession under a claim of right for a period of twenty years. See Fitts v. Alexander, 277 Ala. 372, 170 So.2d 808 (1965). Statutory adverse possession requires the same elements, but the statute provides further that if the adverse possessor holds under color of title, has paid taxes for ten years, or derives his title by descent cast or devise from a possessor, he may acquire title in ten years, as opposed to the twenty years required for adverse possession by prescription. Code 1975, § 6-5-200. See, Long v. Ladd, 273 Ala. 410, 142 So.2d 660 (1962).

Kerlin v. Tensaw Land & Timber Company, 390 So.2d 616 at 618 (Ala.1980).

The law of adverse possession specifically addresses the problem of one contenant attempting to effect adverse possession against another cotenant.

The possession of one tenant in common is prima facie presumed to be the possession of all, and it does not become adverse to the cotenants unless they are actually ousted, or, short of this, unless the adverse character of the possession of one is actually known to the others, or the possession of the one is so open and notorious in its hostility and exclusiveness as to put the other tenants on notice of its adverse character. Ashford v. Ashford, 136 Ala. 631, 34 So. 10.
The mere fact that a cotenant in possession has taken all the rents and profits does not show ouster of his companions. Markstein v. Shilled, 258 Ala. 68, 61 So.2d 75, and cases there cited.
Mere lapse of time and payment of taxes by one cotenant are not, in tenancies in common, necessarily acts of dis-seisin. There must be an entry and continuous exclusive possession under a claim of exclusive right. Possession and use by one tenant in common will not, of itself, repel the presumption that the possession is that of all the tenants in common. The intent to hold as exclusive owner, repudiating the rights of coten-ants, must be established by proof and brought home to them.

Monte v. Montalbano, 274 Ala. 6 at 11, 145 So.2d 197 at 200 (1962). See Emonds v. Emonds, 388 So.2d 552 (Ala.1980).

The facts of this case do not allow defendant to divest plaintiff of his interest in the disputed property either by statutory adverse possession, or by adverse possession by prescription. Although there are other obstacles preventing defendant’s claim of complete ownership of the property, the following analysis is sufficient for the purpose of our review. Defendant’s claim of statutory adverse possession is not supported by the record. Although she testified that she and her husband paid taxes on the property for 24 years, the record does not reflect the fact that the taxes were listed in their names. Section 5-6-200(a)(2) is specific in that which it requires. The specific requirement is that one claiming by adverse possession “shall have annually listed the land for taxation in the proper county for 10 years prior to the commencement of the action if the land is subject to taxation.” § 6-5-200(a)(2). We cannot infer that “paying” taxes is the same as “listing” the land for taxation in the name of the party claiming by adverse possession. It is possible to pay taxes on a parcel of land without having it listed in the payor’s name. This failure of the evidence defeats defendant’s claim by statutory adverse possession under § 6-5-200(a)(2).

Next, we consider defendant’s contention that she effected adverse possession by prescription. That claim is also unsupported by the record. As we noted above, adverse possession by prescription requires a 20-year period, as opposed to the 10-year period needed for statutory adverse possession. In the instant case, plaintiff commenced action in 1979. It is undisputed that defendant and her husband had been in possession of the property since 1956. The first incident, supported by competent evidence in the record, that arguably might support defendant’s claim for adverse possession by prescription is the 1961 shoot-out between plaintiff and defendant’s husband. Assuming, without deciding, that the incident supports defendant’s claim, it is within 20 years from the date plaintiff brought action for a sale and division of the property. Therefore, she cannot claim adverse possession for a period of twenty years and come within the doctrine of prescription.

We note that “when judgment is based on evidence taken by the trial court ore tenus, it will not be set aside unless clearly erroneous or unsupported by credible evidence under any reasonable aspect of that evidence.” Hand v. Stanard, supra; English v. Brantley, 361 So.2d 549 (Ala.1978); Hill v. Delchamps, 294 Ala. 14, 310 So.2d 871 (1975). Recognizing the application of that rule, we, nevertheless, find it necessary, considering the evidence adduced at trial, to reverse and remand for further proceedings.

REVERSED AND REMANDED.

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


author: ALMON, Justice.

text:
    MISENER MARINE CONSTRUCTION, INC. a Corporation v. Ralph P. EAGERTON, Jr., as Commissioner of Revenue of the State of Alabama.
    80-889.
    Supreme Court of Alabama.
    Nov. 19, 1982.

      Willis C. Darby, Jr., Paul D. Myrick, and J. Forrest Hinton, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen., and Herbert I. Burson, Jr., Bill Thompson, and B. Frank Loeb, Asst. Attys. Gen., and counsel and Asst, counsel for Dept, of Revenue, for appellee.
   ALMON, Justice.

On September 12, 1978, the old Dauphin Island bridge was severely damaged by Hurricane Frederic. The Alabama Highway Department issued a notice that it would accept sealed bids on Project ER-4749(1) for the “Dredging and Maintenance of Work Canal and the Removal of the Old Dauphin Island Bridges from Cedar Point to Dauphin Island.” Misener Marine Construction, Inc., (Misener), submitted the lowest bid and on October 22,1979, entered into a contract with the Highway Department for the bridge removal project. Work on the project commenced on November 9, 1979, and was completed on April 19, 1980. On March 5, 1980, the Highway Department contracted with Brown & Root, Inc., to reconstruct the bridge.

Approximately two months after Misener entered into the bridge removal contract, an examiner with the Alabama Department of Revenue wrote informing them that Mi-sener’s contract would be subject to the contractors gross receipt tax. (Code 1975, § 40-23-50). In 1980 and 1981, Misener filed Alabama Highway Contractors Gross Receipts Tax returns with the Department of Revenue and paid a total of $263,977.07 in tax. On May 1, 1981, Misener filed a formal refund petition with the Department of Revenue requesting a refund of the gross receipts tax paid. The refund was denied. Misener then filed an action seeking a writ of mandamus to compel the refund of the gross receipts tax. The circuit court held that the tax was properly levied and denied the writ.

Misener contends on appeal that the gross receipts tax was erroneously assessed and that a refund of its tax payment is due to be granted. We agree with the appellant and reverse the judgment of the trial court.

The issue is whether the work which appellant contracted to perform is subject to the gross receipts tax levied under the terms of Code 1975, § 40-23-50. That statute provides in pertinent part:

“There is hereby levied ... a privilege or license tax ... as follows:
“Upon every person, firm, or corporation engaged ... in the business of contracting to construct, reconstruct, or build any public highway, road, bridge, or street, an amount equal to five percent of the gross receipts of any such business

Although appellant had contracted only to demolish and remove the old bridges and to dredge and maintain a work canal, the trial court held that the work would be subject to the § 40-23-50 tax. The trial judge found that appellant’s performance under the contract was subject to a “dual purpose interpretation” in that the work could be viewed not only as demolition but also as “part of the total purpose of bridge construction.”

