text:
    Albert MITCHELL v. LOUISIANA POWER AND LIGHT CO., P & M Roofing Corporation, Fred W. Walton, R. L. Martin & Ass., et al.
    No. 10665.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 7, 1980.
    Rehearing Denied March 17, 1980.

      ■Bruno, Bruno & Blouin, New Orleans, Frank S. Bruno, New Orleans, for plaintiff-appellant.
    Lemle, Kelleher, Kohlmeyer & Matthews, New Orleans, Paul B. Deal, and Darryl J. Foster, New Orleans, for defendant-appel-lee-appellant.
    Before BOUTALL, SCHOTT and HOOD, JJ.
   HOOD, Judge.

Plaintiff, Albert Mitchell, sues to recover damages for personal injuries sustained by him when a crane which he was helping to move came in contact with a high voltage electric line. Several defendants were named, but the suit was dismissed as to all of them except P & M Roofing Corporation. After a trial on the merits, judgment was rendered by the trial court on October 16, 1978, in favor of the remaining defendant, dismissing plaintiff’s suit. Both parties, plaintiff and defendant, appealed. Defendant also answered the appeal taken by plaintiff.

The record shows that on November 8, 1973, long before the judgment which is now before us on appeal was handed down, a judgment was rendered by the trial court maintaining an exception of prescription and dismissing plaintiff’s suit as to the present defendant, P & M Roofing Corporation, at plaintiff’s costs. A few weeks after that judgment was rendered plaintiff filed a motion for a new trial and in response to that motion a new trial was granted by the trial court. The case was then tried, and judgment on the merits was rendered by the trial court on October 16, 1978, in favor of defendant, dismissing plaintiff’s suit. Appeals were taken by both parties from the last mentioned judgment, and those appeals are before us now. Two separate judgments thus have been rendered in favor of defendant and against plaintiff, dismissing this suit, one of which was rendered on November 8, .1973, and the other was rendered on October 16, 1978. Appeals were taken from the later judgment, but no appeal has ever been taken from the judgment which was rendered on November 8, 1973.

Several issues are presented. Those which we consider to be the determining ones are: (1) Was plaintiff’s motion for a new trial, which he submitted after the rendering of the judgment of November 8, 1973, filed timely? (2) If plaintiff’s application for a new trial was not timely filed on that occasion, could the trial court legally grant and hold a new trial and thereafter render a valid judgment on the merits modifying or changing the original judgment of dismissal? (3) Has the judgment rendered on November 8, 1973, become final?

The accident which resulted in injuries to plaintiff occurred on October 10,1968. This suit was filed more than one year later, on January 20, 1970. Defendant, P & M Roofing Corporation, filed an exception of prescription alleging that plaintiff’s suit is barred by prescription of one year. After a hearing, judgment was rendered by the trial court on November 8, 1973, maintaining the exception of prescription filed by defendant P & M, and dismissing this suit as to that defendant at plaintiff’s costs.

On December 7, 1973, that being 29 days after the above judgment of dismissal was rendered, plaintiff filed a “Motion for a New Trial,” alleging in substance that within a year after the accident occurred he filed a suit based on the same cause of action in the United States District Court, for the Eastern District of Louisiana, and that P & M Roofing Corporation was one of the defendants named in that suit. He contended that the filing of that action in the Federal Court interrupted the running of the prescription pleaded by defendant. After a hearing, judgment was rendered by the trial court on January 18, 1974, granting plaintiff a new trial, recalling and setting aside the judgment of November 8, 1973, and ordering that plaintiff’s petition be reinstated.

The case was tried on its merits on October 12,1978, and judgment was rendered on that date in favor of defendant, dismissing plaintiff’s suit with prejudice, and ordering each party to bear its own costs. A formal decree to that effect was signed on October 16,1978. Plaintiff filed a motion for a new trial, which ultimately was denied by the trial court, and he thereupon appealed from the judgment of dismissal rendered on October 16, 1978.

Defendant, P & M, also appealed from the judgment of October 16, 1978, alleging that it is aggrieved by the above judgment “insofar as it failed to maintain the exception of prescription filed by defendant and failed to maintain defendant’s contention that plaintiff’s application for a new trial in connection with the plea of prescription was not timely.” The defendant also answered the appeal taken by plaintiff, praying that the judgment of the trial court be reversed or modified so as to maintain its exception of prescription, and alternatively “to maintain its contention that plaintiff’s application for a new trial in connection with the plea of prescription was not timely.” The issues presented by those appeals and pleadings are before us now.

As already noted, an important question presented is whether plaintiff’s application for a new trial, following the rendition of the judgment of November 8, 1973, was timely filed. At the time that judgment was rendered, LSA-C.C.P. art. 1974 provided:

Article 1974: “The delay for applying for a new trial shall be three days, exclusive of holidays. This delay commences to run on the day after the clerk has mailed, or the sheriff has served, the notice of judgment as required by Article 1913.” (Emphasis added).

Article 1913 of the Code of Civil Procedure sets out the circumstances under which it is necessary for notices of the signing of a judgment to be mailed or served. We find that under the provisions of that article it was not necessary for a notice of the signing of the judgment rendered on November 8, 1973, to be mailed to or served on anyone. The decree rendered on that date was not a default judgment, the case was not taken under advisement by the court, the judgment was read and signed on the day of the trial, and no request was made for notice of the date when the judgment was signed.

Under LSA-C.C.P. art. 1974, plaintiff, was allowed three days, exclusive of holidays, within which to apply for a new trial. Since November 8, 1973, fell on a Thursday, plaintiff had until the end of the day on November 13 within which to apply for that relief. He did not apply for a new trial within that time. The delay for taking an appeal from the judgment of November 8, 1973, began to run on November 14, of that year. LSA-C.C.P. arts. 2087 and 2123. No appeal, however, has ever been taken from that judgment of dismissal. Under the above authorities it appears that the trial court had no authority to grant a new trial or to recall, set aside or modify the judgment rendered on November 8, 1973, since the application for a new trial was not timely filed. No appeal was taken, and that judgment apparently became definitive after the delays for taking appeals elapsed.

Plaintiff contends in the brief filed in this court, however, that “the delay for applying for a new trial is not at issue, there being no appellate jurisdiction over the matter,” and that defendant’s argument is “moot and irrelevant at this stage and posture of the proceedings.” Plaintiff apparently concedes that he, or his counsel, knew that the exception of prescription was scheduled for hearing on November 8,1973, because counsel commented in his brief that “When appellant’s attorney received notice of appel-lee’s exception of prescription set for November 8, 1973, he filed with the court a motion for a continuance. The basis for that motion was that appellant’s attorney was committed to appear at the trial of a matter in a different forum on that date.” He then stated that “through inadvertence or misunderstanding,” he had “no notice of the fact that the hearing had taken place or that the exception had been maintained,” and that it was after the clerk sent notice of the judgment to him on December 5, 1973, that he moved for a new trial. The thrust of plaintiff’s argument, as we understand it, is that under the above circumstances he, or his attorney, was entitled to notice of the signing of the judgment of November 8, 1973, and that the delay allowed to him for applying for a new trial did not begin to run until after that notice was mailed.

The record contains a copy of a formal notice signed by a Deputy Clerk of the trial court, dated October 29, 1973, and addressed to counsel for plaintiff, notifying the addressee that the exception of prescription filed by defendant was fixed for trial at 10:00 a. m. on Thursday, November 8, 1973. In the record, also, is a copy of a minute entry signed by a Deputy Clerk, dated November 8, 1973, reciting that in this case “Exceptions Maintain.” The judgment which was rendered, read and signed on November 8, recites that “This cause came on for hearing this date on exceptions filed by defendant, P & M Roofing Corporation. . . .”

Counsel for plaintiff filed a “Motion to Continue Exceptions” on November 2, 1973, which contains a notation at the bottom of it, dated November 5, 1973, stating “Hold and present on November 8, 1973.” That motion apparently was denied on the last mentioned date.

In the record, also, is a copy of a “Certificate of Mailing Judgment,” dated December 5, 1973, and signed by a Deputy Clerk, certifying that on that date a copy of the judgment of November 8, 1973, was mailed to each counsel of record. We find nothing in the record, or in any pleadings filed by plaintiff other than the above quoted remark in the brief filed in this court, which tends to show that plaintiff’s counsel was unaware of the fact that a hearing on the exception of prescription took place on November 8, 1973, or that the exception was maintained on that date.

Article 1913 of the Code of Civil Procedure does not require that notice of the signing of the judgment of November 8, 1973, be mailed to or served on plaintiff under the circumstances presented here. We have concluded that the facts pointed out and argued in behalf of plaintiff are not sufficient to justify a holding that a notice of the signing of the above judgment was required or that the delay allowed for applying for a new trial from that judgment did not begin to run until after such á notice was given. The mere mailing of a notice of judgment by the clerk, when such a notice is not required, does not have the effect of extending the time within which an application for a new trial may be filed, or the time within which an appeal may be taken.

In the absence of a timely application for a new trial, a trial court cannot alter the substance of its judgment after the time allowed for applying for a new trial, and no court can alter the substance of the judgment after the time for appeal has elapsed without an appeal having been taken. Houston Oil Field Material Co. v. Pioneer Oil & Gas Co., 236 So.2d 536 (La.App. 4th Cir., 1970); Gottsabend v. Aetna Casualty and Surety Company, 273 So.2d 637 (La.App. 4th Cir., 1973).

In Houston Oil Field Material Co., supra, for instance, we said:

“The jurisprudence appears uniform that in the absence of an earlier request, a trial court cannot alter the substance of its judgment after the time for application for a new trial, and no court can alter the substance after the time for appeal.”

The case of Rawls v. Domeray, 353 So.2d 414 (La.App. 4th Cir., 1977), cited by plaintiff, is not applicable because plaintiff in the instant suit was duly and formally notified of the hearing being held on November 8, 1973.

Our conclusion is that the judgment rendered by the trial court on November 8, 1973, maintaining defendant’s exception of prescription and dismissing plaintiff’s suit as to that defendant, became a definitive judgment when the delays for taking an appeal elapsed, that the trial court had no authority to recall or set aside that judgment in response to an untimely motion for a new trial, and that we have no authority to reverse or to modify that decree on this appeal.

