text:
    C.E. BROWN, Jr. v. The FIRST NATIONAL BANK OF MONROEVILLE, etc., et al.
    82-500.
    Supreme Court of Alabama.
    Dec. 2, 1983.
    Rehearing Denied March 2, 1984.

      J. Milton Coxwell, Jr. of Coxwell & Cox-well, Monroeville, for appellant.
    William A. Robinson, Larry B. Childs, and Deborah J. Long of Cabaniss, Johnston, Gardner, Dumas & O’Neal, Birmingham, for appellees.
    Terry R. Smyly, Asst. Atty. Gen. and Gen. Counsel, State Banking Department for Kenneth R. McCartha, as Superintendent of Banks, amicus curiae.
   FAULKNER, Justice.

D.M. Maxwell brought an action in which C.E. Brown intervened as a party plaintiff, seeking to force The Monroe County Bank to divest itself of First National Bank of Monroeville stock held by it. The complaint alleged that Monroe County Bank’s ownership of the stock was illegal and that the bank was not entitled to any of the incidents of ownership of the stock. After a trial on the merits, the trial court decided the issues in favor of the banks, and Brown appealed.

The Monroe County Bank, an Alabama banking corporation with its principal place of business in Monroeville, has held the majority of the outstanding capital stock of First National for over thirty years. First National, a national banking association, is located less than one block from Monroe County Bank and is its chief competitor for business in the area. Maxwell has been a minority stockholder in First National since 1929 and has owned approximately 20% of its stock since at least 1950. Since 1952, Maxwell has served as a member of First National’s board of directors and he was First National's president from 1952 until his retirement in 1973. Brown inherited twenty shares (about 2% of the total outstanding shares) of First National stock during the pendency of the litigation.

A conflict between Maxwell and Monroe County Bank arose in 1978 over a proposal supported by Monroe County Bank to consolidate the banks. Until that time the legality of Monroe County Bank’s ownership of First National stock had never been questioned. In fact, in his capacity as either president or cashier of First National, Maxwell personally executed each stock certificate which was issued to Monroe County Bank. While the proposal to consolidate the banks was pending, an attorney representing Maxwell, Brown’s predecessor, and some other stockholders sent a letter to Monroe County Bank offering to sell their First National shares. The letter stated, inter alia:

“We are willing to sell our stock and thus withdraw any and all objections to the merger and stop any possible litigation as to the value of our stock.
“We are considering the possibility of asking the Court to render the merger invalid due to the illegal ownership and voting of the First National Bank stock by the Monroe County Bank, however, a sale of our stock would preclude this possibility.”

Maxwell was eventually successful in frustrating the merger, and in February 1979, he brought this action. His claim that the stock was held illegally was based on § 5-5-17, Code of Alabama (1975), which stated:

“No bank shall make a loan taking its own stock as security therefor or directly or indirectly purchase shares of its own stock, except in pursuance of provisions of law for reducing its capital stock. No bank shall subscribe for or own more than 10 percent of the capital stock of any other bank or invest or have invested an amount exceeding in the aggregate 25 percent of its own paid-in capital stock in the capital stock of any other bank or banks. Any bank acquiring capital stock in any other bank in the usual course of business in payment of an indebtedness owing to it must sell such portion of said stock as is in excess of the amount which it is permitted to hold and own as provided in this section within one year from the time the same is acquired. Any bank failing to sell any such excess stock within the time directed in this section shall forfeit to the state an amount equal to the face value of such excess stock held by it, which sum the superintendent of banks shall sue to recover in the name of the state in any court having jurisdiction, and the amount recovered shall be paid into the state treasury.”

During the pendency of the action the Gul-ledge-Cates Banking Reform Act of 1980 was enacted. It repealed the old banking code, of which § 5-5-17 was a part. The replacement provision, § 5-5A-27, states:

“No bank shall make a loan taking its own stock as security therefor or directly or indirectly purchase shares of its own stock, except in pursuance of provisions of law for reducing its capital stock. No bank shall subscribe for or own capital stock in any other bank except in the usual course of business in payment of an indebtedness or in order to prevent a loss on a debt owing to it and the bank must sell said stock within one year from the time the same is acquired unless this time period is extended by the superintendent; provided, however, that nothing in this section shall prohibit the ownership by any bank of any stock in another bank acquired prior to May 28, 1980.

The plaintiffs’ interpreted § 5-5A-27 as follows: Prior to 1980 Monroe County Bank could not have legally owned any more than 10% of First National Bank’s outstanding stock, due to the prohibition in § 5-5-17. The clause in the replacement provision “nothing in this section shall prohibit the ownership by any bank of any stock in another bank acquired prior to May 28, 1980” only allowed Monroe County Bank to continue holding stock in First National which it legally held prior to May 28, 1980, to wit, 10% of the outstanding shares. Both of the provisions, the plaintiffs argued, were in the nature of antitrust statutes. In support of their interpretation of the statute, the plaintiffs cited an opinion of the Comptroller of the Currency of the United States issued in connection with the proposed consolidation. That opinion, issued before § 5-5-17 was repealed, stated that the relationship between the banks “would appear to be a per se violation of [§ 5-5-17].”

The Superintendent of Banks of the State of Alabama, who, under the current banking code, has the exclusive authority to administer the state banking laws (see § 5-2A-1, Code of Alabama) filed an ami-cus brief. He stated that the banking department has been aware of Monroe County Bank’s stock holdings for many years and has never considered its ownership of First National stock to be violative of the banking laws. He maintained that § 5-5-17 did not apply to national banks. The term “bank” in § 5-5-17 only included an entity under the jurisdiction of the superintendent. Section 5-5-1, Code of Alabama (repealed). Because First National has always been a national bank, he said § 5-5-17 did not prohibit Monroe County Bank from owning its stock. Furthermore, the superintendent argued, the statute could, by its terms only be enforced by the banking department. It did not create a cause of action on behalf of the plaintiffs.