The “total purpose” language used by the trial court is set out in the case of Barron-Leggett Electric, Inc. v. Department of Revenue, 336 So.2d 1124 (Ala.Civ.App.1976). In Barron-Leggett, a contractor had agreed to install lights along portions of specified highways. Holding that the gross receipts tax applied, the Court of Civil Appeals stated, “Every contract let in the process of building a highway according to the design and specifications as prepared by the highway department would appear to be part of the total purpose of highway construction.”

However, we must point out that the contract in Barron-Leggett called for the construction of one of several component parts needed to complete a highway. It is obvious that such a contract, and any others which are let for the purpose of constructing the individual parts of a project, can properly be classified as “part of the total purpose of construction.” Yet, we do not view this “total purpose” classification as a “catch all” by which any contract ultimately related to construction, reconstruction, or building can be brought within the coverage of § 40-23-50. Indeed, to tax appellant under this “total purpose” standard would constitute an unwarranted expansion of the language set forth in the statute.

Courts are loath to expand the language of a tax statute. D. Sands, Sutherland Statutory Construction, 4th Ed., §§ 66.01 and 66.02. Moreover, when there is a reasonable doubt as to the meaning of a revenue statute, the doubt is resolved in favor of the taxpayer. It has been an established rule in this jurisdiction, as well as others, not to extend by implication the provision of a statute beyond the clear import of the language used, or to enlarge its operation so as to embrace matters not specifically pointed out. A1 Means, Inc. v. City of Montgomery, 268 Ala. 31, 104 So.2d 816 (1958); State v. Helbrun Co., 269 Ala. 164, 111 So.2d 912 (1959). Ala. Digest, Statutes, Key # 245.

The statute here in question speaks of building and construction and does not mention destruction, removal or demolition. The State argues that under all the circumstances appellant should have known that the removal project was an integral part of a later construction project and that appellant should have known that the State intended at some later time to reconstruct the bridge. We are hesitant to place a construction upon the statute which would make the subjective intent of the Highway Department the deciding factor in determining whether the tax attaches. We think the better view is that the nature of the business activity contracted for should be determinative, Guy H. James Const. Co. v. Boswell, 366 So.2d 271 (Ala.1979), rather than the long range plans or intent of the Highway Department. Indeed, if the subjective intent of the Highway Department was the determining factor, we think serious due process questions would arise.

We hasten to add, however, that under certain circumstances demolition activities can be an integral part of construction ac-' tivities and could result in taxation under § 40-23-50.

The judgment of the circuit court is therefore reversed and the cause remanded.

REVERSED AND REMANDED.

TORBERT, C.J., and FAULKNER, EM-BRY and ADAMS, JJ., concur.


author: BEATTY, Justice.

text:
    Eli SPEIGLE v. John LOTT.
    81-40.
    Supreme Court of Alabama.
    Nov. 19, 1982.

      Michael C. Moore of Watson & Moore, Huntsville, for appellant.
    L.H. Little, Jr. of Berry, Abies, Tatum, Little & Baxter, Huntsville, for appellee.
   BEATTY, Justice.

This appeal is from a summary judgment granted in favor of a third-party defendant in an action for extortion and conspiracy. For the following reasons, we affirm.

In October 1980 Central Bank of Alabama (plaintiff) filed suit against Eli Spei-gle (defendant) for non-payment of several promissory notes totaling $17,500. The defendant answered the complaint and counterclaimed against the plaintiff, alleging that the defendant was coerced into executing the note and relinquishing the proceeds to an officer of the bank, Charles Mills.

The defendant also filed a third-party complaint against John Lott. The third-party claim asserted that Lott (third-party defendant) entered a conspiracy with Charles Mills to extort money from defendant. Both the counterclaim and the third-party complaint claimed punitive damages.

In August 1981 the trial judge granted plaintiffs motion for summary judgment because all of the defenses as well as the counterclaims of the defendant were dependent for their proof upon the testimony of the defendant concerning statements made by Charles Mills, who was deceased. The application of Code 1975, § 12-21-163 —the “dead man’s statute” — precluded consideration of the testimony of the defendant. This order was appealed by defendant, but the appeal was dismissed because it was not timely filed.

On August 7, 1981, the third-party defendant moved for summary judgment. The third-party plaintiff (Speigle) did not file an affidavit in opposition to the motion for summary judgment, as he had in the instance of the plaintiff’s motion.

The trial judge, on October 1, 1981, granted the third-party defendant’s motion for summary judgment. The trial judge’s order contained the following:

“There being no counter affidavit offered in opposition thereto, and the Court giving due consideration to all matters brought before it....”

It is this order that the third-party plaintiff now appeals from.

The dispositive issue on appeal is whether there was a genuine issue as to any material fact so that the third-party defendant would not have been entitled to a judgment as a matter of law.

The third-party defendant contends that, since the third-party plaintiff did not file affidavits in opposition to the motion, the trial court did not have to look to the record to find evidence of a material fact. This contention is not supported by law. In Fountain v. Phillips, 404 So.2d 614 (Ala. 1981), this court held:

“[A]ll evidence of record, as well as that evidence formally submitted in support of or in opposition to a motion for summary judgment, should be considered in ruling on the motion.”

This holding is in accord with Rule 56(c), Alabama Rules of Civil Procedure, which states:

“(c) Motion and Proceedings Thereon. The motion shall be served at least 10 days before the time fixed for the hearing. The adverse party prior to the day of hearing may serve opposing affidavits. The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. A summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages.” (Emphasis added.)

Thus the trial judge must render a judgment in consideration of all evidence properly before him.

A motion for summary judgment must not be granted if there is a scintilla of evidence supporting the position of the non-movant. Browning v. Birmingham News, 348 So.2d 455 (AIa.1977); Folmar v. Montgomery Fair Co., 293 Ala. 686, 309 So.2d 818 (1975). In this case there is no evidence in the record, other than the pleadings of Spei-gle, to show any conspiracy or misconduct on the part of Lott, the third-party defendant. The affidavit of Speigle does not mention Lott or any co-conspirator other than Charles Mills.

In the brief of defendant there is reference to a deposition of Lott which creates an inference of evidence. However, this deposition, or any reference to it, is not included in the record on appeal. This court is bound by the record before it; and the burden is on the appellant to perfect it and prosecute the appeal as required by law and the rules of this Court. Zills v. Brown, 382 So.2d 528 (Ala.1980); Wilson v. Smith, 289 Ala. 374, 267 So.2d 446 (1972).

Because the record on appeal is devoid of the slightest particle of evidence which supports the claim of the third-party plaintiff, the order of the trial judge granting summary judgment is affirmed.

AFFIRMED.

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


text:
    AEROWAKE AVIATION, INC. v. Clifford M. WINTER, Jr. and Avemco Insurance Company.
    81-182.
    Supreme Court of Alabama.
    Nov. 19, 1982.

      John 0. Cates of Ford, Caldwell, Ford & Payne, Huntsville, for appellant.
    Keith S. Jones and Robert H. Ford of Brinkley, Ford & Fleming, Huntsville, for appellees.
   ALMON, Justice.