Having concluded that the 1973 decree cannot be reversed or modified on this appeal, it is unnecessary for us to consider the merits of plaintiff’s claim or the other arguments presented in behalf of defendant.

The judgment appealed from, which decrees that plaintiff’s suit be dismissed as to defendant P & M Roofing Corporation, is affirmed. The costs of this appeal are assessed to plaintiff-appellant.

AFFIRMED.


source: Caselaw Access Project

author: HOOD, Judge.

license: Public Domain

text:
    Johnnie Lee TWILLIE v. H. B. ZACHRY COMPANY and Employers National Insurance Company.
    No. 10913.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 7, 1980.

      Marilyn A. Boothe, New Orleans, for plaintiff-appellant.
    Lemle, Kelleher, Kohlmeyer & Matthews, New Orleans, Paul B. Deal, and Darryl J. Foster, New Orleans, for defendants-appel-lees.
    Before GULOTTA, CHEHARDY and HOOD, JJ.
   HOOD, Judge.

This is a workmen’s compensation suit instituted by Johnnie Lee Twillie against H. B. Zachry Company and its insurer, Employers National Insurance Company. This suit was instituted in the Civil District Court for the Parish of Orleans. Defendants filed an Exception of Venue. Judgment was rendered by the trial court maintaining that exception, but allowing plaintiff thirty days thereafter within which to transfer the case to the Twenty-Ninth Judicial District Court for the Parish of St. Charles. Plaintiff appealed. We affirm.

The overall issue presented is whether the Civil District Court for the Parish of Orleans is a court of proper venue for this workmen’s compensation suit. To resolve that issue, it is necessary for us to determine whether defendant, H. B. Zachry Company, is estopped from denying that its principal place of business is in Orleans Parish.

Defendants allege that the trial court, the Civil District Court for the Parish of Orleans, is a court of improper venue because: (a) Plaintiff is and has been domiciled in the State of Mississippi; (b) defendant H. B. Zachry Company is domiciled in the Parish of St. Charles, Louisiana; and (c) the accident complained of occurred in St. Charles Parish.

The evidence presented at a hearing on the exception of venue establishes that plaintiff is a resident of and is domiciled in the State of Mississippi. H. B. Zachry Company is a Delaware corporation, domiciled at Wilmington, and it is qualified to do business in Louisiana. According to the records of the Secretary of State, in Louisiana, the principal business establishment of that company in this state is “Highway 18, River Road, Taft, Louisiana.” Plaintiff apparently does not question the fact that Taft is in St. Charles Parish. The accident which resulted in plaintiff’s alleged injury and disability occurred in St. Charles Parish, while plaintiff was working as a laborer for defendant Zachry. The instant suit was filed in Orleans Parish.

Under our law, an action to recover workmen’s compensation benefits may be instituted only in the district court which would have jurisdiction in a civil case, or in the district court of the parish in which the injury was done or the accident occurred, or in any court at the domicile, or at the principal place of business of the defendant, having jurisdiction of the amount of the dispute. LSA-R.S. 23:1311.

We find that defendant Zachry is a foreign corporation which is licensed to do business in Louisiana, and that its principal business establishment in this state is in St. Charles Parish. Under those circumstances, the Civil District Court for the Parish of Orleans is not a district court which would have jurisdiction over that defendant in a civil case. The Orleans Parish court also is not a court “at the domicile, or at the principal place of business of the defendant, having jurisdiction of the amount of the dispute.” The accident which resulted in injury to plaintiff occurred in St. Charles Parish. It did not occur in Orleans Parish. It is apparent, therefore, that under our law this suit was instituted in a court of improper venue. See LSA-C.C.P. art.' 42(4), and LSA-R.S. 23:1311.

Plaintiff contends, however, that defendants should be estopped from denying that Zaehry’s principal place of business is in Orleans Parish, for three reasons. One is that defendants admitted in pleadings filed in another suit that Zachry’s principal place of business in Louisiana is in Orleans Parish, and that that admission constitutes a judicial confession which cannot be revoked. The second reason is that plaintiff relied and acted upon the above judicial confession to his prejudice. And, the third reason is that the “interest of justice,” contemplated by LSA-C.C.P. arts. 121 and 932, could best be served by overruling the exception of venue.

The defendants in this suit were named as defendants in an earlier (and a different) suit, entitled “Louis Youngblood v. H. B. Zachry Company and Employers National Insurance Company," bearing No. 76-11151 on the docket of the Civil District Court for the Parish of Orleans. In that suit the defendants filed an answer alleging that they “admit that H. B. Zachry Company is a foreign corporation with its principal place of business in Louisiana in Orleans Parish.” That answer was filed on August 3, 1976. The Youngblood suit is not connected in any way with this action, and plaintiff Twillie was not a party to that suit. The attorneys who represented the plaintiff in that case, however, are the same attorneys who represent Twillie in the instant suit, and the firm which represented Zachry and Employers National in the Youngblood case is the same firm of attorneys which represents those defendants in the suit which is before us now.

Plaintiff argues that the above quoted allegation in the answer filed by defendants in the Youngblood suit constitutes a judicial confession which amounts to full proof against the defendants and cannot be revoked by them, unless proved to have been made through an error in fact.

Article 2291 of the Louisiana Civil Code provides:

Article 2291: “The judicial confession is the declaration which the party, or his special attorney in fact, makes in a judicial proceeding.
It amounts to full proof against him who has made it.
It can not be divided against him.
It can not be revoked, unless it be proved to have been made through an error in fact.
It can not be revoked on a pretense of an error in law.”

Our courts have held consistently that the judicial confession referred to in LSA-C.C. art. 2291 relates only to a judicial confession made in the suit itself, either in the pleadings or the evidence, for the purpose of dispensing with the taking of evidence on the fact admitted, and that it has no reference to admissions or confessions made in other suits. Admissions or confessions made in other suits are classified only as extrajudicial confessions which are admissible in evidence, but they are not conclusive presumptions and they do not operate an estoppel against the party making them, unless the other party claiming the benefit of the judicial estoppel resulting therefrom has been deceived by those confessions and has relied or acted on them to his prejudice. Farley v. Frost-Johnson Lumber Co., 133 La. 497, 63 So. 122 (1913); Sun Oil Co. v. Smith, 216 La. 27, 43 So.2d 148 (1949); Prieto Lumber Co. v. Shoultz, 111 So.2d 867 (La.App. 1st Cir., 1959); Succession of Turner, 235 La. 206, 103 So.2d 91 (1958); Barnes Furniture Store v. Young, 111 So.2d 549 (La.App. 1st Cir., 1959); D’Amico v. Canizaro, 226 So.2d 547 (La.App. 4th Cir., 1969).

We conclude that the quoted allegation in the answer filed by defendants in Youngblood, supra, cannot be regarded as a judicial confession in the instant suit, and that the provisions of Article 2291 of the Civil Code thus are not applicable here. The allegation made by defendants in the above pleading is admissible in evidence in this suit, but it will not operate as an estop-pel against defendants, unless the evidence establishes that plaintiff was deceived by the admission or confession and acted on it, to his prejudice.

Plaintiff takes the position that he relied on the above allegation to his great prejudice. He points out that the pleading which contained the admission or confession was filed by defendants on August 3, 1976, which was less than a year before the accident involved here occurred. This accident occurred on July 11, 1977. We note that the instant suit was filed on July 7, 1978, almost two years after the admission was made. Plaintiff’s argument, we assume, is that it was reasonable for him to conclude that Zachry’s principal business establishment was still in Orleans Parish, since the admission was made only a short time before his injury was sustained.

In Wilkinson v. Wilkinson, 323 So.2d 120 (La.1975), the Louisiana Supreme Court defined “estoppel” or “estoppel in pais” as follows:

“Equitable estoppel, or ‘estoppel in pais,’ can be defined as the effect of the voluntary conduct of a party whereby he is barred from asserting rights against another party justifiably relying on such conduct and who has changed his position to his detriment as a result of such reliance. Thus, there are three elements of estoppel: (1) a representation by conduct or word; (2) justifiable reliance; and (3) a change in position to one’s detriment because of the reliance . . . ”

Estoppels, however, are not favored by our courts. The burden of proving the facts upon which the estoppel is founded, as well as the affirmative showing that the party pleading it was misled by the acts of the other party and forced to act to his prejudice, rests on the party invoking the doctrine. Harvey v. Richard, 200 La. 97, 7 So.2d 674 (1942); Shirey v. Campbell, 151 So.2d 557 (La.App. 2nd Cir., 1963); Henderson v. Rossi, 185 So.2d 92 (La.App. 4th Cir., 1966); Muhleisen v. Allstate Insurance Company, 203 So.2d 847 (La.App. 4th Cir., 1967); American Bank and Trust Company v. Trinity Universal Insurance Company, 251 La. 445, 205 So.2d 35 (1967).

A party may not invoke the doctrine of equitable estoppel except in good faith and after having exercised such diligence as would reasonably be expected under the prevailing circumstances to avoid mistake or misunderstanding. Being an equitable remedy, it must be applied with equity. A party cannot successfully invoke estoppel, by claiming that he relied on representations made by another to his prejudice, if the evidence shows that the party pleading the estoppel had actual knowledge or had ready or convenient means of acquiring knowledge of facts concerning which the representations were made.

In Shirey, supra, the Second Circuit Court of Appeal said:

“The doctrine, however, should not be accorded inequitable application. Intent is an essential element of equitable estop-pel. Thus, it is essential to equitable estoppel that the matters claimed to create it were intended to lead the other party to act thereon or that there were reasonable grounds to anticipate that he would so act. The doctrine, however, has no application unless the person invoking it relied, and had a right to rely, upon the representation or conduct of the person, or persons, sought to be estopped. Hence, there is no compliance with this rule requiring reliance upon representations, express or implied, as an element of estoppel where the person pleading the estoppel had actual knowledge or ready or convenient means of acquiring knowledge of the facts concerning which the representations were made." (Emphasis added).

Our Supreme Court, in Harvey v. Richard, supra, held:

“The cases holding that estoppels are not favored by our courts are legion in our jurisprudence. Whenever estoppel is pleaded as an element of a cause of action, it must be pleaded specifically, the burden of proving the facts upon which the estoppel is founded, as well as the affirmative showing that he was misled by the acts and forced to act to his prejudice, resting upon the party invoking the doctrine.” (Emphasis added).