The banks’ arguments can be summarized as follows:

(1) Section 5-5-17 does not apply to First National’s stock because First National is not a state bank.

(2) Even if § 5-5-17 applied, it was repealed. Since the plaintiffs’ suit is not one for damages, but only seeks prospective equitable relief, the new statute expressly exempting stock purchased prior to May 28, 1980, is controlling.

(3) No violation of the banking laws would create a personal cause of action for the plaintiffs. The state banking department has the exclusive authority to enforce the banking law. Section 5-2A-1, Code of Alabama.

(4) Even if the plaintiffs, or their predecessors in title, had an action it was barred by the doctrine of laches, the rule of repose, or both.

The trial court ruled that if the plaintiffs, or their predecessors in interest, ever had an action against the defendants it has been barred by the passage of time. We agree. In addition to the doctrine of laches, Alabama has recognized a rule of repose that operates as a bar to claims unasserted for twenty years. Boshell v. Keith, 418 So.2d 89 (Ala.1982). Since Monroe County Bank has owned its stock in First National for over thirty years, any actions by other stockholders challenging the legality of its ownership are barred.

The plaintiffs argued that neither the doctrine of laches nor the rule of repose should bar their action, since they sought to end the continuing violation of a law designed to protect the public by insuring competition between banks. Such an argument might have merit if the action had been brought by the state banking department. It is not persuasive in an action brought by private plaintiffs who recognized Monroe County Bank’s title to the shares for over thirty years, benefited during that time from high earnings, and who then sought, in the trial court’s words, to “use the alleged illegal ownership ... as an advantageous device to negotiate the sale of certain stock in [the banks].” We agree with the superintendent that the public policy issues involved militate against the plaintiffs. A forced divestiture by Monroe County Bank of one of its major assets would have an adverse impact on both banks.

The plaintiffs also argued that, by engaging in a competing business, Monroe County Bank breached its fiduciary obligation to the plaintiffs as minority stockholders. See Burt v. Burt Boiler Works, 360 So.2d 327 (Ala.1978). We have examined the record and have concluded that there was ample evidence to support the trial court's finding that First National has been an extremely profitable entity that has been well managed throughout the period that Monroe County Bank has owned a majority of its shares. This is not, however, the proper action in which to raise those issues. An action for breach of fiduciary duty by majority stockholders should be brought on behalf of the corporation. Galbreath v. Scott, 433 So.2d 454, 457 (Ala.1983).

In light of our affirmance based on the rule of repose, we pretermit discussion of the other issues raised. The decision of the trial court is hereby affirmed.

AFFIRMED.

ALMON, EMBRY and ADAMS, JJ., concur.

TORBERT, C.J., concurs in the result.


source: Caselaw Access Project

author: MADDOX, Justice. MADDOX, Justice.

license: Public Domain

text:
    ALABAMA POWER COMPANY, a Corporation v. Barbara A. ROBINSON, who sues as Administratrix of the Estate of Thomas Gene Robinson, deceased.
    82-741.
    Supreme Court of Alabama.
    Dec. 22, 1983.
    As Modified on Denial of Rehearing Feb. 24, 1984.

      Harold A. Bowron, Jr. of Balch, Bing-ham, Baker, Ward, Smith, Bowman & Tha-gard, Birmingham, and William 0. Walton, Jr., Lafayette, for appellant.
    John W. Johnson, Jr., Lanett, and R.C. Wallace, Jr., Lafayette, for appellee.
   MADDOX, Justice.

A number of issues are raised by appellant, but the dispositive issue is whether the trial court erred to reversal in permitting the appellee’s expert witness to offer opinion evidence, over objection, regarding facts neither observed by him nor hypothesized by the use of hypothetical questions. We reverse and remand for a new trial.

This is the second appeal of this case, see Alabama Power Co. v. Robinson, 404 So.2d 22 (Ala.1981), and involves a wrongful death action commenced by appellee Barbara A. Robinson, as administratrix of the estate of Thomas Gene Robinson.

On April 10, 1975, Mr. Robinson was killed when a citizen’s band radio (CB) antenna he was assisting in lowering contacted one or more electric wires of appellant, Alabama Power Company. The accident occurred at the home of Robert and Cora Smith. Robert Smith was also killed in the accident. At the time the accident occurred, Mr. Robinson had been assisting Mr. Smith in taking down the CB antenna, which had been attached to the south side of the Smith home, so that it could be repaired. The antenna and the pole to which it was attached were more than 36 feet in height.

The facts indicate that Smith and Robinson discussed taking the antenna down and the consequent danger if the antenna struck appellant’s power lines running along Smith Street parallel to the Smith house. The primary line of this series of lines carried 7,200 volts. There were other less powerfully charged lines close to the house. Running from a transformer attached at the set pole to the Smith residence was a three-wire service drop of wrapped, but uninsulated, wire. These lines were 120/240 volt lines. From the record, it does not appear that either Smith or Robinson was aware that the service drop lines were uninsulated.

At trial, appellee sought to establish that some part of the antenna which Robinson was helping lower contacted the uninsulated service drop lines, resulting in a shock which caused the men to stumble and drop the antenna onto the more highly charged power line. The appellant, on the other hand, attempted to show that the antenna struck the 7,200-volt power line first because thé two men were careless in failing to detach a supporting guy wire; appellant •says that because the guy wire was not detached, it prevented the antenna from being lowered in such a manner as to avoid touching the power lines on Smith Street, and that the guy wire pulled the antenna back so that it fell into the more highly charged power line.