Aerowake Aviation, Inc. (Aerowake) appeals from a judgment against it in favor of Clifford M. Winter (Winter) and his subro-gated insurance carrier, Avemco Insurance Company (Avemco). Winter sued Aero-wake for damage to his airplane while it was parked at Aerowake’s airport facility. Winter sued on a theory of bailment, alleging that Aerowake breached its duty to exercise ordinary and reasonable care for the protection, preservation, and return of his airplane. The trial court entered judgment on a jury verdict of $7,840 for Avemco and $8,660 for Winter, and denied Aero-wake’s motion for judgment notwithstanding the verdict or, in the alternative, for a new trial.

Aerowake argues that the court erred in denying its motion for new trial because the verdict is contrary to the great weight of the evidence in that no bailment relationship existed between the parties. We disagree, and affirm.

Winter, a retired lieutenant colonel in the United States Air Force, constructed an experimental two-man aircraft over the course of several years in the late 1970’s. In the summer of 1979 he went to the North Huntsville Airport, operated by Ae-rowake, and talked with Jim Wakefield, the president and a chief stockholder of Aero-wake, about arrangements for keeping his plane at the airport. Aerowake provided services including fuel, employee attendance from 8:00 a.m. to 8:00 p.m., flight school, food and beverages, car rental, airplane maintenance, tie-downs, and hangars. In August 1979 Winter contracted with Ae-rowake to store his airplane at the airport.

He initially used a tie-down spot in an open grassy area, but he later took a space in a covered plane port. The space had three tie-down rings and Aerowake provided ropes for Winter to tie his plane down. The plane port had walls on both ends but was open to the front and rear of the airplanes. Winter testified that he was particularly glad to have this space because it was right next to the trailer in which Leroy Trulson (Trulson), Aerowake’s mechanic, lived with his family.

Aerowake provided the trailer for Trul-son to live in free of charge. Although Wakefield testified that living on the premises was not a condition of Trulson’s employment, he did admit that Trulson’s presence at the airport at night was a benefit to the airport and the owners of airplanes parked there.

On September 5, 1980, Ron Sunholm (Sunholm) drove his dune buggy into Winter’s airplane and caused substantial damage to it. Sunholm was related by marriage to Trulson’s son, and the two of them rode the dune buggy in the fields around the airport. Sunholm stuck his dune buggy in a pond several days before the accident. He borrowed a rope from Trulson in order to pull it out. Apparently after freeing the dune buggy, he cranked it up and ran into Winter’s airplane. Sunholm testified that the throttle stuck and the brakes would not work because they had mud in them.

Trulson had seen Sunholm driving his dune buggy on the airport premises numerous times prior to the day it got stuck in the mud. Sunholm asked Trulson for help in freeing the dune buggy, but he refused and only consented to let Sunholm borrow a rope; nor did he supervise Sunholm’s efforts, being busy with work on an airplane.

The dispute at trial and on appeal concerns the nature of the parties’ arrangements for storage of Winter’s airplane— whether it was a bailment or merely a lease or license. If it was a bailment, Aerowake owed a duty as bailee to exercise ordinary and reasonable care for the protection of the airplane. If it was a lease or license, there would be no such duty on Aerowake.

The Court of Civil Appeals recently adopted the definition of bailment found at 8 Am.Jur.2d Bailments § 2 (1980):

“ ‘[T]he delivery of personal property by one person to another in trust for a specific purpose, with a contract, express or implied, that the trust shall be faithfully executed, and the property returned or duly accounted for when the special purpose is accomplished, or kept until the bailor reclaims it. [Footnotes omitted.]’ ”

Farmer v. Machine Craft, Inc., 406 So.2d 981, 982 (Ala.Civ.App.1981).

The parties argue principally from the Alabama eases regarding automobile parking lots: Lewis v. Ebersole, 244 Ala. 200,12 So.2d 543 (1943); Ex parte Mobile Light & R. Co., 211 Ala. 525, 101 So. 177 (1924); Mobile Parking Stations, Inc. v. Lawson, 298 So.2d 266 (Ala.Civ.App.1974); Kravitz v. Parking Service Co., 29 Ala.App. 523,199 So. 727 (1940). Aerowake would have us hold that the facts here are more like those in Ex parte Mobile Light & R. Co., supra, and Mobile Parking Stations, supra, in that the alleged bailee did not have sufficient control over the property for the relationship to constitute a bailment.

We do not find this argument compelling. The circumstances of an airplane parking facility are not exactly analogous to those of an automobile parking lot. Some protection of the airplane from the weather is always provided — if not shelter, at least tie-down equipment to keep the airplane secure in the wind. Airplanes can usually be moved without the ignition keys. In fact, Winter’s airplane did not require keys to start, so the primary indication of possession in automobile cases is lacking.

Aerowake states that it did not have Winter’s permission to move or start his airplane. This is not determinative here for several reasons. Should an emergency arise such as a fire in the plane port, Aerowake would surely have a duty to extinguish the fire or move airplanes out of danger. Trul-son testified that when a storm approached he inspected the tie-downs and made sure no loose objects such as garbage cans were around to be blown into the planes. Thus, the requisite amounts of possession and control and assumption of a duty to use reasonable care to protect the property were present.

In most cases of this type the defendant fixed-base operator, such as Aerowake, admits the existence of a bailment and argues that it met its duty of ordinary care. Aircraft Sales & Service, Inc. v. Bramlett, 254 Ala. 588, 49 So.2d 144 (1950); Naxera v. Wathan, 159 N.W.2d 513 (Iowa 1968); Alamo Airways, Inc. v. Benum, 78 Nev. 384, 374 P.2d 684 (1962). Where a fixed-based operator or an airport has challenged the existence of a bailment, most courts have found a bailment to exist. City of Jackson v. Brummett, 224 Miss. 501, 80 So.2d 827 (1955); Hendren v. Ken-Mar Airpark, Inc., 191 Kan. 550, 382 P.2d 288 (1963); Meyer v. Moore, 329 P.2d 676 (Okla.1958); Clack-No-mah Flying Club v. Sterling Aircraft, Inc., 17 Utah 2d 245, 408 P.2d 904 (1965). In Meyer v. Moore, supra, the facts were held to establish “a bailment for hire under which it was the duty of the defendants to use ordinary care in safeguarding the plaintiffs’ airplane during the time it was stored at the airport,” even though “the owner or pilot of the plane was responsible for tying down his own airplane.” Id., 329 P.2d at 679.

In Central Aviation Company v. Perkin-son, 269 Ala. 197, 112 So.2d 326 (1959), the Court found an agreement on the part of the company to tie down the airplane, and that the company breached this agreement by not providing ropes of sufficient strength. The case was not tried on an issue of bailment, but does go to show that airplane parking facilities provide more than a mere parking space.

Aerowake does not raise on appeal the question of whether it breached any duty it might have had nor whether the damage caused by Sunholm was foreseeable. The general supervision of the premises by Trul-son, however, coupled with his admission that he had seen Sunholm driving his dune buggy on the property, indicate to this Court that the verdict and judgment are not manifestly unjust.