In Muhleisen, supra, we quoted from Shirey and Harvey, both supra, and in rejecting the plea of estoppel made there, we said:

“. . .A party may not invoke the doctrine of equitable estoppel except in good faith and after having exercised such diligence as would reasonably be expected under the prevailing circumstances to avoid mistake or misunderstanding. Being an equitable remedy, it must be applied with equity.”
******
“. . . The foregoing phrase “forced to act to his prejudice” certainly was not intended to imply a coercion, but rather that reliance upqn the representation was made necessary because of the want of ready and convenient means of acquiring knowledge of the facts concerning which the representation was made. Here the plaintiffs had such ready and convenient means and were not forced of necessity to rely upon the alleged representation. “Good faith is generally regarded as a necessary element in the application of the principle of equitable estoppel. A party having means readily and conveniently available to determine the true facts, but who fails to do so, cannot claim to have acted in complete good faith.”

In the instant suit the information that defendant Zachry’s principal place of business was in St. Charles Parish, instead of Orleans, was readily available to plaintiff. That determination could have been made by a letter or a telephone call to the office of the Secretary of State. We do not feel that the allegation made by defendants in the Youngblood case relating to Zachry’s principal place of business was of such a misleading or deceptive character that plaintiff was “forced to act” to his prejudice. We thus find no merit to plaintiff’s plea of estoppel.

Finally, plaintiff argues that the “interest of justice” compels us to reverse the trial court and to overrule defendants’ exception of venue. He bases that claim largely on LSA-C.C.P. arts. 121 and 932, which provide in effect that when an action has been brought in a court of improper jurisdiction or venue, the court may transfer it to a proper court “in the interest of justice.” The trial judge, of course, did transfer the case to a district court in St. Charles Parish, which is a court of proper venue, pursuant to the provisions of the cited articles. Plaintiff contends, however, that those articles show an obvious intent on the part of the legislators to favor the continuation of actions, rather than the dismissal of them due to want of technicalities, and accordingly that in the interest of justice the judgment of the trial court should be reversed so that he will have his day in court.

That argument is persuasive. We feel, however, that the legislators did not intend for courts to ignore or brush aside our laws relating to venue and prescription in order to allow the continuation of a suit under the circumstances which are presented here.

The judgment appealed from is affirmed. The costs of this appeal are assessed to plaintiff-appellant.

AFFIRMED.


author: HOOD, Judge. GARRISON, Judge, SCHOTT, Judge,

text:
    Ruby B. SMITH v. WILLIS-GERTRUDE-GEDDES FUNERAL HOMES, INC., Robert King, Continental Insurance Company, and Fire-mans Fund Insurance Company.
    No. 10544.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 7, 1980.
    Dissenting Opinion Feb. 21, 1980.
    Rehearing Denied March 17, 1980.

      Singerman, Cosentino, Broussard, Toups & Troyer, New Orleans, Olden C. Toups, Jr., New Orleans, for plaintiff-appellee.
    William H. Voigt, Metairie, for defendants-appellants.
    Before REDMANN, GULOTTA, SCHOTT, GARRISON and HOOD, JJ.
   HOOD, Judge.

Ruby B. Smith sues to recover damages for personal injuries sustained by her when she attempted to alight from a. funeral limousine. The defendants are Robert King, the Willis-Gertrude-Geddes Funeral Homes, Inc., and the latter’s insurer, Continental Insurance Company. The trial court rendered judgment in favor of plaintiff, and defendants have appealed. We reverse.

The principal issue presented, and we think the determining one, is whether the driver of the limousine was negligent.

The accident occurred on August 29,1977, shortly after plaintiff attended a funeral. Pursuant to arrangements made by relatives or friends of the decedent, a limousine owned by the defendant funeral home and being driven by its employee, Robert King, picked up plaintiff and three other women at plaintiff’s home in New Orleans, and transported them first to the funeral home, and then to the church where the services were held. When the above four passengers boarded that vehicle, three of them sat on the rear seat, and one sat on the front seat by the driver. Plaintiff sat on the left side of the rear seat.

After the services at the church were completed, the same four passengers re-boarded the limousine for the purpose of being transported from the church to the cemetery, and after they had seated themselves in it, two other persons, a Mrs. Jackson and a Mrs. Hensley, also were taken on as additional passengers. These two extra passengers sat on folding “jump seats,” located between the front seat and the rear seat of the vehicle. When the limousine left the church, Mrs. Jackson was seated on the left “jump seat” directly behind the driver, and plaintiff was seated on the left side of the rear seat, behind Mrs. Jackson. The latter was an elderly, heavy woman, who plaintiff did not know before she got into the limousine at the church.

When the driver and his six passengers arrived at the cemetery, Mrs. Jackson decided that she would not go to the grave site because it was raining, but that instead she would remain seated in the limousine. She continued to occupy the left jump seat as the other parties got out of the vehicle, but she leaned forward in it to give them more room to move around her. Plaintiff got out of the vehicle by squeezing by the left side of Mrs. Jackson, and she exited through the left rear door of the vehicle. All of the other passengers also got out of the limousine at the cemetery, leaving Mrs. Jackson as the only remaining occupant.

After attending services at the cemetery, plaintiff and the other passengers returned to the limousine, and the driver opened the left rear door for plaintiff to reenter it. At that time, and in response to plaintiff’s request, defendant King asked Mrs. Jackson to move so that plaintiff could get into the rear seat of the vehicle. Mrs. Jackson refused to move, however, explaining that she didn’t move when plaintiff got out of the car when they reached the cemetery, and she felt that she didn’t have to move to let her get back in it. Plaintiff then entered the left door of the vehicle, “eased by” the left side of Mrs. Jackson and sat in the same seat she previously had occupied in the limousine.

The six passengers then were transported by the limousine from the cemetery to plaintiff’s home, where the original four passengers, including plaintiff, were to disembark. Mrs. Jackson and Mrs. Hensley did not plan to get out of the car there, but they were to be taken on to other places. The driver parked the limousine on the left side of the street, against the curb in front of plaintiff’s home, and he then opened the left rear door for those on the back seat to use in alighting from the vehicle. At about that time, the passenger who had been sitting on the front seat with the driver (Mrs. Berry) got out of the vehicle and suggested to all of the other occupants that Mrs. Hensley move from the right jump seat up to the front seat of the limousine, and that Mrs. Jackson move over into the right jump seat, so that it would be easier for plaintiff and the other passengers in the rear seat to get out of the vehicle. In response to that suggestion, Mrs. Hensley moved from the right jump seat to the front seat of the limousine, leaving the right jump seat vacant. Mrs. Jackson, however, refused to move from the left jump seat, as had been suggested by Mrs. Berry, but she did lean forward again to make more room for plaintiff and the other passengers on the back seat to get out. Plaintiff stated that Mrs. Jackson “just tilted over forward,” and we gather from the evidence that the latter not only leaned forward, but that she caused the jump seat itself to tilt forward slightly. Plaintiff Smith then attempted to squeeze by the left side of Mrs. Jackson in order to exit through the left rear door of the vehicle. While she was doing so, Mrs. Jackson either leaned back in her seat, or allowed the seat to “come back,” with the result that the seat struck plaintiff’s right leg and caused a fracture of the right tibia, just below the knee.

Immediately after plaintiff got out of the limousine, the passenger who had been sitting in the middle of the back seat followed her by squeezing by the left side of Mrs. Jackson, exiting through the left rear door, just as plaintiff had done. The passenger on the right side of the rear seat exited through the right rear door of the vehicle.

On those facts, the trial judge rendered judgment in favor of plaintiff and against all defendants for $11,640.00. Defendants have appealed, contending that the trial judge erred in apparently finding that the driver of the limousine was negligent.

Plaintiff contends that the limousine in which she was riding at the time of her injury was a common or public carrier, and that the driver of that vehicle did not exercise the high degree of care for the safety of his passengers which is required of such a carrier. She argues, in brief and orally, that King was negligent in the following respects: (1) In having made “no attempt at all to move Mrs. Jackson so that plaintiff could exit the vehicle safely;” (2) in having “opened the door for her on the left side of the vehicle, on every occasion that she exited the vehicle, and did nothing further to see that she got out safely on that side;” and (3) in having done nothing “to get the lady to move” after requests were made of him by plaintiff and Mrs. Berry to do something.

The evidence shows that plaintiff either entered or exited from the limousine on eight different occasions, and that in each instance she went through the left rear door of that vehicle. No one occupied the left jump seat the first five times she undertook that maneuver. It was only on the last three such occasions that she had to “squeeze by” Mrs. Jackson to get into or out of the car. Although Mrs. Jackson did not move out of her seat on any of those three instances, she did lean forward each time to make it easier for plaintiff to go around her. Plaintiff got out of the limousine and she got back into it at the cemetery with no injury, and with no apparent danger of injury. The last time she got out of the vehicle, that being the instance when her injury was sustained, it appeared that Mrs. Jackson made an even greater effort than she had made before to convenience plaintiff by leaning forward and tilting the jump seat forward. Plaintiff unquestionably would have alighted from the limousine safely on that last occasion were it not for the fact that Mrs. Jackson suddenly and unexpectedly let the seat “come back” and strike plaintiff’s leg. The injury which plaintiff sustained, therefore, did not result from the failure of the driver to assist her in exiting, or in failing to compel Mrs. Jackson to move, or in opening the door on the left side of the vehicle. Instead, her injury resulted from the sudden, unexpected and unforseen action of Mrs. Jackson in allowing the jump seat to move back while plaintiff was getting out of the car.

We find no merit to plaintiff’s argument that the driver was at fault because he did not attempt to “move” Mrs. Jackson, and because he did nothing “to get the lady to move.” When plaintiff got out of the limousine at the cemetery nothing was said by anyone about Mrs. Jackson moving. That is understandable, because plaintiff did not subject herself to any apparent or conceivable danger or risk of injury by simply getting out of the ear through the door which was nearest to her. It is true that she discovered while doing so that it was not as easy for her to get out that way as it would have been if the jump seat had not been occupied, but we do not view her difficulty in exiting as an indication to her or to anyone else that there was or could be a danger or a risk of harm in getting out of the limousine under those circumstances.