At the trial, appellee’s expert witness, Andrew Payne, was allowed by the trial court to testify, over objections and a motion to exclude, that the antenna “apparently” contacted appellant’s service drop lines. This testimony by appellee’s expert witness, along with the objections, appears in the record as follows:

“Q. If you eliminated the unnecessary conductor and had the construction as been [sic] identified on this plaintiff’s exhibit 163, how would that have affected this accident here today?
“A. It would have also missed that one. To make my answer complete though, I do think I should add to that, the fact that we are talking about the contact with the primary, with the 7200 volt to ground wire. But, apparently there was also contact with the 120/240 volt service drop. [Emphasis added.]
“HAROLD BOWRON — Your Honor, I object to that, there’s been no testimony, no evidence of that, that’s pure speculation and conjecture, it’s nothing but guess, speculation and conjecture, and it invades the province of the jury. There’s been no evidence of that and no testimony of that.
“COURT — Well, it’s an inference that can be drawn I believe, and he can, for the purpose of giving his answer he can assume that there might have been a contact with a 110 or 120/140 [sic] volt service line. That’s an inference that can be drawn from the evidence.
“HAROLD BOWRON — And just so my objection is complete, I move to exclude his answer in that regard, and I object to it on ground that it invades the province of the jury. There’s been no evidence, no testimony of that, no one has testified to that; as a matter of fact, the evidence and testimony has been to the contrary, that the pole involved was started in a direction to the right toward the corner of River Road and Smith Street.
“JAMES CALDWELL — And we object to the attorney testifying.
“HAROLD BOWRON — Well, there’s been no evidence and no testimony to that effect, it is pure speculation and conjecture on his part, and it is a voluntary statement on his part, he said, ‘of course I must add,’ and that he volunteered that, there’s been no evidence, no testimony of that; the evidence is to the contrary and I move to exclude it.
“COURT — Motion denied.
“HAROLD BOWRON — May I have a continuing objection, your Honor?
“COURT — You may.
“A. The witness said—
“Q. Mr. Noles?
“A. Mr. Noles said that when he looked up, he noticed that both of the men had had hold of the antenna before the antenna touched the 7200 volt wire, that they were in trouble, that they had begun to slouch. That indicated to me that that was the contact with the 120 volt wire, that’s what I would have expected to happen if they had come in contact with a 120 volt wire. And, the 120 volt wire of course, many people have been killed by a contact with a 120 volt wire, but also a great many more people have been stunned or shocked and either revive themselves or were revived by others. So, being shocked with a 120 volt conductor is one thing, but touching a 7200 volt wire is something entirely different.
“Q. Do you have any opinion if the guy wires played any part in this accident or not?
“A. They did, yes sir.
“Q. And in what respect is that, please sir?
“HAROLD BOWRON — Your Honor, I assume I have a continuing objection on each of the grounds stated previously. I object to the form of the question, and it is calling for a narrative statement. It is nothing but speculation and conjecture on his part, not premised on any facts or evidence or testimony in the record.
“COURT — Based upon the evidence you heard in this trial.
“A. Yes, it is, everything I said is based upon what I heard in the trial, yes sir.
“Q. Okay, go ahead.
“A. Mr. Noles, the first witness described the men as slouching and also that he had unfastened the guy wire on the west side of the house. And, we know the service drop wires were weatherproof, which didn’t provide any insulation to start with, and then there were gaps in that where the bare conductors below the weatherproofing were exposed.”

Payne’s opinion as to the antenna or some part of the antenna coming in contact with the service drop wire prior to coming in contact with the 7,200-volt power line was based on the previous testimony of Roger Noles, who had assisted in lowering the antenna. Noles, who at the time of the accident was kneeling on the roof of the Smith residence unfastening a guy wire which had been attached to the house, testified to the following sequence of events:

“Q. What did you see or hear?
“A. Well, I stayed on my knees and held the pole as long as I could hold it without falling off the house. And, when I was getting up and started to turn around, I heard a loud noise, and I turned around and looked, and I saw fire coming up the guy wires and saw them falling.
“Q. And then, what if anything happened to the antenna?
“A. The antenna fell back into the power lines on the side of the road.
“Q. Did you see the men fall before the antenna fell into the guy wires?
“A. Yes, sir.
“COURT — Before the antenna fell into the guy wires?
“Q. Excuse me, into the primary lines on the side of the street?
“A. Yes, sir.
“Q. Did you see the fire before it went into that area?
“A. Yes, sir.
“Q. Did you hear the noise before it went into that area?
“A. Yes, sir.”

He further testified as to the location of the antenna when he saw the fire:

“Q. Did you observe the antenna immediately after you saw the fire, I mean heard the noise you referred to?
“A. Yes, sir.
“Q. How far was it from the house at the time you saw it, please sir? The eave of the house?
“A. Guessing, I would say ten or twelve feet, the top of the antenna.
“Q. Had the bottom of the antenna been moved at that time or not?
“A. No, sir.

The testimony of Delmar Smith, a witness called by the appellant, who as a passenger in a passing car observed the tragic episode, testified as follows:

“Q. Tell us what you saw on that occasion at that time?
“A. Well, at that point, I was looking to my right, and these two guys was holding this CB antenna, it was leaning back like this, and it just come on back and hit the top main wire, and those two men had just stumbled forward on the ground. And, there was one guy still on top of the house. Just squatted down looking at them. I don’t think he’s here.”

He further testified:

“Q. What was the weather like, do you recall?
“A. It had been raining. The ground was wet.
“Q. When you saw the pole, as you described it, hit the top wire as you described it, did anything happen?
“A. Just a big ball of fire, and when that big ball of fire come, those two guys, it just threw them apart like that.
“Q. Prior to the time the big ball of fire occurred, were the men standing or were they falling?
“A. No, sir, it just knocked them on the ground after it hit that line.
“Q. Before it hit the line, what were the men doing?
“A. Both of them had a hold of that CB antenna and it was leaning back this-away, from the house, back this way toward the power line, and then it just come on over, and when it come over, it hit that top line and then there was that big ball of fire and it knocked them two guys down. One over here and one back over here.”