For the reasons stated above, the judgment of the trial court and its denial of Aerowake’s motion for new trial are affirmed.

AFFIRMED.

TORBERT, C.J., and FAULKNER, EM-BRY and ADAMS, JJ., concur.


author: FAULKNER, Justice.

text:
    COMMERCIAL STANDARD INSURANCE COMPANY v. GENERAL TRUCKING COMPANY, et al.
    81-208.
    Supreme Court of Alabama.
    Nov. 19, 1982.

      Larry W. Harper of Porterfield, Scholl, Bainbridge, Mims, Clark & Harper, Birmingham, for appellant.
    Thomas R. Elliott, Jr. of London, Yancey, Clark & Allen, Birmingham, for appellees.
   FAULKNER, Justice.

This is an appeal from a final decree rendered in a declaratory judgment action in the Circuit Court of Jefferson County. The cause was filed by Commercial Standard Insurance Company against General Trucking Company, Inc. Royal Globe Insurance Company, Loddie Williamson and Eugene Reese, as Administrator of the Estate of Gayla J. Reese. We affirm.

The issue is which insurance carrier is liable for coverage of Williamson, who was involved in a truck-pedestrian accident on July 14, 1978. As a result of that accident suit was filed by Eugene Reese against Royal’s named insured, General; Commercial’s named insured, Lane Trucking Co., Inc. (Lane); and Williamson. Subsequent to the claims made against General, Royal and General filed a declaratory action against Lane, its insurer Commercial, the truckdriver Williamson, and Reese. Judgment in the Reese action was rendered against the three defendants, General, Lane and Williamson.

On March 18, 1976, Williamson entered into a lease agreement with Lane which stated that Williamson was the owner-operator of his truck and that his relationship with Lane was that of an independent contractor and not that of an agent, servant, or employee of Lane. The lease agreement provided that Williamson would be responsible and liable to Lane. Williamson agreed to pay Lane for any damage to property or persons. Lane in turn would procure and pay for such public liability insurance as was required by the Interstate Commerce Commission (I.C.C.), but this fact would not modify the agreements between Lane and Williamson stated elsewhere in the lease.

In July, 1978, General needed additional trucks to haul silica from Elmore, Alabama, to Columbia, Tennessee. General entered into an agreement with Lane, whereby owners of trucks under long-term leases with Lane agreed to haul for General. General would receive the proceeds, subtract its cut and pay the owners of the trucks. Lane did not have the authority from I.C.C. to haul between Alabama and Tennessee and the hauling was done under General’s I.C.C. authority. One of these trucks, owned by Williamson, was involved in the accident. Prior to the accident, Royal had issued a comprehensive automobile liability insurance policy to General with the named insured General Trucking Company, Inc., while Commercial had issued a comprehensive automobile liability insurance policy to Lane Trucking, Inc. The language of the pertinent provisions of both policies is identical.

The Commercial policy reads in part:

“II. PERSONS INSURED
“(a) the named insured.
“(c) any other person while using an owned automobile or a hired automobile with the permission of the named insured, provided his actual operation or (if he is not operating) his other actual use thereof is within the scope of such permission, but with respect to bodily injury or property damage arising out of the loading or unloading thereof, such other person shall be an insured only if he is:
“(1) a lessee or borrower of the automobile, or
“(2) an employee of the named insured or of such lessee or borrower; “(d) any other person or organization but only with respect to his or its liability because of acts or omissions of an insured under (a), (b) or (c) above. “None of the following is an insured:
“(ii) the owner or lessee (of whom the named insured is a sub-lessee) of a hired automobile or the owner of a non-owned automobile, or any agent or employee of any such owner or lessee;

The policy further provides:

“V. ADDITIONAL DEFINITIONS.
When used in reference to this insurance (including endorsements forming a part of the policy):
‘hired automobile’ means an automobile not owned by the named insured which is used under contract in behalf of, or loaned to, the named insured. ...
‘non-owned automobile’ means an automobile which is neither an owned automobile nor a hired automobile;
‘owned automobile’ means an automobile owned by the named insured;”

If we disregard the Schedule of Automobiles attached to Commercial’s policy, the literal language under Part V indicates that Williamson’s vehicle is a “hired automobile” rather than an “owned automobile.” If Williamson were an agent, servant or employee of Lane, driving a hired automobile with Lane’s permission and within the scope of such permission, Williamson would fall within Part II (c) and would be a “person insured.” Williamson is the owner of the hired automobile and therefore falls within Part II(ii) and is not an insured.

The language of the first sentence under Part V states: “including endorsements forming a part of the policy.” Webster’s Third New International Dictionary (1971) defines “endorsement” as follows: “Insurance: a provision added to an insurance contract altering its scope or application that takes precedence over printed portions of the policy in conflict therewith.”

Williamson’s vehicle is listed on the Schedule of Automobiles, showing the premiums paid for both “Bodily Injury Liability” and “Property Damage Liability.” The language at the top of page 2 of the Schedule indicates that the Schedule is “attached to and forming part of policy number 430-15-02-53 issued by Commercial Standard Insurance Company.”

This Court finds the endorsement provision under Part V and the indication that the Schedule is part of Commercial’s policy to be clear evidence of the parties’ intent to include the Schedule in Commercial’s policy. The listing of the vehicle is a specific action that supersedes the literal definitions under Part V of the Commercial policy and makes Williamson’s vehicle an “owned automobile”; Williamson therefore becomes an “insured” pursuant to Part 11(c) because he is a person using an owned automobile with the permission of Lane and his operation of the vehicle was within the scope of such permission. Part II(ii) does not qualify (c) because (ii) applies to a “hired automobile” or “non-owned automobile” and not to “owned automobiles.”

Where there is added to a printed form a written or typewritten clause, that clause should be considered as superseding those clauses in conflict which are printed in the form. Pearl Assurance Company v. Hartford Fire Insurance Company, 239 Ala. 515, 195 So. 747 (1940). In the same decision, the Court stated specifically:

“It is also clear to us that to the extent that clause three as printed conflicts with clause six as amended, the latter should take precedence.”

It is a well-established principle that a court should avoid taking a single provision or sentence from an insurance policy and attaching to it greater significance than is intended by the whole terms of the policy. Southern Guaranty Insurance Company v. Wales, 283 Ala. 493, 218 So.2d 822 (1969); North River Insurance Company v. Jackson, 278 Ala. 604, 179 So.2d 731 (1965).

The listing of the Williamson vehicle as an “owned automobile” in the Schedule as part of the policy, creates an ambiguity in the Commercial policy which is to be resolved in favor of the insured. Safeco Insurance Company of America v. Banks, 275 Ala. 119, 152 So.2d 666 (1963); Burton v. State Farm Fire & Casualty Company, 533 F.2d 177 (5th Cir.1976). Furthermore, based on the interpretation given to the language in the Commercial policy, and the coverage of Williamson, we find that if General was found to have any liability as a result of Williamson’s accident, then General is an insured under Commercial’s policy under Part 11(d), which states:

“any other person or organization but only with respect to his or its liability because of acts or omissions of an insured under (a), (b) or (c) above.”