The first time anyone suggested that Mrs. Jackson should move was when the parties were about to reenter the limousine after the grave site services. Plaintiff then asked defendant King to ask Mrs. Jackson to move, but she explained that her reason for doing so was that when they first arrived at the cemetery she had experienced some difficulty in getting out of the limousine. In response to plaintiff’s request, defendant King promptly asked Mrs. Jackson to move, but the latter refused to do so. King did not use physical force to compel that passenger to move, and we know of nothing else he could or should have done under those circumstances to make it easier for plaintiff to get in the car. In any event, plaintiff did reenter the vehicle safely at the cemetery.

When the limousine arrived at plaintiff’s home, the driver opened the left rear door so the passengers on the rear seat could exit from the vehicle. One of the other passengers, Mrs. Berry, suggested at that time that the person riding in the right jump seat should move up to the front so that Mrs. Jackson could slide over to her right, thus making it easier for plaintiff to get out. Mrs. Jackson refused to move, but she tilted her seat forward to give plaintiff more room. We do not believe that it became the duty of the driver, King, at that point to again ask Mrs. Jackson to move, and we find that he was not negligent in taking no further steps to compel her to leave the seat she was occupying.

Plaintiff argues that the driver was negligent in opening the door on the left side of the limousine each time plaintiff exited from it. In making that argument, plaintiff fails to observe that she sat on the left side of the back seat each time she entered that vehicle and that the left rear door was the one which was nearest and most convenient to her. The first two times she exited from the limousine, at the funeral home and at the church, no one was occupying the jump seats and those seats were folded out of the way. The driver cannot be criticized fairly for opening the left rear door for her to use on each of those occasions. The third time she got out of the limousine was at the cemetery. The left rear door not only was nearest to her, but by using it she avoided the necessity of having to climb over passengers on her right or sliding across the back seat, and at that time she did not know that it would be difficult or inconvenient for her to squeeze by the occupant of the left jump seat. We find no fault on the part of the driver in opening the left rear door for her to use in exiting from the vehicle at that time. Finally, when the limousine arrived at plaintiff’s home it was parked on the left side of the street against the curb. The left rear door not only was the nearest exit for plaintiff to use, but it afforded her the opportunity of stepping out on the curb instead of in the street, away from passing traffic, at a point nearer to her front door, and it eliminated the necessity of her sliding to the other side of the vehicle and then walking around the limousine to get back on the curb. She had entered and exited through that door safely on two prior occasions while Mrs. Jackson occupied the jump seat, and it was the same exit which the passenger seated in the middle of the back seat chose to use when she got out of the limousine. We find no negligence on the part of-the driver in opening the left rear door for plaintiff to use on that occasion.

Our ultimate conclusion is that defendant King, the driver, was free from negligence or fault, and that neither he nor his employer is liable to plaintiff for the injury which she sustained as a result of the above accident.

Plaintiff contends, however, that the limousine in which she was riding was a “common carrier” or a “public carrier,” and that as such it was the duty of the driver “to exercise the highest degree of care to transport one’s passenger safely to his or her destination, and any infraction or dereliction of that duty, however slight, which has a causal connection with an accident renders that carrier and its operator liable for damages.”

We are aware of the established line of jurisprudence which holds that a common carrier or a public carrier of passengers is required to exercise the highest degree of vigilance, care and precaution for the safety of its passengers, and that it is liable for the slightest negligence which causes or contributes to an injury. Such carrier is not the insurer of its passengers’ safety, however, and it is not liable in damages for injury to a passenger unless the evidence establishes that the injury resulted from some negligence, although slight, on the part of the carrier. Wise v. Prescott, 244 La. 157, 151 So.2d 356 (1963); Higgins v. New Orleans Public Serv., Inc., 347 So.2d 944 (La.App. 4 Cir., 1977); Alexander v. Continental Southern Lines, Inc., 130 So.2d 539 (La.App. 2 Cir., 1961); Duplessis v. New Orleans Public Service, Inc., 354 So.2d 768 (La.App. 4 Cir., 1978); Green v. TACA International Airlines, 304 So.2d 357 (La.1974).

In Duplessis, supra, we held that the defendant, a public carrier, was liable because the bus driver “was negligent, and that such negligence was a proximate cause of the injury.” In Higgins, supra, we reversed the trial court and dismissed plaintiff’s suit against a common carrier, because we found no negligence on the part of the carrier, and no breach of duty on its part to protect the injured passengers. In Alexander, supra, the Second Circuit Court of Appeal reversed the trial court and rejected plaintiff’s demands against a common carrier of passengers, because it found no negligence on the part of the carrier. And, in Hood v. U.S.I.F. Wynnewood Corp., 377 So.2d 480 (La.App. 4 Cir., 1979), we held that the Metry Cab Company, a public carrier, and the cab driver were not liable in damages because the evidence established “neither negligence nor the omission of any act of care on the part of the Metry cab driver.”

In the instant suit it is not necessary for us to determine whether the limousine which transported plaintiff Smith was a common carrier, a public carrier, a privately owned automobile, or any other class or type of vehicle, because we have concluded that the driver of that vehicle was not negligent, even slightly, in any respect whatsoever. Even if the limousine should be considered to be a common or public carrier, therefore, and if we should assume that the burden of proof shifted to defendants to prove that the driver was free from negligence, the evidence establishes that the driver was not negligent. Defendants thus are not liable in damages for the injuries which plaintiff sustained. We think the trial court erred in holding that plaintiff is entitled to recover.

We emphasize the fact that we are making no determination at all as to whether the limousine involved here was a common carrier, a public carrier, or a privately owned vehicle. Our holding with respect to that issue is simply that it is immaterial to the outcome of this case as to how the vehicle should or might be classified. There is no liability on the part of defendants even if the high standard of care required of common or public carriers should be applied.

The judgment appealed from is reversed, and judgment is hereby rendered in favor of defendants and against plaintiff, dismissing plaintiff’s suit at her costs. The costs of this appeal are assessed to plaintiff-ap-pellee.

REVERSED.

GARRISON, J., dissents with written reasons.

SCHOTT, J., dissents and assigns reasons.

GARRISON, Judge,

dissenting and assigning reasons.

Whether a vehicle is a common or public carrier is determined by the circumstances of its operation. The two circumstances of operation which clearly affirm public carrier status are as follows:

1. That it carries people and goods belonging to others for their benefit and for hire.

2. That it is held out as willing to serve the public. Ciaccio v. New Orleans Public Belt Railroad, et als., 285 F.Supp. 373 (5th Dist., 1978). Taxi cabs, city buses, even school buses have been held to be public carriers. Addison v. Checker Cab Co., 337 So.2d 592 (La.App. 4th, 1976); Sepulvado v. General Fire and Casualty Co., 146 So.2d 428 (La.App. 3rd, 1963). Additionally, R.S. 45:200.2(2) defines a “public carrier vehicle” as follows:

“. . . any motor vehicle, having a normal seating capacity of less than ten passengers, used for the transportation of passengers for hire over any streets by a route or to a destination controlled by the passenger. * * *” Acts 1962, No. 404 § 1.

Appellee personally arranged the limousine transportation with Willis-Gertrude-Geddes Funeral Homes in order to transport the deceased to the destination of appellee’s choice. (Tr. p. 8) Undeniably, the limousine was and is a public carrier.

As a public carrier, the limousine service owed a high duty of care to the plaintiff. That duty is to exercise the highest degree of care in transporting passengers safely to their destination, such that any infraction or dereliction of that duty, however slight, which has a causal connection with an accident, renders the carrier and its operator liable. Green v. TACA International Airlines, 304 So.2d 357 (1974); Young v. Fryoux, 222 So.2d 628 (La.App. 4th, 1969). I find that the limousine service was derelict as to the duty which was owed to plaintiff and should be held liable.

The Louisiana Legislature is cognizant of the current lack of adequate protection afforded to the public and enacted the following policy statements within The Public Passengers Motor Vehicle Responsibility Law, R.S. 45:200.1:

“The legislature of Louisiana, in the exercise of its police power, hereby finds and declares that the operation of public carrier vehicles (as herein defined) within this state is a business affected with the public interest; that there has been within this state a marked increase in the number of such vehicles, and the use thereof, with a consequent increase in hazards to the general public; that such vehicles regularly operate across municipal and parish boundaries; that the public in general, and the users of such vehicles in particular, are not protected against risks resulting from the operation of such vehicles; that uniform remedial legislation is required to correct and eliminate the conditions adversely affecting the public interest, to insure as far as practicable that the public will receive the benefits of more responsible operation of such vehicles; that the health, safety, morals, and welfare of the public make it imperative that effective, uniform, reasonable and just supervision, regulation and control be exercised over the operation of such vehicles to ensure their responsibility in order that the paramount interest of the public be protected and conserved, that irresponsible operation of such vehicles detrimental to the public interest be prevented, and that this remedial legislation should be construed liberally and enforced strictly in favor of the public; and that penalties for violations should be prescribed.” Added Acts 1962, No. 404 § 1.

I find no manifest error in the ruling of the trial court. Arceneaux v. Dominigue, 365 So.2d 1330 (La.1979); Canter v. Koehring Co., 283 So.2d 716 (La.1973). Indeed the trial judge was following the mandate of the legislature in R.S. 45:200.16:

“The Legislature hereby declares that R.S. 45:200.1 through 45:200.15 is remedial in nature and shall be construed liberally in favor of the public in general, and the users of public carrier vehicles in particular, and to exact strict compliance by the owners and operators of public carrier vehicles with the requirements of R.S. 45:200.1-45:200.14” Acts 1962, No. 404 § 2. (Emphasis added.)

Accordingly, I would affirm the judgment of the district court.

SCHOTT, Judge,

dissenting and assigning reasons:

The majority opinion exonerates defendants from liability because of a preoccupation with whether the driver was derelict in some duty to assist plaintiff in exiting or to compel Mrs. Jackson to move to make room for plaintiff to exit.

Whether the driver was negligent in these narrow respects or not the company which hires out limousines for transportation of passengers has a duty to assign seats to those passengers from which one can exit in a reasonable manner and with a reasonable degree of safety. For a company to assign a seat to a passenger and to expect her to go through some sort of contortions in order to get out of the vehicle in safety constitutes a breach of duty and renders that company liable for the injuries sustained by that passenger who, while trying to exit from the vehicle, is injured because of the tight, crowded spot where she was assigned to sit.