We include Smith’s testimony to show its consistency with that of the witness Noles, upon which the expert's opinion was based. According to Smith, the men did not fall before the antenna hit the wire on Smith Street and the big ball of fire appeared, but fell after contact with the 7,200-volt more highly charged electrical line.

Appellee admits that there was no testimony that the antenna or any part of the antenna hit the service drop lines, but nonetheless argues that it was a proper inference. In brief, appellee makes the following assertion:

“Although no witness can testify that a specific guy wire, or the antenna, contacted the 3 wire service drop, Plaintiff submits that a reasonable inference can be drawn from this testimony that contact was made with the 3 wire service drop before 7,200 volt contact. If so, a jury issue is made as to such service drop contact.” (Emphasis added.)

Appellant contends that it was reversible error to allow appellee’s expert witness, over appellant’s objections and motion to exclude, to testify to this conclusion because it was not based on any facts elicited at the trial, but on conjecture. We agree.

An expert witness may give his opinion based on his own knowledge of the facts, stating those facts and then his opinion, or he may give an opinion based upon a hypothetical question as to facts already in evidence or evidence to be subsequently admitted. Yates v. Christian Benevolent Funeral Homes, 356 So.2d 135, 139 (Ala.1978); C. Gamble, McElroy’s Alabama Evidence, § 130.01 (3d ed. 1977). Where personal observation is lacking, however, an expert witness cannot be permitted to give his expert opinion until facts upon which his opinion is to be based have been properly hypothesized before him. See Mitchell Square Bale Ginning Co. v. Grant, 143 Ala. 194, 197, 38 So. 855 (1904); Greer Bros., Inc. v. Walker, 416 So.2d 1045, 1048 (Ala.Civ.App.1982); see also 2 Wigmore on Evidence § 676 (Chadbourn rev. 1979).

The legal reasoning buttressing the necessity of hypothetical questions is explained in the following propositions:

“... 1. Testimony in the shape of inferences or conclusions always rests on certain premises of fact. That which has been called observation, serving as the basis of belief in matters directly cognizable by the senses — as, the facts of an affray, a conversation, a trespass, and the like — is here replaced by what may be called a consideration of the premise. If the witness has not considered or had in mind these premises, his inference or opinion is good for nothing. 2. These premises, a consideration of which is essential to the formation of the conclusion or opinion, must somehow he supplied to the jury by testimony. The same witness may supply both premises or conclusion; or one witness may supply the premises and another the conclusion. The two are not necessarily connected. 3. If the latter method is chosen, and a witness is put forward to testify to the conclusion, the premises considered by him must be expressly stated, as the basis of his conclusion; otherwise, since his conclusion rests for its validity upon a consideration of the premises, if those premises are not made to accompany the conclusion, the tribunal might be accepting a conclusion for which the witness had considered premises found by the tribunal not to be true. 4. Hence, the premises must be stated hypothetically in connection with the conclusion; then, by other testimony, the material for determining the truth of the assumed premises may be furnished to the tribunal.
“The key to the situation, in short, is that there may be two distinct subjects of testimony — premises, and inferences or conclusions; that the latter involves necessarily a consideration of the former; and that the tribunal must be furnished with the means of rejecting the latter if upon consultation they determine to reject the former, i.e., of distinguishing conclusions properly founded from conclusions improperly founded.” (Footnotes omitted.)

2 Wigmore on Evidence, supra, § 672 at 933-934.

We have opined that “[ejxperts may be permitted to state facts known to them because of their expert knowledge but should not be allowed to substitute opinion for fact, although they can express an opinion on established or assumed facts.” R.L. Reid, Inc. v. Plant, 350 So.2d 1022, 1025 (Ala.1977). The fact that hypothetical questioning was not utilized by appellee’s counsel when questioning appellee’s expert witness was not the only flaw in this evidence, however. In the instant case, the facts were in dispute as to whether the antenna hit the 7,200-volt wire before the men fell. Roger Noles testified that his attention was first attracted to the plight of Smith and Robinson by a loud noise, which other testimony indicated was consistent with the metal antenna hitting the more highly charged wire. The only testimony suggesting that the antenna contacted the service drop wires came from witness Payne, who based his conclusion on the testimony of Roger Noles. Yet, Payne incorrectly recalled Noles’s testimony by stating that the two men “began to slouch”, when in actuality, Noles testified that he “saw fire coming up the guy wires and saw them falling.”

The appellee contends that prior contact with the service drop lines is a reasonable inference which can be drawn from the facts shown by the evidence in this case. See Morrisette v. Commercial Credit Corp., 345 So.2d 298, 300 (Ala.Civ. App.1977). We disagree, however. Appellant’s expert witness concluded that the slouching of Smith and Robinson indicated that the antenna or some part of the antenna made contact with the service drop wires prior to touching the 7,200-volt wire, despite the absence of any direct evidence supporting this scenario. Yet, an equally plausible explanation suggested by other testimony at the trial is that the antenna was difficult to handle and became unwieldy, the men lost their footing on the damp ground and accidentally dropped the antenna onto the 7,200-volt wire. Consequently, we are of the opinion that the trial court erred by permitting appellee’s expert witness to testify that the antenna “apparently” struck the drop service lines. This conclusion was not a reasonable inference deduced from a premise of fact; rather it was a conclusion based on speculation and conjecture. Indeed, as a theory of causation, a conjecture is simply an explanation consistent with known facts or conditions, but not dedueible from them as a reasonable inference. See, e.g., Griffin Lumber Co. v. Harper, 247 Ala. 616, 25 So.2d 505 (1946).

We find it unnecessary to discuss the other issues raised by appellant; therefore, the judgment is reversed and the cause remanded for a new trial.

REVERSED AND REMANDED.

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

ON APPLICATION FOR REHEARING

MADDOX, Justice.

OPINION MODIFIED; APPLICATION FOR REHEARING OVERRULED.