Commercial contends that the rule that an ambiguity in an insurance contract should be interpreted in favor of the insured and against the insurer should be ignored where the dispute is between two insurance carriers. We do not agree. Georgia Casualty & Surety Company v. Universal Underwriters Insurance Company, 534 F.2d 1108 (5th Cir.1976).

Under Royal’s policy, which carries identical language, Williamson’s vehicle is a “hired automobile.” Lane is excluded from coverage under Royal’s policy as a result of Part II (ii) as the owner or lessee (of whom the named insured is a sub-lessee) of a hired automobile. Williamson is also excluded under the same provision. Williamson’s lease remained in effect throughout the course of the General job; thus any indemnification of General would be an indemnification by Lane. This particular liability is excluded from the coverage of the Commercial policy by Part I, exclusion (a), which provides that the insurance does not apply to liability assumed by the insured under any contract or agreement. General may not rely on the July 11, 1978, lease as the basis for its coverage under the Commercial policy, but this does not prevent General from being covered under the other provisions of the policy. To the extent that General became liable due to the negligence of Williamson, General may recover from Williamson’s insurer, Commercial, limited by the extent of the coverage of Commercial’s policy. American Southern Insurance Company v. Dime Taxi Service, Inc., 275 Ala. 51, 151 So.2d 783 (1963).

A careful consideration of the record and the briefs submitted convinces us that the trial court reached a proper decision, and the judgment is therefore affirmed.

AFFIRMED.

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

ALMON, J., concurs in the result.

      . “I. COVERAGE C — BODILY INJURY LIABILITY
      COVERAGE D — PROPERTY DAMAGE LIABILITY
      The company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of
      C. bodily injury or
      D. property damage
      to which this insurance applies, caused by an occurrence and arising out of the ownership, maintenance or use, including loading and unloading, of any automobile, and the company shall have the right and duty to defend any suit against the insured seeking damages on account of such bodily injury or property damage, even if any of the allegations of the suit are groundless, false or fraudulent, and may make such investigation and settlement of any claim or suit as it deems expedient, but the company shall not be obligated to pay any claim or judgment or to defend any suit after the applicable limit of the company’s liability has been exhausted by payment of judgments or settlements.
      EXCLUSIONS
      This insurance does not apply:
      (a) to liability assumed by the insured under any contract or agreement.”


author: SHORES, Justice.

text:
    Teena Leigh Chaney WATTS and Harold Moss Ware, Jr. v. PREFERRED RISK MUTUAL INSURANCE COMPANY.
    81-362.
    Supreme Court of Alabama.
    Nov. 19, 1982.

      Clifford W. Hardy, Jr., Bessemer, for appellants.
    W. Michael Atchison and Randal H. Sellers of Starnes & Atchison, Birmingham, for appellee.
   SHORES, Justice.

This is an appeal by Harold Moss Ware, Jr., and Teena Leigh Chaney Watts from a summary judgment in favor of Preferred Risk Mutual Insurance Company in a declaratory judgment action. We affirm.

On November 5, 1975, Preferred Risk issued a policy of automobile liability insurance to Harold Ware, father of defendant Ware, which provided coverage for the family’s 1973 Ford automobile. On November 11, 1975, Ware, while driving the family car, was involved in an accident on 1-59 in Tuscaloosa County, Alabama. Teena Chaney Watts, a passenger in Ware’s car and also Ware’s stepsister, was injured in the accident. Preferred Risk investigated the accident and paid all medical bills incurred by Teena Watts.

Teena Watts filed suit against Ware on November 10, 1976, seeking damages for injuries she sustained in the accident. Ware did not answer, and a default judgment in favor of Watts and against Ware in the amount of $20,000 was entered on February 19, 1980.

Preferred Risk then filed this action for declaratory judgment against Ware and Watts, requesting the trial court to hold it free of any liability for the default judgment against Ware. Preferred Risk alleged that Ware, after having been served with the suit papers filed against him by Watts, failed to forward those papers to Preferred Risk, as required under the provisions of Ware’s policy. Preferred Risk further claimed that, as a result of Ware’s failure to notify his insurance carrier, coverage was no longer afforded, and that Preferred Risk was not liable for any judgments entered against Ware as a result of Watts’s suit.

Ware did not file a response to this action; Watts filed an answer and counterclaim, in which she asserted an uninsured motorist claim against Preferred Risk.

Additionally, Preferred Risk served Ware with its request for admission of certain facts, among them the facts that Ware never reported to Preferred Risk, until after February 19,1980, that Watts had filed suit against him, and that a default judgment had been entered against him. Ware again failed to respond; therefore, under Rule 36(a), Alabama Rules of Civil Procedure, all matters raised in the request for admission were admitted.

Preferred Risk filed motions for summary judgment on both the declaratory judgment claim and Watts’s counterclaim. The motions were supported by affidavits from two of Preferred Risk’s employees, Ware’s statement, and depositions of both Ware and Watts. A motion filed by Watts was the only response filed in opposition to the motions for summary judgment. The trial court granted summary judgment in favor of Preferred Risk. Ware and Watts appeal. We affirm.

Watts and Ware argue that the trial court erred in granting summary judgment in favor of Preferred Risk because there was a material issue of fact on the question of notice of the suit being furnished to Preferred Risk by Ware. No issue of fact exists on this question. The insurance policy contains a standard provision which requires as a condition precedent to any action on the policy that the suit papers in any action against the insured be forwarded immediately to the company. There is no factual dispute, and it is in fact admitted by both Ware and Watts, that neither defendant forwarded any suit papers at any time to Preferred Risk. Neither Ware nor Watts informed Preferred Risk or any of its representatives that suit had been filed against Ware until after damages had been proved and a default judgment entered— some thirty-nine months after suit was commenced. There is no dispute on this issue, and summary judgment was correctly entered in favor of Preferred Risk.

The failure of the insured to comply within a reasonable time with a provision in an automobile liability policy requiring the forwarding of suit papers “release[s] the insurer from the obligations imposed by the contract, although no prejudice may have resulted.” Standifer v. Aetna Casualty and Surety Co., 319 F.Supp. 1385 (N.D.Ala. 1970); American Fire and Casualty Co. v. Tankersley, 270 Ala. 126, 116 So.2d 579 (1959).

The purpose of the provision that the insured immediately forward legal process to the insurer is to afford the insurer an opportunity to control litigation. Brown v. State Farm Mut. Auto. Gas. Ins. Co., 506 F.2d 976 (5th Cir.1975). Preferred Risk never had that opportunity in this case. Ware violated that provision of the policy which required him to forward suit papers to the insurer within a reasonable time. He offered no excuse for his failure to do so. Therefore, the company had no obligation to defend the personal injury suit.