Accordingly, I would affirm the judgment of the trial court.


author: SCHOTT, Judge.

text:
    GEORGE KELLETT & SONS, INC. v. Mrs. Laura Dickerson, wife of/and William DOBBS.
    No. 11147.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 8, 1980.

      Samuel W. Ethridge, Kenner, for defendants-appellees.
    Frank P. Battard, Voelker & Jeffers, New Orleans, for plaintiff-appellant.
    Before REDMANN, GULOTTA and SCHOTT, JJ.
   SCHOTT, Judge.

Plaintiff supplied building materials to defendant’s contractor and brought this suit against the owners to assert a claim and a lien under LSA-R.S. 9:4812. Plaintiff alleged that the materials were delivered between September 12 and December 15, 1978, and that it recorded by its lien on February 22, 1979.

Defendants filed an exception of no right of action which was maintained by the trial court. From that judgment dismissing plaintiff’s suit it has appealed.

Under C.C.P. Art. 927 the exception of no right of action is defined as “no interest in the plaintiff to institute the suit.” From the pleadings as well as the evidence taken by the trial court on the exception plaintiff clearly has an interest in bringing the suit since it did in fact deliver the materials and is seeking payment for same. Consequently, the trial court was in error in dismissing plaintiff’s suit on the basis of the exception of no right of action.

On our own motion, pursuant to C.C.P. Art. 927, we have noticed the failure of plaintiff to state a cause of action in that the literal terms of the statute would preclude plaintiff from bringing this suit because the recordation of the lien was beyond the sixty day time limit prescribed by the statute in connection with an unrecorded building contract. However, the jurisprudence has interpreted the statute to provide a supplier with a cause of action even though recordation is made beyond sixty days if it occurs within sixty days after the last date on which any material was supplied or work was performed on the job by anyone. National Homestead Association v. Graham, 176 La. 1062, 47 So. 348 (1933), also First Wis. Nat. Bank of Milwaukee v. Novem, 349 So.2d 370 (La.App. 4th Cir. 1977). Since plaintiff may be able to remove the grounds of our objection to the petition by alleging facts which would bring the case within the ambit of those cited above plaintiff should be given an opportunity to amend its petition in order to state a cause of action in accordance with C.C.P. Art. 934.

Accordingly, the judgment appealed from is reversed and set aside and the case is remanded to the District Court for further proceedings consistent with this opinion. Costs of this appeal are taxed against defendants. All other costs are to await the outcome of the case.

REVERSED AND REMANDED.


author: PATTERSON, Chief Justice,

text:
    Buck ISHEE v. DUKES FORD COMPANY.
    No. 51693.
    Supreme Court of Mississippi.
    Feb. 27, 1980.
    Aultman & Aultman, Dorrance Aultman, Hattiesburg, for appellant.
    Tullos, Tullos & Tullos, Eugene C. Tullos, Raleigh, for appellee.
    Before PATTERSON, C. J., and BROOM and COFER, JJ.
   PATTERSON, Chief Justice,

for the Court:

In the Circuit Court of Smith County, Dukes Ford Company obtained a $5250 default judgment following a hearing upon a writ of inquiry granted to determine the compensable loss caused when Buck Ishee’s agent negligently damaged a new 1978 Ford Pinto owned by Dukes. Ishee argues (1) the hearing included no testimony showing the reasonableness and necessity of the cost ($2750) of proposed repairs and (2) the court erroneously awarded the balance of the judgment ($2500) as “lost profit.”

Because damages which could reasonably have been mitigated cannot be an element of tort recovery, we have held the cost of repairs may be recovered only if “reasonable and necessary.” See, e. g., Hartford Ins. Group v. Massey, 216 So.2d 415, 416 (Miss.1968). The record here fails to disclose the pre-tort retail market value of the vehicle, making it impossible to determine the necessity of the proposed repairs toward mitigating damages.

The proper measure of tort damages for a plaintiff holding personalty for sale in the retail market is the total diminution in retail market value proximately caused by the defendant’s tort. Cost of repair may be recovered, as well as the remaining diminution in pre-tort value after the proposed repairs, but in no event may cost of repair be recovered to the extent it exceeds the total diminution in pre-tort value in the case of one holding personalty for sale rather than for personal use. See gen. Calvert Fire Ins. Co. v. Newman, 240 Miss. 10, 124 So.2d 686, 688 (1960). We note that in the case of a retail merchant this measure of damages may on occasion incidentally encompass the loss of anticipated profit in the event it is shown that some diminution in pre-tort retail market value remains even after reasonable necessary repairs have been accomplished. We say “incidentally” to reaffirm and distinguish Mississippi Power Co. v. Harrison, 247 Miss. 400, 152 So.2d 892 (1963).

REVERSED AND REMANDED.

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


text:
    James SIDERIS v. MISSISSIPPI STATE BAR.
    Misc. No. 751.
    Supreme Court of Mississippi.
    March 5, 1980.
    Wittmann, Berry & Thompson, Thomas D. Berry, Jr., Gulfport, for appellant.
    Jimmy L. Miller, Jackson, for appellee.
   Appeal from Complaint Tribunal Court.

Before SMITH, P. J., and SUGG and BOWLING, JJ.

AFFIRMED AS AMENDED AND MODIFIED.

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


text:
    Mary Nell Harrell TUBBS v. Buck YOUNG.
    No. 51727.
    Supreme Court of Mississippi.
    March 5, 1980.
    Mitchell M. Lundy, Grenada, for appellant.
    Leon E. Provine, Grenada, for appellee.
   Appeal from Chancery Court, Grenada County; Dennis M. Baker, Chancellor.

Before PATTERSON, C. J., and BROOM an(J BOWLING, J J.

REVERSED AND RENDERED.

SMITH and ROBERTSON, P. JJ., and SUGG, WÁLKER, and LEE, JJ., concur.

COFER, J., took no part.


author: FAULKNER, Justice.

text:
    George RUSH d/b/a Rush Engineers v. THOMAS DUCKETT CONSTRUCTION CO., INC.
    77-594, 78-4.
    Supreme Court of Alabama.
    Sept. 21, 1979.
    Rehearing Denied Feb. 22, 1980.
    Thomas J. Knight, Anniston, for appellant.
    Ronald P. Thompson, of Thompson & Waldrop, Albertville, for appellee.
   FAULKNER, Justice.

These are appeals from orders pursuant to Alabama Rules of Civil Procedure (ARCP) 54(b) entering final judgments for Thomas Duckett Construction Co., Inc. on two claims in an action on contracts for three construction projects. We affirm.

On August 4, 1975, Thomas Duckett Construction Co., Inc. (Duckett, Inc.) filed a five count complaint against George Rush d/b/a Rush Engineers and Rush Engineers, Inc., a non-existent corporation, in Marshall County Circuit Court. The complaint contained claims based on contracts for landscaping and grading work on low rent hous-mg projects in Decatur and Tuskegee and for sewer and grading work on the Little Mountain State Park proj'ect in Gunters-ville. Four of the counts in the complaint contained allegations of breaches of four separate contracts involving the Decatur, Tuskegee and Guntersvillé proj'ects. The fifth count claimed damages for willful and intentional interference with Duckett’s performance of the Guntersville contracts. The Guntersville contracts were executed by Rush and Thomas Duckett d/b/a Duck-ett Grading Co., while the Decatur and Tuskegee contracts were executed by Rush and Duckett, Inc.

On August 25, Rush filed a motion to dismiss for improper venue on the ground that he did not do business by agent in Marshall County. That motion was denied and Rush then filed an answer admitting the existence of the contracts and denying any breaches and counterclaimed for damages he incurred by Duckett, Inc.’s failure to complete work under the respective contracts. On March 10,1977, nineteen months after his original venue motion, Rush moved for a rehearing on that motion alleging that he was a resident of Calhoun County, Alabama and that no work and labor had been performed in Marshall County. He requested that the case be transferred to Calhoun County under ARCP 82(d) as it was a personal action in contract against a resident individual. Subsequent to the filing of Rush’s motion for rehearing, but prior to the hearing on that motion, Duck-ett, Inc. had amended the complaint to include a count for work and labor done between May 20, 1975 and August, 1975 on the projects. The venue motion was overruled with the trial judge stating that the motion was filed too late and that the case involved work and labor. Rush later requested that the jury be charged on the venue issue and the charge was refused.

The bifurcated trials began on March 23, 1977, with the portions of the complaint relating to the Decatur project contracts being tried to the jury first. This trial proceeded over a number of objections to evidence and other matters, resulting in a jury verdict for Duckett, Inc. for twenty-six thousand four hundred four and 89/100 dollars ($26,404.89). Subsequent to this portion of the trial both Rush and Duckett, Inc. filed motions for summary judgment and supporting affidavits. The trial judge denied both motions. Duckett also filed a motion for final judgment asking that the judgment awarded by the jury on the Decatur project contracts be made final pursuant to ARCP 54(b). This matter was taken under advisement but the trial judge did not enter an order.

On February 22, 1978, Rush filed a motion under ARCP 42(b) requesting a separate trial on the issue of who was a proper party to litigate the counts in the complaint relating to the Guntersville project. That motion was overruled and the aspects of the case pertaining to the Guntersville project contracts were tried to the jury, beginning March 29, 1978. At trial Rush filed a motion. to exclude any extrinsic evidence on the point of the identity of the parties to the Guntersville contracts and in the alternative moved for summary judgment or a directed verdict on those counts. The jury returned a verdict in favor of Duckett, Inc. for ninety-nine thousand four hundred ninety and 88/100 dollars ($99,490.88).

Duckett, Inc. then filed a motion for final judgment asking that the judgments returned by the jury on both the Decatur and Guntersville projects be made final. After hearing arguments for and in opposition to this motion, the trial judge issued an order making the Decatur project judgment final and stating that at the end of a sixty day period he would rule on the motion relative to the Guntersville project judgment. On August 29, 1978, the trial judge entered an order making the Guntersville project final. The Tuskegee project counts of the complaint have not been tried.