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

      . The actual objection was that the expert’s opinion was "not predicated on sufficient facts” and that "no proper predicate has been laid for an expression of an opinion by this witness.”


author: MADDOX, Justice.

text:
    Ex parte Bobby MATTHEWS. (In re Charles D. BECK v. LIBERTY MUTUAL INSURANCE COMPANY, Bobby Matthews, et al.).
    82-918.
    Supreme Court of Alabama.
    Jan. 6, 1984.
    Rehearing Denied Feb. 24, 1984.
    T.J. Carnes of Carnes & Carnes, Albert-ville, for petitioner.
    Charles F. Carr of Rives & Peterson, Birmingham, for respondents.
   MADDOX, Justice.

The petitioner seeks issuance of a writ of mandamus directing the trial court to vacate its order reinstating an action against petitioner “... because the order of the court below of September 17, 1979, was a final judgment and disposed of the lawsuit and jurisdiction of the court over the case was lost ... and all subsequent proceedings are a nullity.” Thus, the issue presented in this petition is whether there is any case pending in the circuit court of Jefferson County wherein Charles D. Beck is the plaintiff and Bobby Matthews is a defendant.

On July 25, 1979, Charles D. Beck filed suit in the circuit court of Jefferson County against Liberty Mutual Insurance Company (Liberty Mutual), and fictitious defendants “A” through “M.” The complaint alleged that Beck lost a finger in a press while working for Matthews Manufacturing Company. Liberty Mutual was Matthews Manufacturing Company’s workman’s compensation insurance carrier. Liberty Mutual filed a motion to dismiss on August 8, 1979. This motion was granted by the trial court on September 12, 1979, and on September 17, 1979, it entered the following order on the case action summary sheet: “The order dated 9/12/79, is amended to read as follows: ‘The foregoing motion to dism. is granted. This case is dismissed. All cost taxed against plaintiff.’ Jd. Huey.”

Beck’s counsel maintains that prior to the trial court’s ruling on the motion to dismiss, he and counsel for Liberty Mutual had agreed to defer seeking a ruling on the motion to dismiss filed on August 8, 1979, until this Court rendered a decision in a pending case which the parties believed would be determinative. Counsel for Beck further maintains that neither plaintiff nor defendant Liberty Mutual had notice of the dismissal until October 1980, and that upon discovering that the case had been dismissed Beck, with Liberty Mutual’s consent, moved on October 9, 1980, to reinstate. The case action summary sheet does reflect that both parties proceeded with discovery apparently unaware that the case had been dismissed on September 17, 1979.

By consent of Beck and Liberty Mutual, a motion to reinstate the case was granted by the trial court on October 22, 1980. On October 30, 1980, Bobby Matthews, petitioner, was substituted for fictitious defendant “B.” Matthews answered on November 21, 1980, raising the statute of limitations issue only. Liberty Mutual, which had previously consented to have the case reinstated against it, moved for summary judgment on January 28, 1981, and the trial court granted summary judgment and entered an order pursuant to Rule 54(b), Ala.R.Civ.P., on February 18, 1981.

On March 26, 1981, Havir Manufacturing Company was substituted by Beck for fictitious party “F.” Havir is a Minnesota corporation not qualified to do business in Alabama. Although Beck alleges that he has attempted to obtain service of process on Havir, service has not yet been perfected. On September 17, 1982, Matthews moved to strike all orders entered by the court subsequent to the order which dismissed the case. Matthews, a resident of Marshall County, moved, alternatively, to transfer the case to Marshall County. Judge John N. Bryan, Jr. denied Matthews's motion to dismiss on February 17, 1983, but did transfer the case to Marshall County without holding a hearing. The case, however, was subsequently returned to Jefferson County. On May 18, 1983, Judge Bryan overruled Matthews’s earlier motion to dismiss. Consequently, on June 28, 1983, Matthews filed this petition for writ of mandamus against Judge Bryan and Beck, and requests this Court to consider whether or not there is any case pending in the Jefferson County circuit court with Charles D. Beck as plaintiff and Bobby Matthews as defendant, and if so, to require the trial court to permit Beck to perfect service on Havir Manufacturing Company within a reasonable time, and after that time, if service has not been perfected, to require Judge Bryan to transfer the case to Marshall County.

In his brief, petitioner asks: “Is there a case pending?” Citing Guilford v. Spartan Food Systems, Inc., 372 So.2d 7 (Ala. 1979), petitioner contends that by the standard of either the majority or the minority view in Guilford, “the lawsuit was terminated on September 17 when the court adjudicated that ‘this case is dismissed.’ ” We agree.

Respondents, citing Ex parte Hartford Ins. Co., 394 So.2d 933 (Ala.1981), assert that the order of October 22, 1980, vacating the dismissal order of September 17, 1979, is valid under Rule 60(b)(6), Ala.R.Civ.P., because the trial court mistakenly dismissed the case without the knowledge of the parties. In Ex parte Hartford Ins. Co., the case was dismissed without the knowledge of the plaintiff but, upon plaintiff’s motion, was reinstated seven months later by the trial court. The defendants filed motions for the trial court to reconsider its reinstatement order, but these motions were denied following a hearing on the matter. The defendants then, following a dismissal of their appeals by this Court, filed petitions for writs of mandamus or in the alternative, writs of prohibition. These petitions were denied by this Court, thereby permitting the trial court’s reinstatement order to stand.

In Ex parte Hartford Ins. Co., the following reasons were given by the plaintiff to justify reinstatement of the case:

“(1) that the law dealing with workmen’s compensation and co-employee immunity was unsettled in this state; furthermore, that the same issue was pending before this Court in Johnson v. American Mutual [Liability] Ins. Co., 394 So.2d 1 (Ala.1980), and that the custom in the Jefferson County Circuit Court was to hold a case in abeyance until the pending issues had been resolved; (2) that the plaintiff could show activity in the prosecution of the case in recent months; and (3) that his counsel did not know of the dismissal of the case until he discovered a cost bill which had earlier been received by a member of his law firm, but which had inadvertently been overlooked.”