Ware and Watts next contend that a Preferred Risk agent waived the policy requirement of forwarding the suit papers, and that Preferred Risk should be estopped from asserting Ware’s failure as a defense. Whether this is true or not makes no difference in this case since Preferred Risk is relieved of liability by virtue of Watts’s failure to forward suit papers as required by another provision of the policy discussed above. The undisputed facts in this case, however, do not support this contention. Ware alleges that he informed James Vines, a sales agent of Preferred Risk in Bessemer, Alabama, of the lawsuit approximately two months after the accident in November, 1975, and that Vines assured him that the matter would be taken care of. But, the record shows that Watts did not file suit against Ware until November 10, 1976, twelve months after the accident. Therefore, Preferred Risk could not have waived the notice requirement a year in advance of the filing of the lawsuit.

Watts finally argues that, if Preferred Risk escapes liability on its liability coverage of Ware because he violated the notice provisions of the policy, then Ware becomes an uninsured motorist, and she then becomes entitled to coverage under the uninsured motorist provision of the policy. The argument is an interesting one, but not persuasive in this case.

Alabama’s uninsured motorist statute, Ala.Code 1975, § 32-7-23, authorizes “insurance for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles ” (emphasis added). The intent of the uninsured motorist coverage issued by Preferred Risk is stated in Ware’s policy in similar fashion:

“To pay all sums which the insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured motor vehicle because of bodily injury, sickness or disease, including death resulting therefrom, hereinafter called ‘bodily injury,’ sustained by the insured, caused by accident and arising out of the ownership, maintenance or use of such uninsured motor vehicle. ” (Emphasis added.)

We note that, although § 32-7-23 is entitled “Uninsured Motorist Coverage” and is frequently referred to in that manner, both the statute and insurance policies deal with the motor vehicle which is uninsured, not the motorist. Lefeve v. State Farm Mut. Auto. Ins. Co., 527 F.Supp. 492, 494 n. 4 (N.D.Ala.1981).

Section 32-7-23 itself does not define an uninsured motor vehicle, and prior Alabama cases which have done so did not involve a situation where liability coverage is initially present but coverage is later denied, thus raising the uninsured motorist question in the posture in which it is presented here. Wilbourn v. Allstate Ins. Co., 293 Ala. 466, 305 So.2d 372 (1974); Higgins v. Nationwide Mut. Ins. Co., 291 Ala. 462, 282 So.2d 301 (1973). Therefore, we must examine the language of pertinent provisions of the policy to determine whether, in fact, an “uninsured motor vehicle” is involved in the present case.

The following definitions are found within “Part IV, Protection Against Uninsured Motorists,” of Ware’s liability policy:

“ ‘[Ijnsured’ means: (a) the named insured and any relative; (b) any other person while occupying an insured automobile;
“ ‘[Ijnsured automobile’ means: (a) an automobile described in the policy for which a specific premium charge indicates that coverage is afforded.
“ ‘[Ujninsured motor vehicle’ includes ...: (a) an automobile or trailer with respect to the ownership, maintenance or use of which there is ... a bodily injury liability bond or insurance policy applicable at the time of the accident but the company writing the same denies coverage thereunder.... (Emphasis added.)
“[Bjut the term ‘uninsured motor vehicle’ shall not include: (1) an insured automobile or an automobile furnished for the regular use of the named insured or a relative.” (Emphasis added.)

The exclusion numbered (1) is applicable to this case.

One writer has collected the cases from other jurisdictions construing similar language and has said:

“When a passenger who is an occupant of an insured vehicle is precluded from recovering from the driver of that vehicle (as for example where the insurer denies coverage for lack of cooperation by the driver, or where a provision such as a household family member or fellow employee exclusion is invoked by the insurer), the issue is raised as to whether such a passenger may then seek indemnification under the uninsured motorist endorsement. ... In this type of case, claimants have typically argued that if the insurer is allowed to avoid providing coverage for a negligent driver under the liability insurance — then the driver should be considered an uninsured motorist, and the passenger should be allowed to recover under the uninsured motorist endorsement. In such cases courts have often rejected this argument on the theory that the endorsements provide that ‘the term uninsured motor vehicle shall not include ... a vehicle defined herein as an insured automobile,’ and that the parties have the right to contract for the type of insurance coverage they want (as long as the terms are not contrary to statutory requirements).”

A. Widiss, A Guide to Uninsured Motorist Coverage, Section 2.10 (Supp.1981).

The Supreme Court of Florida rejected the claimant’s argument in Reid v. State Farm Fire and Cas. Co., 352 So.2d 1172 (Fla.1977), where the household exclusion was invoked by the insurer to deny liability coverage. That Court said:

“Appellant contends that if she cannot recover upon the first appeal [wherein liability coverage was sought], she can recover under the uninsured motorist provision of the policy, which provides uninsured motorist coverage to her father and the members of his family residing in the same household. However, another exclusion provides that an ‘uninsured motor vehicle’ may not be the vehicle defined in the policy as the insured motor vehicle. In other words, her father’s car can not be an uninsured motor vehicle under the terms of the policy, even though, as we held in the first appeal, it is in fact uninsured as to her.
“We hold that the family car in this case is not an uninsured motor vehicle. It is insured and it does not become uninsured because liability coverage may not be available to a particular individual. Taylor v. Safeco Insurance Co., 298 So.2d 202 (Fla. 1st DCA 1974); Centennial Insurance Co. v. Wallace, 330 So.2d 815 (Fla. 3d DCA 1976).
“We recognize, as a general rule, that an insurer may not limit the applicability of uninsured motorist protection. Hodges v. National Union Indemnity Co., 249 So.2d 679 (Fla.1971); Mullís v. State Farm Mutual Automobile Insurance Co., 252 So.2d 229 (Fla.1971); Salas v. Liberty Mutual Fire Insurance Co., 272 So.2d 1 (Fla.1972). We believe, however, that the present case is factually distinguishable from previous cases and is an exception to the general rule. Here the family car, which is defined in the policy as the insured motor vehicle, is the same vehicle which appellant, under the uninsured motorist provision of the policy, claims to be an uninsured motor vehicle. We find no merit in appellant’s argument that this exclusion conflicts with Section 627.727, Florida Statutes (1975).”

352 So.2d at 1173-74.

This case is very similar on the facts, and we are persuaded that the Florida Court correctly construed the exclusion where the same vehicle is involved in the claim for liability coverage and the uninsured motorist coverage, as is the case here.

Appellants argue that the exclusion conflicts with § 32-7-23, and, thus, is void. It is true that where an exclusion in a policy is more restrictive than the uninsured motorist statute, it is void and unenforceable. Alabama Farm Bureau Mut. Cas. Ins. Co. v. Mitchell, 373 So.2d 1129 (Ala.Civ.App.1979). That rule is inapplicable here, where the claimant has no statutory right to uninsured motorist coverage.

This is not to say that Watts falls outside the statutorily mandated uninsured motorist coverage. Being an insured under the liability provisions of the policy, her right to uninsured motorist coverage cannot be more restrictive than the statute. But the statute necessarily contemplates that the motorist against whom liability is sought to be imposed is operating an uninsured vehicle. Within the context of the issue presented here, the policy provision excluding the automobile operated by Ware does not offend the statute.