On appeal, Rush initially asserts that the trial court erred in failing to transfer the case from Marshall County to Calhoun County Circuit Court since it was a civil action against a resident of this state residing in Calhoun County based on contract. He also contends that Duckett, Inc. should not have been allowed to maintain the suit on the Guntersville contracts, which were between Rush Engineers and Thomas Duck-ett d/b/a Duckett Grading Co. Finally, he argues that certain evidentiary rulings in the trial of the Decatur and Guntersville counts require reversal.

ARCP 82(b)(1)(A) provides that actions against an individual who has a permanent residence in this state

“Must be brought in the county where the defendant or any material defendant resides at the commencement of the action, except that if the action is a personal action other than an action on a contract, it may be brought either in the county where the act or omission complained of occurred, or in the county of the permanent residence of the defendant or one of them.”

That rule also states that venue of actions as set out in the statutes will not be affected except where the statute for venue for actions against individuals at law, Code of 1975, § 6-3-2(a), conflicts with the statute for venue of actions against individuals in equity, Code of 1975, § 6-3-2(b).

Counts I, II, III, and IV clearly sound in contract. Count V of the original complaint, which alleges willful and intentional interference with Duckett’s performance of the Guntersville contracts, has been argued by the parties to improperly request punitive damages for breach of contract or on the other hand, to allege an actionable tort of willful and intentional interference with performance of a contract. Whether Duck-ett, Inc. intended this count to sound in tort or contract is not clear. However, Duckett, Inc. amended its complaint to add a count for work and labor prior to the trial judge’s ruling on Rush’s motion for rehearing on the venue issue. ARCP 15(c) provides that amendments based on claims arising out of. the conduct, transaction, or occurrence set out in the original complaint relate back to the date of the original complaint. After the trial judge’s ruling, an additional and separate amendment for work and labor done on the Guntersville project was filed.

Actions for work and labor may properly be commenced in the county where the work was done. Code of 1975, § 6-3-3; Ex Parte City of Huntsville Hospital Board, 366 So.2d 684 (Ala.1978); Lucas v. Samford, 223 Ala. 235, 135 So. 576 (1931). Here there was work and labor performed in Marshall County on the Guntersville project contracts even though on the contract-based counts venue was properly in Calhoun County, the county where Rush resided. ARCP 82(c) states that where several claims have been joined, venue is proper in any county where any one of the claims could have been brought. The trial judge did not err in denying Rush’s motion for a rehearing on the venue issue because the work and labor count, Count VI, could properly be heard in Marshall County and thus the entire complaint could be heard in that county.

One who is not a party to a contract cannot sue for or otherwise take advantage of any breach of the contract. Twine v. Liberty National Life Insurance Co., 294 Ala. 43, 311 So.2d 299 (1975). Moody v. Moody, 339 So.2d 1030 (Ala.Civ.App.), cert. den. 339 So.2d 1035 (Ala.1976). Where fraud or mistake is not alleged, unless the contract is ambiguous, parol evidence may not be allowed to show that the party signing the contract actually signed on behalf of someone else. Hunter v. Austin Co., 336 So.2d 208 (Ala.1976). That case quoted Richmond Locomotive & Machine Works v. Moragne, 119 Ala. 80, 24 So. 834 (1898):

“If an agent, in the execution of a promissory note, disclose his principal, make it appear on the face of the paper that it is the contract of the principal, and sign it as agent, of course the principal is bound, the undertaking being within the agency, and the agent is not. On the other hand, if a principal is not disclosed on the face of the paper, and the party signing describes himself as agent, trustee, or the like, without more, it is the obligation alone of the party whose name is set to the paper, the superadded word or words being mere descriptio personae to be disregarded as surplusage, and evidence cannot be received to show that he was, in fact, the agent or trustee or the like of an undisclosed principal, cestui que trust, or the like, and that the obligation was that of such other person. And again, if the paper discloses the names of two parties, either of whom may be the obligor, and it is doubtful from the whole instrument which of the two is intended to be bound, and the signer describes himself as agent, or as acting in other representative capacity, parol evidence is admissible to show that it is the obligation of the party named in but not signing the paper.”

This Court has said that when a contract is ambiguous, the court may look to the construction which the parties have place on it to ascertain its true meaning. Birmingham Water Works Co. v. Windham, 190 Ala. 634, 67 So. 424 (1914).

Duckett, Inc. contended at trial and contends on appeal that the Guntersville project contracts were ambiguous as to the identity of the parties and thus various factual issues were open to construction using extrinsic or parol evidence. Their argument was based on the fact that one contract which stated it was between Rush Engineers and Thomas Duckett d/b/a Duckett Grading Co. was executed by Danny Duckett and another contract with the same parties named was signed Thomas Duckett, President. They presented exhibits and the testimony of George Rush indicating that Rush made seven progress payments on the Guntersville project contracts totaling one hundred fifty-four thousand six hundred sixteen and 40/100 dollars ($154,616.40) to Thomas Duckett Construction Co., Inc., not to Thomas Duckett individually or to Duckett Grading Co. Thomas Duckett testified that all equipment used belonged to Duckett, Inc. and all expenditures on the project were paid by the corporation. He further testified he had never done business as Duckett Grading Co. and had not transacted business in an individual capacity since 1970. The trial judge charged the jury on how they should find if they believed the contract to be ambiguous.

The trial judge, however, also charged the jury on implied contract if the jury did not find the Guntersville project contracts ambiguous and thus no express contract existing between Rush and Duckett, Inc., the parties to the suit, on the Guntersville project. Evidence was presented by Duckett, Inc. on the parties’ conduct which could have tended to show manifested mutual assent to the terms of an agreement implied from the factual circumstances, the requisites for an implied contract as set forth in Sims v. Etowah County Board of Education, 337 So.2d 1310 (Ala.1976); Adams v. Republic Steel Corp., 254 Ala. 620, 49 So.2d 214 (1950).

Furthermore, not only were the counts on the Guntersville project contracts tried in the portion of the suit relating to the Gun-tersville project but Count VI, the general work and labor count, and Count 1(A), the work and labor count specifically concerning the Guntersville project, were also heard. Evidence was presented which would show that the work and labor was done by Duckett, Inc., a party to the suit, rather than Thomas Duckett, d/b/a Duckett Grading Co.

In returning a verdict for Duckett, Inc., the jury did not indicate whether it did so because the express contract was ambiguous and Duckett, Inc., a proper party to the suit; because it found an implied contract; or because of the work and labor performed. Because of the presence of the work and labor counts in the Guntersville portion of the trial and the possibility of an implied contract, we cannot say the trial court erred in allowing Duckett, Inc. to maintain suit on the Guntersville project contracts.

Numerous evidentiary errors in both the Decatur and Guntersville portions of the trial have also been asserted by Rush. He alleges that a portion of a deposition was improperly introduced into evidence without showing that the requirement of ARCP 32(a)(3)(B) had been met; that certain estimates for partial payment and a Low Rent Public Housing Construction Report prepared by the Clerk of the Works were hearsay and inadmissible; that a letter and reply thereto allowed into evidence were self-serving, irrelevant, hearsay and prejudicial; that unlimited cross-examination of Thomas Duckett should have been allowed; that unfounded opinion testimony was allowed; and that a new amendment was permitted on the date set for trial. He further asserts that Duckett, Inc. did not have a matured and actionable claim at the time the complaint was filed; that the trial court should not have entered an order making the two judgments final under ARCP 54(b); and that a challenge for cause should have been granted of a juror, an employee in an insurance agency who normally wrote insurance for Duckett, Inc. On an examination of the record we can find no failure by the trial court to comply with the applicable rules of evidence, jury selection, and civil procedure.

AFFIRMED.

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


author: MADDOX, Justice.

text:
    Ora CROSS, et al. v. Eliza Marvin RUDDER et al. Eliza Marvin RUDDER et al. v. Ora CROSS et al.
    78-204, 78-205.
    Supreme Court of Alabama.
    Dec. 21, 1979.
    Rehearing Denied Feb. 8, 1980.

      Charles A. McGee of Traylor & McGee, P. C., Fort Payne, Jack Livingston, P. C., Scottsboro, for Ora Cross, et al.
    James R. Seale of Capell, Howard, Knabe & Cobbs, P.A., Montgomery, Morgan Weeks of Weeks, Weeks, & Haralson, Scottsboro, for Eliza Marvin Rudder, et al.
    Charles S. Doster, Anniston, E. L. Cole-beck, Florence, William M. Acker, Jr., of Dominick, Fletcher, Yeilding, Acker, Wood & Lloyd, P.A., Birmingham, Philip T. Shanks, Jr., Norman W. Harris, Decatur, for amicus curiae.
   ON APPLICATION FOR REHEARING

MADDOX, Justice.

The original opinion in this case is withdrawn and the following opinion is substituted in its place.

Three questions are presented by these appeals.

(1) Does a court of equity have power to authorize a guardian of a person of unsound mind to sell privately the ward’s real estate?

(2) Did the actions of the guardian of persons of unsound mind constitute “self-dealing” when she sold the property of her wards to her own children?

(3) Did the trial court err in finding that the children born to a person adjudged insane were his “heirs at law?”

We answer questions 1 and 2 in the affirmative. As to issue 3, we find that the trial court did not err and we affirm the judgment of the trial court as to that matter.

As the appellants state in brief: “The facts in this case read like a great American epic.” The land involved was originally owned by Clark Cross. When he died in 1907, his real estate was divided into four parcels consisting of over 600 acres each. One parcel was distributed to each of his four children: Charles Macklyn Cross (C. M. Cross), William Clark Cross (W. C. Cross), John B. Cross, and Eliza Marvin Rudder (E. M. Rudder). John Cross sold his acreage shortly after it was distributed to him. E. M. Rudder held her share until her death.

C. M. Cross and W. C. Cross were declared non compos mentis several years after their father’s death. Their sister, E. M. Rudder, served as their guardian until their deaths. She managed the three contiguous tracts which belonged to her and to her wards as a single family farm. She made periodic settlements of the wards’ estate and filed them with the court.

Both wards married, but the marriages were annulled shortly afterward by their sister, the guardian of both. W. C. Cross left no lineal descendants. C. M. Cross allegedly maintained a common-law marital relationship with one Annie Bell Daniels, and left five children.

Between 1957 and 1961, the guardian sold all the realty then belonging to her wards in a series of private transactions between her and her children. A portion of the realty was shortly afterward transferred back to the guardian in her individual capacity. Although various amounts of consideration for these transfers were involved, it appears from the record the average price paid per acre was less than twenty dollars. These private sales were confirmed by the Circuit Court of Jackson County, sitting in equity. The wards were never informed of the sales, but a guardian ad litem was appointed by the court. All deeds were recorded.