394 So.2d at 935.

The respondent here argues that the circumstances of the instant case are similar in many respects to those in Ex parte Hartford Ins. Co.) however, we conclude that the motion for reinstatement of this case after its dismissal on September 17, 1979, should not have been granted as to Matthews for the reasons we shall now enumerate. In Ex parte Hartford Ins. Co., the cause was reinstated as to Hartford, and this Court held that under Rule 60(b)(6) the trial court had the discretion to order reinstatement in that case. In Hartford, the plaintiff filed a contested “motion to reinstate,” which this Court held was properly treated as a Rule 60(b) motion. Here, reinstatement of the cause was pursuant to the consent of Liberty Mutual; therefore, Liberty Mutual did not raise the question which was raised by Hartford in that case. The specific question here is whether Liberty Mutual could consent to the setting aside of a final judgment and resurrection of the case against a fictitious defendant. The larger legal question is whether a party can have the court set aside a final judgment entered in favor of a defendant, whether a named defendant or a fictitious defendant, without following the procedure required by Rule 60(b), Ala.R. Civ.P.

Rule 60(b) is the appropriate procedure for a delayed attack upon a judgment. See Comments, Rule 60(b), Ala.R. Civ.P. The Court assumes that the trial court treated Beck’s motion for reinstatement, which was consented to by Liberty Mutual, as a Rule 60(b)(6) motion. Although the trial court may have considered Beck’s motion to reinstate the case as a motion to set aside its September 17, 1979, order dismissing the case insofar as Liberty Mutual was concerned, it cannot be construed as a Rule 60(b)(6) motion in order to reinstate the case as to the fictitious parties named in the complaint, and in whose favor a final judgment had been rendered. The fictitious parties, including Bobby Matthews and Havir Manufacturing Company, neither consented to the reinstatement nor were named in Beck’s motion to reinstate. Consequently, the trial court’s dismissal of the case with taxation of costs on September 17, 1979, was a final judgment as to all parties, and there was no motion filed to set aside the final judgment entered as to those parties defendant other than Liberty Mutual; therefore, there was no action pending as to those parties substituted by Beck for the fictitiously named parties subsequent to reinstatement of the case as between Beck and Liberty Mutual. Under these circumstances, mandamus is the appropriate remedy, and we hereby grant the writ. See Ex parte Hartford Ins. Co., 394 So.2d 933 (Ala.1981).

WRIT GRANTED.

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

BEATTY, J., concurs in the result.

      . Johnson v. American Mutual Liability Insurance Company, 394 So.2d 1 (Ala.1980). That case involved a certified question from the United States District Court for the Northern District of Alabama.


author: ALMON, Justice.

text:
    Jessie JOHNSON and Elizabeth Johnson v. MACON COUNTY, a political subdivision.
    82-523.
    Supreme Court of Alabama.
    Jan. 20, 1984.
    Rehearing Denied March 2, 1984.
    Allan Nathanson of Raymon, Nathanson & Raymon, Tuskegee, for appellants.
    Edwin L. Davis of Gray, Seay & Lang-ford, Tuskegee, for appellee.
   ALMON, Justice.

Jessie and Elizabeth Johnson appeal from a judgment dismissing their tort action against Macon County on the grounds it was barred by the one-year statute of limitations.

According to the complaint, Jessie Johnson, on the evening of January 22, 1981, parked his car on the shoulder of Macon County Highway No. 19 to determine whether he had a flat tire. When he walked around the side of his car, he fell off the shoulder and down a steep embankment into a deep concrete culvert, where he remained overnight. The highway shoulder was not marked with any sign, warning or guardrail. As a result of this fall, Jessie sustained severe back and arm injuries. On January 21, 1982, Jessie and his wife Elizabeth filed a claim against Macon County in the office of the Macon County Commission, in accordance with Code 1975, § 11-12-8, alleging that the County’s negligent maintenance of a public highway resulted in permanent injuries to Jessie and loss of consortium to his wife Elizabeth. The Johnsons amended this claim on January 22, 1982, to itemize their damages. On March 8, 1982, the Macon County Commission denied their claim as amended, and the Johnsons filed suit against the County on April 9, 1982. The County filed a motion to dismiss the complaint based upon the one-year statute of limitations. On February 1, 1983, the circuit court dismissed the complaint, and the Johnsons filed notice of appeal to this Court.

Although the Johnsons' complaint against the County for negligent maintenance of a public highway is governed by Code 1975, § 6-2-39(a)(7), which requires commencement of the action within one year after the tortious event occurs, the administrative prerequisites to this action complicate the computation of this period. Because Code 1975, § 6-5-20, requires that an action may not be commenced against a county until the claim is first presented to and denied by the county commission, the time period between presentment and denial is not computed as a part of the limitation time, in accordance with Code 1975, § 6-2-12. Construing these statutes in pari materia, this Court held in Jones v. Lee County Commission, 394 So.2d 928 (Ala.1981), that in actions against a county the applicable statute of limitations is tolled for the interval of time between presentment and denial of the claim.

The computation rule enunciated in Jones necessarily controls the outcome of the case at bar. The one-year statute began to run against the Johnsons’ claim on January 22, 1981, the date on which the tortious act allegedly occurred. The statute would ordinarily have precluded their cause of action on January 22, 1982, but the statute stopped running on the day before its expiration, January 21, 1982, the date of claim presentment. The statute began running again on March 8, 1982, the date of claim denial, and because only one day remained outstanding on the statutory period, the period elapsed on March 9,1982. The Johnsons’ complaint, which was not filed until April 9, 1982, was therefore barred by the one-year statute of limitations.

The judgment of the circuit court dismissing the Johnsons’ action against Macon County is affirmed.

AFFIRMED.