The judgment of the trial court is affirmed.

AFFIRMED.

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


author: JONES, Justice.

text:
    Eara WASHINGTON and Robert Washington v. Dr. Johnnye Ruth WALTON, et al.
    81-465.
    Supreme Court of Alabama.
    Nov. 19, 1982.

      Robert H. Turner of Chestnut, Sanders, Sanders & Turner, Selma, for appellants.
    Nathan G. Watkins, Jr. of Pruitt, Pruitt, Watkins & Robinson, Livingston, for appel-lees.
   JONES, Justice.

This is an appeal from a final judgment in a nonjury case favorable to Defendants/Appellees Dr. Johnnye Ruth Walton and Dr. D.A. Marsh, arising out of a cause initiated by Plaintiff/Appellant Eara Washington, alleging medical malpractice and breach of contract.

We affirm.

PROCEDURAL BACKGROUND

Eara Washington commenced this action on April 30, 1981, by a three-count complaint, alleging negligence by Dr. Johnnye Ruth Walton and Dr. D.A. Marsh, in their diagnosis and treatment of her arm, which had been injured by broken glass. The original complaint failed to demand a trial by jury. On June 12, 1981, an amendment to the complaint added Ms. Washington’s husband, Robert, as a party plaintiff, and added two counts seeking compensatory, general, and special damages for medical expenses and alleged loss of consortium. On August 13, 1981, Plaintiffs amended their complaint for a second time, alleging (against Dr. Marsh only) breach of contract. Again, trial by jury was not demanded. On August 25, 1981, the complaint was amended a third time, the substance of that amendment seeking, for the first time, trial by struck jury as to all issues theretofore alleged. On August 27, 1981, Defendants filed a motion to strike Plaintiffs’ demand for trial by jury. The trial court, on September 23, 1981, granted this motion. On October 16,1981, the complaint was amended for the fifth time, demanding “a trial by struck jury as plaintiffs [have] amended their complaint to allege breach of contract.” Thereafter, the trial court denied Plaintiffs’ jury demand, stating:

“The Court having been presented with a motion for jury trial in this case filed by the Plaintiff, and the Plaintiff asserts that the amended complaint alleges breach of contract and, therefore, she is entitled to a trial by jury as to the issues contained in the amended complaint. The Court finds that the Plaintiff did not obtain leave of Court to amend the complaint after an answer had been filed, and the Court further finds that the Plaintiff has raised no new issues in the amended complaint. The amended complaint that alleges breach of contract is a mere statement of a malpractice claim that was previously filed in this case. No new issue has been raised in this amendment.
“It is, therefore, ORDERED by the Court that the Motion for Jury Trial is denied since the Plaintiffs waived the trial by jury by failing to demand a trial by jury within thirty (30) days after the defendants filed an answer to the complaint.”

The trial court granted Dr. Walton’s motion for partial summary judgment as to all allegations of malpractice relative to her treatment of Ms. Washington during 1964-65. From an adverse final judgment for the Defendants and the denial of a post-judgment motion for a new trial, the Wash-ingtons appeal.

FACTUAL SUMMARY

In 1964, Ms. Eara Washington was injured at her home in Livingston, Alabama, when broken particles of glass from a door slammed shut by the wind became embedded in her arm. Ms. Washington sought and received immediate medical attention from Dr. Johnnye Ruth Walton, a local physician. Dr. Walton cleansed the area, injected a local anesthetic, then probed and sutured the wound. Several days later, Dr. Walton removed the sutures. At this point, the wound evidenced no signs of infection.

According to Ms. Washington, she continued to experience pain in her arm until she visited Dr. D.A. Marsh in York, Alabama, in 1979. Dr. Marsh excised a keloid scar formation at the location of the previous injury, probed the area and removed a piece of glass situated beneath the skin. He next sutured the wound and instructed Ms. Washington to return in several days to have the stitching removed. When she returned, there was no sign that the area was infected.

In May of 1980, Ms. Washington returned to Dr. Walton for treatment of pains in her neck, shoulder, and arm, as well as hypertension. In January of 1981, Ms. Washington informed Dr. Walton of the glass initially present in her arm in 1964, part of which had been removed by Dr. Marsh in 1979. Thereafter, Dr. Walton referred her to Dr. J.C. Matthews in Mississippi. Dr. Matthews, through the use of high-powered X-ray techniques, discovered glass still present in her arm. He removed that glass through surgery.

DENIAL OF PLAINTIFFS’ JURY DEMAND

ARCP 38(b) provides in part:

“(b) Demand. Any party may demand a trial by jury of any issue triable of right by a jury by serving upon the other parties a demand therefor in writing at any time after the commencement of the action and not later than 30 days after the service of the last pleading directed to such issue. Such demand may be indorsed upon a pleading of the party, and such demand shall be deemed to be a demand for a struck jury.”

Plaintiffs’ contention that they were improperly denied right to trial by jury is premised upon the following chronology:

April 30, 1981 Original complaint filed without jury demand.
May 19, 1981 Defendants answer original complaint.
June 12, 1981 First amended complaint filed without jury demand.
August 5, 1981 Defendants answer first amended complaint.
August 13, 1981 Second amended complaint filed without jury demand.
August 25, 1981 Third amended complaint filed with demand for jury trial.
August 27, 1981 Defendants move to strike plaintiffs’ jury demand.
September 17, 1981 Defendant Marsh answers second amended complaint.
September 28, 1981 Defendants’ motion to strike jury demand granted.
October 16, 1981 Plaintiffs move for jury trial as to issues raised in second amended complaint, as well as pursuant to ARCP 39(b).
November 17, 1981 Trial court denies plaintiffs’ October 13 motion for jury trial.

Pursuant to ARCP 38(b), the Wash-ingtons submit:

“[Tjhat appellants first demand for a jury trial was made on August 25, 1981. This was twenty (20) days after appellees (defendants below) had answered the amended complaint, and thirteen (13) [12] days after appellants (plaintiffs below) had filed another amendment to their complaint. At the time the jury demand was made, the last pleading before the court was either the amended answer filed by appellees twenty (20) days before the demand, or the amended complaint alleging breach of contract filed thirteen (13) [12] days before the demand.”

Appellants cite Baggett v. Sims, 387 So.2d 792, 794 (Ala.1980), for the following proposition:

“[If] the demand for a jury trial has timely been made after the reply to a compulsory counterclaim, the demand is good as to all issues addressed in the original complaint and in the compulsory counterclaim, except for those issues expressly excepted in the demand. 5 Moore’s Federal Practice ¶ 38.-39[2], at 314-318; (2nd ed. 1948). Rule 38(c), ARCP.”

See, also, Dorcal, Inc. v. Xerox Corporation, 398 So.2d 665 (Ala.1981).

Defendants point out in response that Baggett deals with a situation where there has been a reply to a compulsory counterclaim. In the absence of a compulsory counterclaim, and a reply thereto, we agree that Baggett’s interpretation of Rule 38 has no application.