W. C. Cross died in 1963. C. M. Cross died in 1966. The guardian made a final settlement of the W. C. Cross estate. The C. M. Cross estate has never been settled and is still pending in the Jackson County Circuit Court.

This case was commenced in 1968, in the Circuit Court of Jackson County, Equity Division, by the heirs at law of the late John Cross. They petitioned for a rescission of the deeds made by the guardian and distribution of the subject lands to the heirs at law of the wards. They further petitioned the court to find the alleged children of C. M. Cross to be illegitimate and unable to take as heirs at law. Named as defendants were E. M. Rudder, her children and the purported children of C. M. Cross. The children of C. M. Cross cross-claimed contending they were not illegitimate as they were the offspring of the common-law marriage of C. M. Cross and their mother and were entitled to take their shares of the subject lands as heirs at law of the wards. They further contend that to deny them their share because they are illegitimate would deprive them of equal protection of the law.

All testimony was taken by depositions and no evidence was taken orally.

After ten years and one month of proceedings the last specially appointed judge, Honorable William D. Page, entered an order declaring cross plaintiffs to be heirs of the wards, but refused to rescind the deeds and denied any other relief to any party. Plaintiffs and cross plaintiffs appealed, claiming the court erred in denying them relief. Defendants appealed from the determination that the cross plaintiffs are the heirs at law of C. M. Cross.

I. RIGHT OF GUARDIAN TO SELL REAL ESTATE AT A PRIVATE SALE

On original deliverance, a majority of the Court was of the opinion that an equity court was without authority to authorize the private sale of an insane person’s property. In reaching that conclusion, the majority opined:

“The requisites of a valid sale of a ward’s realty were clearly set forth in Wilson v. McKleroy, 206 Ala. 342, 89 So. 584 (1921), wherein the Court held:

‘The legal title to land of a minor is not in his guardian, but in the ward. It cannot be sold by the guardian except by an order of a court. The court is the vendor. No title passes from the minor until the sale is confirmed by the court. The duty of the court is to secure the best price, full value of the property, for the interested party or parties. Montgomery v. Perryman, 147 Ala. 207, 41 So. 838, 119 Am.St.Rep. 61; Roy v. Roy, 159 Ala. 555, 48 So. 793.
‘The guardian of a minor has no right to sell privately her ward’s real estate.
‘When a necessity exists to sell the real estate of a ward for maintenance, division, to pay debts or reinvestment, the order may be obtained from a court of competent jurisdiction, there must be a public sale, the sale reported to the court, the report confirmed, the purchase money paid, and deed directed to be made by the court to the purchaser. In this way a valid title to real estate of a ward may pass to the purchaser. Sections 4411, 4409, 4426, Code 1907; Am. & Eng.Enc. of Law, vol. 15, p. 57; Le Roy v. Jacobosky, 136 N.C. 443, 48 S.E. 796, 67 L.R.A. 977.’
(Emphasis added.)

“Appellees (cross appellants) contend that the Circuit Court of Jackson County, sitting in equity, had jurisdiction to approve a private or a public sale of the wards’ land’. They cite Montgomery v. Montgomery, 236 Ala. 33, 180 So. 709 (1938), as authority for this principle. In Montgomery, this Court held, irrespective of statutory law, ‘the chancery court possesses the power to authorize the guardian of a non compos men-tis to sell or mortgage the real and personal property of the ward, whenever it becomes necessary to pay the debts of the estate, or to provide necessary maintenance and support for the non compos mentis, and of his family.’ The Montgomery case does not address whether the power to sell includes the power to sell at a private sale. We recognize that in Montgomery, the equity court had authorized a private conveyance. If Montgomery advances the proposition that equity has jurisdiction to order a private sale of a lunatic’s estate, it is inconsistent with the statement in Wilson v. McKleroy, that ‘there must be a public sale.’ Wilson’s requirement of ‘a public sale’ is consistent with § 26 — 4-144, and its predecessors, which required such sales to be at ‘public outcry.’ ”

The Court further opined that “[i]n view of the fact that the legislature has set up a statutory scheme whereby a sale of an insane person’s estate can be effected, a court of equity is without inherent power to deal with the estate in a manner inconsistent with the statutory scheme. This is what we understand Roy [Roy v. Roy, 159 Ala. 555, 48 So. 793 (1909)] holds, and we think the holding in Roy is consistent with equity jurisprudence, because equity ‘. jurisdiction over the person and property of lunatics and idiots, and all others who may be adjudicated non compos mentis, was derived by delegation from the crown; it was a portion of the king’s executive power as parens patriae, and did not belong to the court of chancery by virtue of its inherent and general judicial functions. This branch of the regal authority was delegated to the chancellor as the personal representative of the crown, by means of an official instrument called the Sign Manual, signed by the king’s own signature, and sealed with his own privy seal, and was exercised by the chancellor alone, and not by. the court of chancery.’ Pomeroy’s Equity Jurisprudence, Vol. 4, 5th ed. § 1311, p. 883 (1941).”

On rehearing, we have been favored with additional briefs by the parties and several briefs by amici curiae. The thrust of the briefs which urge rehearing on this particular issue are to the effect that the statement in Wilson v. McKleroy, which the majority used in the original opinion, is not the law. Typical of the arguments is one made in an amicus curiae brief, which reads as follows:

Wilson v. McKleroy, supra is in direct conflict with the opening statement in the earlier case of McCreary v. Billing, 176 Ala. 314, 315, 58 So. 311 (1912):
“ ‘It has long been the settled doctrine in this state that it is within the original jurisdiction of courts of equity to decree the sales of lands of infants, not only for their maintenance and education, or to remove incumbrances, or to satisfy charges resting thereon, but for the investment of the proceeds of sale for the general interest and advantage of the infant. Ex parte Jewett, 16 Ala. 409; Rivers v. Durr, 46 Ala. 418; Goodman v. Winter, 64 Ala. 410, 38 Am.Rep. 13; Thorington v. Thorington, 82 Ala. 489, 1 South. 716.’ [Emphasis provided in brief.]
******
“ ‘It is also the rule in this jurisdiction that, when it is manifestly for the benefit of an infant, courts of equity will permit trustees and guardians to change the character of his property; and if, without the authority of the court, the change is made the court will sanction and confirm it, if, under the circumstances, it would have decreed the change. Goodman v. Winter, supra. * * * ’ [Emphasis provided in brief.]
******
“The majority opinion quotes from Pomeroy’s Equity Jurisprudence, 5th Ed. (1941) . . . . We will ... illustrate that the English rule on this subject, which Pomeroy states, has never been the law in Alabama.
“Now we quote . . . from Pomeroy’s 4th Ed. Section 1309, Pages 3148-9 (1916):
* * It seems to be a doctrine sustained by a preponderance of authority, that a Court of Equity has no power, as a part of its jurisdiction over infants, to order a sale of the infant’s real estate for purpose of maintenance, education, or investment. * * * ’
“Seemingly this would support the statement in Wilson v. McKleroy, supra, upon which the majority relies and the opinion of the majority that a public auction must be had. However, in footnote (f) to this section at Page 3150 Pomeroy notes that Alabama holds to the contrary.”

An argument made in one brief is: (1) that Wilson v. McKleroy is not sound law, (2) that Roy v. Roy was a “digression” which “was rectified by the Act of 1911 as applied in Dent v. Foy, 206 Ala. 454, 90 So. 317,” and (3) that the statement quoted from Pomeroy by the majority in the original opinion should not be followed, because Alabama has specifically refused to follow that principle.

As can be readily seen, the brief writers, as did the Chief Justice and three Justices who concurred in the original opinion, recognized that Wilson v. McKleroy states specifically that “ . . . there must be a public sale.” (Emphasis added.) The applicants for rehearing and amici curiae, argue that Wilson v. McKleroy should not be followed. Typical of the arguments in this case is this one:

“We cannot believe that Wilson v. McKleroy, supra, overrules these authorities [McCreary v. Billing, 176 Ala. 314, 58 So. 311 (1912), and Thorington v. Thorington, 82 Ala. 489, 1 South. 716 (1887)], and is the absolute final word for the proposition that in sales of the property of a minor or lunatic, there must be a public auction. To give Wilson v. McKleroy the effect which the majority opinion gives it, is to ignore these earlier decisions leading to a different result as well as the later case of Montgomery v. Montgomery, 236 Ala. 33, 180 So. 709 (1938) which as the minority opinion points out so clearly, is inconsistent with the view of the majority.”

We wish to point out that on original deliverance, the majority was quite aware that the Court in Montgomery v. Perryman, 147 Ala. 207, 41 So. 838 (1906), which dealt with a lunatic’s estate, in talking about a court sale, opined: “This is true, whether the sale is public or private.” We then noted that Montgomery v. Perryman was cited in Wilson v. McKleroy, which the majority followed.

The majority, on original deliverance, was also aware that in Montgomery v. Montgomery, 236 Ala. 33, 180 So. 709 (1938), the sale was a private sale. In view of these facts, these questions were presented: Did Montgomery v. Montgomery overrule Wilson v. McKleroy? Was Wilson v. McKleroy inconsistent with Montgomery v. Perryman, a case cited therein? Has Alabama not followed the common-law rule, as set out by Pomeroy, when dealing with the estates of lunatics, as it apparently has in the case of infants ? Did Title 13, Section 138, which allows the circuit court to “proceed according to its own rules and practice” authorize the circuit court to order a private sale — that is, was the rule and practice of circuit courts, in 1911, when Title 13, § 138 was first adopted, to allow equity courts to order a private sale of a lunatic’s estate? The majority, on original deliverance, was faced with obviously inconsistent prior decisions of this Court. The majority, therefore, followed the clear statement in Wilson v. McKleroy that there must be a public sale, especially since that comported with the statutory scheme required in probate court.

After further study and reflection, and in view of the effect that the original opinion would have upon land titles, not only those involving estates of lunatics, but possibly also involving infants (although the case here does not involve infants), we are changing our opinion on the requirement that the sale of a lunatic’s real property must be by public outcry when the proceeding has been removed to circuit court.