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

      . A claim is deemed automatically denied if the commission fails to formally deny the claim within 90 days of presentment.


author: EMBRY, Justice.

text:
    Ruth N. FOY v. R.E. FOY, Jr., and Jane Loring Foy.
    82-382.
    Supreme Court of Alabama.
    Jan. 27, 1984.
    As Corrected on Denial of Rehearing March 2, 1984.

      C.R. Lewis of Lewis & Brackin, Dothan, for appellant.
    Huey D. Mclnish and William C. Carn, III, of Lee & Mclnish, Dothan, for appellee R.E. Foy, Jr.
    Warren Rowe of Rowe, Rowe & Sawyer, Enterprise, for appellee Jane Loring Foy.
   EMBRY, Justice.

The matter before this court is a suit by appellant, Ruth N. Foy, for specific performance by her son and daughter respectively, appellees R.E. Foy, Jr., and Jane Loring Foy, of an option to purchase real estate.

I

The facts are, in the main, undisputed; R.E. Foy, Sr., and Ruth N. Foy owned a one-half undivided interest in a parcel of real estate (approximately 20 acres) situated in Houston County, Alabama. A corporation owned and controlled by R.E. Foy, Sr., owned the other one-half undivided interest in that real estate.

In June of 1969, R.E. Foy, Sr., and Ruth Foy executed a general warranty deed, purporting to convey the entire twenty-acre parcel to their children, R.E. Foy, Jr., and Jane Loring Foy. They did not, it seems, at that time realize they owned only a one-half undivided interest in the parcel.

In July of 1969, R.E. Foy, Jr., and Jane Loring Foy executed an option contract, giving their parents the right, during their lifetimes, to repurchase said real estate for the price recited in- the deed as the purchase price for the property. The parties stipulate that no money changed hands during these transactions. However, R.E. Foy, Jr., contends there was a credit entered in his father’s books for payment.

Later, in March of 1970, R.E. Foy Company conveyed its interest in the tract to the children. That deed contained the following recitation:

“Formerly a deed from R.E. Foy and wife Ruth N. Foy, to the within grantees conveyed this one-half undivided interest to the above tract of real estate, and this instrument conveys the one-half'undivided interest of R.E. Foy Company in the entire tract of real estate formerly owned one-half by R.E. Foy Company and one-half by R.E. Foy, individually, to the present grantees in fee simple.”

Subsequent to these' transactions, a lot from the tract was conveyed to third parties named Henry. When the Henrys defaulted on a mortgage on the property, R.E. Foy, Jr., bought their interest in the lot.

R.E. Foy, Sr., died in 1976. Prior to his death, Ruth Foy was unaware of the option contract executed by Jane Foy and R.E. Foy, Jr. When she found the document in her husband’s files, she recorded it in the Probate Office of Houston County, and notified her children she intended to exercise her option to repurchase the property.

Jane Foy was willing to comply with her mother’s request that she convey the property to her mother. R.E. Foy, Jr., refused to submit to that request. He contends the option is invalid, and if valid, was revoked prior to acceptance.

Ruth Foy then instituted this action, seeking specific performance of the option by R.E. Foy, Jr. On motion of R.E. Foy, Jr., Jane Foy was added as an indispensable party defendant. Jane Foy has remained willing to convey the subject property to her mother throughout the course of this action.

Testimony was elicited which indicated that R.E. Foy, Sr., had contrived the conveyance of real estate in order to avoid estate and gift tax liability. The trial court concluded the transaction was fraudulent in nature. Its factual findings and conclusions are, in pertinent part, as follows:

“It is quite clear that both conveyances of said real estate were contrived and made by R.E. Foy, Sr., to lessen any tax liability that normally arises from such transactions. The purchase price recited in said deeds, being much lower than the actual values, negated capital gain taxes. An effective deed to the defendants would also remove said real estate from R.E. Foy, Sr.’s, estate. The option back from the defendants could arguably defeat the claim of a gift and hence any gift taxes. Regardless of how weak or phony these contentions may be, there is no doubt that the motive to pay less tax prompted these transactions.
“The defendant, Jane Loring Foy, says she understood that although the first deed and the option were not executed simultaneously, they were in fact related and intended to be part of the same package. The defendant, R.E. Foy, Jr., denies that he understood the transaction in this way, but admits that it was probably done to prevent gift tax liability. Considering the education of the defendant, Robert E. Foy, Jr., and his apparent business acumen, the court is of the opinion that he was at least as well advised and knowledgeable as his sister, the other defendant.
“The plaintiff, of course, contends that the option is valid, and she seeks to have it enforced. The defendant, Jane Loring Foy, agrees with her claim and is willing to reconvey her interest in said real estate to the plaintiff.
“The defendant, R.E. Foy, Jr., denies the validity of said option and refuses to make any conveyance of his interest in said real estate to the plaintiff.
“Counsel for both plaintiff and the defendant, R.E. Foy, Jr., argue ably and well the respective contentions of these parties. Considering the relationships of the parties and the usual and normal attributes of inheritance that emanate from such relationships, it would appear that, valid or not, the defendant R.E. Foy, Jr., would have no objection to re-conveying his interest in said property to his mother, the plaintiff, with the full expectation, that it would return again to him at her death. However, said defendant does not view his rights in this manner and the validity of the option is litigated.
“The court is very much impressed with the variety of issues raised in this case and the keen analysis of the law relative thereto, which the attorneys present so well in their briefs. However, it is the opinion of the court that the main issue in this ease is not the validity of the option, but the validity of the deeds which purport to have initially transferred the title of said real estate to the defendants. In considering the testimony and evidence as a whole, this court has repeatedly returned to this single issue and is unable to resolve it in a way that would validate these deeds.
“The parties very candidly admit that the main purpose of these transfers was to avoid taxes. Done in a proper and legal manner this would be quite acceptable. But from the testimony and evidence in this case, the transaction from a tax standpoint was a sham, a legal fraud. Now all parties come into court and ask that the court approve this basic fraud, but to settle other issues between them that arise from the fraud. No court should be a party to such a settlement, much less a court of equity. Even though this issue was not raised by the parties or the pleadings, it is one which the court must recognize in order to prevent its being used or manipulated to serve an illegal purpose.”