Between the time of the filing of the original complaint, and the date on which the first jury demand (third amended complaint) was made, the Washingtons filed two amended complaints, the first against Drs. Walton and Marsh and the second against Dr. Marsh only. The first amended complaint added count four against Dr. Walton and count five against Dr. Marsh. The two counts were essentially the same, alleging negligent exploration of Plaintiff’s arm for the presence of embedded glass and a failure to use antibiotics and a drain upon the completion of surgery. The original complaint had alleged that Drs. Walton and Marsh had failed to explore Plaintiff’s arm for the presence of glass, failed to X-ray or perform any diagnostic tests for glass, and had failed to make a timely referral of Ms. Washington to another physician or specialist equipped to diagnose her problem.

Both the original complaint and the first amended complaint alleged that Drs. Walton and Marsh failed to meet the required standard of care of a physician in their general neighborhood, and that they were negligent in their treatment of Ms. Washington. The answers of Drs. Walton and Marsh to the first amended complaint real-leged, affirmed, and adopted their answers to the original complaint.

In 2 C. Lyons, Alabama Practice — Buies of Civil Procedure Annotated, Author’s Comments § 38.5 (1973), it is said:

“An amended or supplemental pleading sets in motion the thirty-day time period for demanding a jury trial for new issues raised in that pleading. However, the service of an amendment does not breathe new life into a previously waived right to jury trial if the amendment deals with the same issues framed in the original pleadings as to which a waiver has occurred. See Western Geophysical Co. of America v. Bolt Associates, Inc., 440 F.2d 765 (2d Cir.1971) and 9 Wright & Miller, Federal Practice and Procedure, § 2320, p. 95, n. 38 (1971).” (Emphasis added.)

Simply stated, having once waived the right to trial by jury, one cannot, under the guise of amending a pleading, revive such a right by restating, albeit in different language, the same issues raised in the initial pleadings. Hamon Leasing, Inc. v. Continental Cars, Inc., 358 So.2d 442 (Ala.1978). Failing to raise “new issues” in their first amended complaint, the Washingtons did not breathe life into the previously waived right to trial by jury.

Ms. Washington’s second amended complaint sought to charge Dr. Marsh with breach of contract by “his failure to examine and treat Plaintiff in a reasonable and proper manner in that he failed to locate the glass in Plaintiff’s arm and remove the same, thereby causing Plaintiff injuries, expenses and damages.” In Paul v. Escambia County Hospital Board, 283 Ala. 488, at 492, 218 So.2d 817 (Ala.1969), quoting Tennessee Coal, Iron and Railroad Co. v. Sizemore, 258 Ala. 344, 62 So.2d 459 (1952), it is stated:

“ ‘ * * * the breach of a contract in not performing the obligation there expressed, or not doing it in the way specified, is not in tort. * * * If defendant omits to enter upon the duty to perform, however negligent that might be, that is not a negligent performance and not a tort. But if he does undertake to perform, his performance may be negligent, giving rise to a tort.’ ” (Emphasis added in Paul.)

This Court also stated:

“ ‘It will be observed that a negligent failure to perform a contract, express or implied * * * is but a breach of contract. But if in performing it, it is alleged that the defendant negligently caused personal injury or property damage to plaintiff, the remedy is in tort, for it is not the breach of a contract express or implied, but the breach of an implied duty to exercise due care not to injure plaintiff or her property which is the gravamen of the action.' ” Paul, supra, quoting Vines v. Crescent Transit Co., 264 Ala. 114, 85 So.2d 436 (1955).

In the second amended complaint, Plaintiffs essentially reallege that Dr. Marsh had failed to meet the required standard of care in his care and treatment of Ms. Washington, and was, therefore, negligent, thus breaching a duty owed her as a result of the parties’ “contractual” relationship. Appellees submit, and we agree, that despite its “contractual” characterization, Plaintiffs' second amended complaint, in effect, simply restated in contract terms a breach of duty imposed by law, i.e., it simply restated the negligence claim. See Bonds v. Brown, 368 So.2d 536 (Ala.1979). As such, it did not raise new issues to which a proper demand for jury trial could be directed.

STATUTE OP LIMITATIONS

On September 22,1981, Dr. Johnnye Ruth Walton filed a motion for partial summary judgment as to all allegations of malpractice relative to her treatment of Ms. Washington in 1964-65. The motion was founded, among other things, upon the statute of limitations for medical malpractice actions, Ala.Code § 6-5-482 (1975), which reads as follows:

“§ 6-5-482. Limitation on time for commencement of action.
“(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.)”

On November 12, 1981, the trial judge granted the motion for partial summary judgment on the basis that “there is no dispute as to any question of fact concerning the treatment of the Plaintiff by Dr. Johnnye Ruth Walton and that all of such treatment was performed more than four years before the filing of the complaint and more than six months after the discovery of the alleged injury. The Court finds this action is barred by the Statute of Limitations.”

Plaintiff’s original complaint, a portion of which was directed against Dr. Walton, was filed on April 30, 1981. Therein, Plaintiff alleged, inter alia, 1) that she visited Dr. Johnnye Ruth Walton in 1965 for a puncture wound which Dr. Walton treated; 2) that glass was discovered in her arm by another physician in November of 1979; 3) that Dr. Walton failed to explore her arm for the presence of embedded glass prior to closing the wound in 1965; 4) that even though she was first treated by Dr. Walton in 1965, she was unaware and could not have known of facts giving rise to Dr. Walton’s alleged negligence until the injury became apparent in the form of a nodule on her arm in November of 1979. Stated another way, Plaintiff contends that the injury, which occasioned her claim for malpractice against Dr. Walton, first occurred in November of 1979 with the appearance of the nodule at the site of her original wound. Consequently, according to Plaintiff, by filing her complaint against Dr. Walton in April of 1981, she fell within the allowable two-year period prescribed by Code 1975, § 6-5-482. We disagree.

Assuming, arguendo, the existence of an injury from which malpractice here might be inferred against Dr. Walton, it occurred in 1965 when Ms. Washington was initially injured and first visited Dr. Walton. From this point on, according to her own testimony, Ms. Washington continued to experience pain in her arm until November of 1979, when she visited Dr. Marsh and had some of the glass removed. Plaintiff first initiated a complaint against Dr. Walton in April of 1981. Assuming, once again, that Plaintiff first discovered her injury, or facts that would lead to its discovery, in November of 1979 when she visited Dr. Marsh, she does not come within the time limitations prescribed by § 6-5-482: 1) two years from the date of injury; 2) six months from the date of discovery of the injuries or of facts leading to such discovery; or 3) in no event more than four years from the date of injury. Thus, the trial judge did not err in granting Dr. Walton’s motion for partial summary judgment.

The final issue raised on appeal is whether the trial court erred in denying Appellant’s motion for a continuance. In these matters, the trial court will be reversed only for palpable and gross abuse of discretion. Mitchell v. Moore, 406 So.2d 347 (Ala. 1981). No such abuse is demonstrated here.

AFFIRMED.

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

      . The fourth amendment sought to substitute June 1964 as the date of Plaintiffs initial treatment by Dr. Walton.