We are now persuaded that Montgomery v. Montgomery, 236 Ala. 33, 180 So. 709 (1938), indirectly, at least, modified or overruled the statement in Wilson v. McKleroy that there must be a public sale of a ward’s property. In view of this, we now state what we consider to be the power of an equity court to order a sale of a lunatic’s estate under prior and current law:

The usual method of disposing of a lunatic’s real estate is by a public sale thereof, but in certain cases where the interests of the lunatic would be advanced, the sale may be a private one.

Although we now hold that an equity court is not bound by the statutory procedure which requires that a sale of a lunatic’s property by the probate court be “at public outcry,” (Code 1975, § 26-4-144), we call attention to this statement of public policy by the Legislature which restates the common-law rule that the usual method of disposing of a lunatic’s real estate is by a court-ordered public sale. In probate court, it is the sole method; in circuit court, it should be the usual method. It is only when the interests of the ward would be benefited that a private sale should be authorized. In no case should a court authorize a private sale without determining that it is in the best interest of the ward to do so.

Justice McClellan, dissenting in Roy v. Roy, 159 Ala. 555, 48 So. 793 (1909), first thought that equity could not order a private sale, but changed his mind; nevertheless, he still thought a private sale should be “rare.” He opined:

“Authority to effect the sale in question by private contract was sought and granted. The writer was at first inclined to the view that no such power could be exercised by the court, and this independent of the statute requiring, in sales by the probate court, that such sales be at public outcry. Fuller consideration has led me to the contrary conclusion. The practice of courts of equity to direct such sales by private contract seems to be well established, and so upon the idea that the manner of sale is a matter reposed in the sound discretion of that court. Dan Ch. Prac. p. 1293 and authorities there noted; Cox v. Price ([2] Va. [Dev. 170]) 22 S.E. 512. The court is the vendor, and its primary object is to obtain for the property, in the interest of those entitled to the proceeds, full value. This may be best accomplished by private contract, though such occasions must needs be rare. But, whether the sale be at public outcry, after due publicity, or by private contract, title thereunder does not pass until confirmation thereof by the court and the action of the court in that important particular would not be taken until fair opportunity is given parties in interest to resist, if so desired, the confirmation upon the ground among others of inadequacy of price, or, it may be, by such showing as would reasonably induce the court to conclude that a better and fairer price would be obtained by a sale at public outcry.” (Emphasis added.)

The statement in Wilson v. McKleroy that there must be a public sale should no longer be followed.

II. SELF-DEALING

Plaintiffs and cross plaintiffs below urge upon us that the decision of the trial court should be reversed on the ground that the guardian was in a fiduciary relationship with the wards and that the subject transactions constituted self-dealing. We agree.

In Calloway v. Gilmer, 36 Ala. 354 (1860), this Court held “. . . that a purchase by a trustee, for his own benefit at a sale of the trust property, is voidable at the option of the cestui que trust, and will be set -aside, if application for that purpose be made in a reasonable time; and it makes no difference in the application of the rule, whether the purchase be direct or indirect, in person, or through an agent, or by the medium of a person who subsequently reconveys to the trustee.” This longstanding rule of law was again recognized by implication in Craig v. Craig, 372 So.2d 16 (Ala.1979).

In Craig, supra, this Court held a limited exception to the rules against self-dealing exists which permits an executor to purchase only at a public sale of the property. That exception is not available in the instant case because all sales of the wards’ land were at private sales, even though with court approval.

In each instance the private sale by the guardian was made to her own children (who paid roughly $20 per acre). A short time after the sales were approved, a large portion of the land was given back to the guardian, in her individual capacity. In one instance, when the guardian was asking the court to approve a private sale, she increased the sales price without even consulting the proposed buyer. It is readily apparent that, in this case, the fiduciary relationship between the guardian and her wards was breached. We find that the trial court should have rescinded the deeds because of the guardian’s self-dealing.

III. LACHES

The appellees contend the claims herein are barred under the defense of laches. “In James v. James, [55 Ala. 525 (1876)], it was stated that knowledge of facts entitling one to relief and lack of diligence in enforcing those rights must coexist in order for laches to bar a claim.” Craig v. Craig, supra. Craig further notes that mere recordation of the deed does not impute knowledge of the transaction to one who has no duty to search for such a deed. We find the instant case was timely filed after discovery of the actions of the guardian by the heirs of the wards, with no prejudice resulting to the appellees.

Other arguments presented as to the timeliness of this action are without merit.

IV. CROSS-APPEAL

The heirs of the guardian and the late John B. Cross appeal from the judgment entered by the trial court finding that the children of C. M. Cross were his “heirs at law.” As previously indicated, the testimony in this case was taken by deposition and was not heard ore tenus by the trial court; consequently, it is this Court’s duty to weigh and consider the evidence de novo and arrive at a conclusion without the aid of any presumption in favor of the trial court’s findings of facts. Murphree v. Smith, 291 Ala. 20, 277 So.2d 327 (1973).

We have reviewed the record and we affirm the findings made by the trial court that the cross plaintiffs were the “heirs at law” of C. M. Cross. Sufficient testimony shows that it was the intent of C. M. Cross and Annie Bell Daniels to enter into a common-law marriage. At the birth of each child, “C. M. Cross” was duly recorded as its father. The children bore the name “Cross” and were generally reputed in the community to be the children of C. M. Cross. Testimony was admitted that indicated C. M. Cross spent as much time as he could with the family. He relied on the advice of a local lawyer that he had a common-law marriage with the mother of his children. The children believed C. M. Cross to be their father and he treated them as such.

A common-law marriage having been shown, the law presumes its validity, and casts the burden upon him who questions it to establish its invalidity. Sloss-Sheffield Steel & Iron Co. v. Alexander, 241 Ala. 476, 3 So.2d 46 (1941). The cross appellants contend that they met this burden primarily by showing the prior adjudication of insanity of C. M. Cross. They also claim that other elements necessary to a common-law marriage were not present.

Here, we have two legal presumptions which clash: (1) a presumption that a person adjudged insane continues to be insane until his sanity is established, and (2) the presumption that a marriage is legal and valid, especially when children are born as a result of that relationship. Insofar as Alabama is concerned, this situation has not heretofore presented itself, but an almost identical situation occurred in Indiana in 1932, when a wife, after an annulment because of her husband’s adjudicated insanity, continued to live with her non compos husband until his death, when she sought part of his estate as his wife. The Indiana Supreme Court stated:

“While it is true that after a person is once adjudged insane, or the fact of one’s insanity is established, there arises a presumption that such condition continues till the contrary is shown, and until his sanity is established, and such person would during such time be incompetent to effect a valid marriage or to enter into any other valid contract whatsoever, such is the rule where the question involved relates to ordinary business transactions in which the public has no interest. Redden v. Baker (1882) 86 Ind. 191. But where the legality of a marriage is involved, as in this case, we are confronted with another presumption, viz., the presumption of the legality of the marriage relation. The question therefore is: Which is the stronger presumption, that óf continued insanity of William Langdon for a period of almost five and one-half years, and consequent adultery, or that of restoration of sanity and legitimate cohabitation? If we presume that William Langdon regained his sanity before his death, and continued to live and cohabit with Grace Langdon as husband and wife, being accepted in society as such, the law will presume a good common-law marriage; the presumption being in favor of morality and not immorality, legitimacy and not bastardy. Boulden v. McIntire (1889), 119 Ind. 574, 21 N.E. 445, 12 Am.St.Rep. 453; Castor v. Davis (1889), 120 Ind. 231, 22 N.E. 110, 111.
“ ‘Every intendment of the law is in favor of matrimony. When marriage has been shown in evidence, whether regular or irregular, and whatever the form of the proof, the law raises a strong presumption of its legality; not only casting the burden of proof on the party objecting, but requiring him throughout, and in every particular, plainly to make the fact appear, against the constant pressure of this presumption that it is illegal and void. So that it can not be tried like ordinary questions of fact, which are independent of this sort of presumption.’ Bishop on M. & D. Vol. 1 (6th Ed.) § 457.” Langdon v. Langdon, 204 Ind. 321, 183 N.E. 400 (1932).

Although no longer applicable in Indiana because of that state’s abolishment of the common-law marriage, we think the reasoning in the Langdon case is sound. We adopt it.

We affirm the trial court’s finding that the cross plaintiffs were “the heirs at law” of C. M. Cross. We deem it unnecessary to discuss whether the cross plaintiffs may have had right of inheritance as illegiti-mates. Cf. Everage v. Gibson, 372 So.2d 829 (Ala.1979).

The judgment appealed from is therefore due to be affirmed, in part, reversed, in part, and remanded for further proceedings consistent with this opinion.

AFFIRMED, IN PART; REVERSED, IN PART; AND REMANDED. APPLICATION FOR REHEARING OVERRULED AND OPINION SUBSTITUTED.

All the Justices concur.

      .The status of the parties and their relationships are, as follows:
      CLARK CROSS
      (DIED 1907)
      CHARLES MACKLYN CROSS
      (NCM-1915) (DIED-1966)
      HEIRS-CROSS PLAINTIFFS:
      1. Florence Cross Curtis
      2. Martha Jane McGee
      3. James William Cross
      4. Dean Marvin Cross
      5. Sadie Cross Bias
      JOHN CROSS
      (DIED-1960)
      HEIRS-PLAINTIFFS:
      1. Mazie Green
      2. Ruby Housley
      3. Johnie Abney
      4. Robert Cross
      5. James Cross
      6. Frank Cross (Died ’77)
      (a) Judy Cross Ingram
      (b) Lynn Cross McCrary
      WILLIAM CLARK CROSS
      (NCM-1907) (DIED-1963)
      HEIRS-CROSS PLAINTIFFS,
      PLAINTIFFS, AND DEFENDANTS
      SINCE NO LINEAL DESCENDANTS.
      ELIZA MARVIN RUDDER
      (GUARDIAN)
      (DIED-1973)
      HEIRS - DEFENDANTS:
      1. James M. Rudder
      2. Robert Clark Rudder
      3. Ruth Timberlake

      . Now Code 1975, § 12-11-40, but note that the words “may, in its discretion, proceed according to its own rules and practice” in the 1940 Code were changed to read “shall proceed according to the Alabama Rules of Civil Procedure” in the 1975 Code.