The trial court proceeded to vacate and set aside both deeds and the option contract. It later heard and denied Ruth Foy’s motion for a new trial. She contends the trial court erred by vacating and declaring null and void the option and deeds and in denying her motion for new trial.

II

It is a cardinal principle that, where testimony is taken ore tenus, the findings of fact made and entered by the trial court will be sustained unless they are clearly and palpably wrong or without supporting evidence, or are manifestly unjust. Renfroe v. Weaver, 285 Ala. 1, 228 So.2d 764 (1969). That rule is without application, however, when the trial court erroneously applies the law to the facts before it. Price v. South Central Bell, 294 Ala. 144, 313 So.2d 184 (1975); Pruitt v. Key, 281 Ala. 433, 203 So.2d 450 (1967); and Spears v. Taylor, 149 Ala. 180, 42 So. 1016 (1907).

III

Appellant Ruth Foy contends the trial court did erroneously apply the law to the facts in this case to find there was an illegal contact and a fraudulent conveyance. We agree.

The parties came into court to determine whether an executory option contract is enforceable and valid. The trial court, on its own motion, voided that contract and the deeds which transferred the land on the basis of the contract. Its authority for so doing is not clearly stated in its order, and we can find no legal or equitable authority under which that court’s actions can be affirmed.

The trial court’s decree seems to indicate it contemplated application of the “clean hands” doctrine in rendering its decision. We find that that doctrine, if indeed applied by the trial court, was improperly applied.

The theory behind the “clean hands” doctrine is that no cause of action can arise from an unrighteous inducement: exturpi causa non oritur actio. Thus, generally, where a party with unclean hands seeks relief, none is granted. In White v. Equitable Nuptial Ben. Union, 76 Ala. 251 (1884), that equitable principle was articulated:

“The court will not lend its aid to either party, for the enforcement of an illegal executory contract, in an action to recover for its nonexecution; and when a contract, contravening good morals or public policy, has been fully and voluntarily executed, and the parties are in pari delicto, the court will not interfere with the acquired rights of either at the instance of the other....”

76 Ala. at 264.

An exception to that general rule is where the court’s refusal to grant relief will be productive of an offense against public morals or good conscience, or a reflection upon the integrity of the court. We find no indication that the trial court’s refusal to act would have, under these circumstances, reflected poorly on that court.

Neither do we find any other equitable principle, maxim, or procedure on which to rest the trial court’s decision to vacate the deeds and the option contract. Equity jurisdiction was invoked by the appellant in this case on the grounds that she had a right to specific performance of the option contract. It is axiomatic that equity will act to protect a right and to provide a remedy not available at law. The trial court completely avoided the issue litigated by the parties, however, and declared the deeds and the option contract void. In doing so, it is not evident that the trial court sought to protect the right of any party with its equitable powers. The disposition by the trial court of the issues in this case seems to have uselessly altered their circumstances in that it has neither provided clear benefit to a party nor protected a legal right. It is axiomatic that equity will not use its powers to accomplish a useless purpose or to do a vain thing. Merchants National Bank of Mobile v. Morris, 273 Ala. 117, 136 So.2d 193 (1962).

The trial court’s order indicates its concern with tax evasion by the parties. The Internal Revenue Service was not a party to this lawsuit and there is no indication its right to proceed against the Foys, if it so desires, has been or will be compromised in any way by this lawsuit, whatever the disposition. It is inappropriate for a court of equity to act in anticipation of possible future controversies. American Federation of State, County and Municipal Employees v. Dawkins, 268 Ala. 13, 104 So.2d 827 (1958). See also Ex parte Wallace & Wallace Chemical & Oil Corporation, 417 So.2d 940 (Ala.1982).

IV

Likewise, there seems to be no legal authority for the trial court’s action. While Rules 15(b) and 54(c), ARCP, eliminate the necessity of strict pleading of issues tried with the implied consent of the parties, they do not provide a trial court with the authority to foist on the parties relief completely different from that contemplated by the parties, based on issues not raised by either party. See Continental Casualty Co. v. Barlar, 55 Ala.App. 441, 316 So.2d 690 (1975); and Greene v. Jones, 377 So.2d 947 (Ala.1979). See also Jackson v. Reed, 438 So.2d 750 (Ala.1983).

Section 8-9-6, Code 1975, provides that conveyances or assignments of property with the intent to “hinder, delay, or defraud creditors, purchasers or other persons of their lawful actions, damages, forfeitures, debts or demands ... are void.” However, the concurrence of three elements is essential before a conveyance can be declared fraudulent under this statute. It must be shown there is: (1) A creditor to be defrauded, (2) a debtor intending to defraud, and (3) a conveyance of property out of which the creditor could have realized his claim or some portion thereof. Roddam v. Martin, 285 Ala. 619, 235 So.2d 654 (1970). Anyone is a creditor, under this section, who has a right by law to demand, either presently or upon future contingency, the fulfillment of any obligation or contract. Gannard v. Eslava, 20 Ala. 732 (1852).

The word “creditors” as used in the statute does not have a narrow or technical interpretation. Galloway v. Shaddix, 197 Ala. 273, 72 So. 617 (1916). Thus, conceivably, any of the parties to this suit could have invoked this statute. However, the trial court itself notes in its decree that the issue was raised by none of the parties and clearly states the issue was raised sua sponte by that court:

“Now all parties come into Court and ask that the Court approve this basic fraud, but to settle other issues between them that arise from the fraud. No Court should be a party to such a settlement, much less a court of equity. Even though this issue was not raised by the parties or the pleadings, it is one which the court must recognize in order to prevent its being used or manipulated to serve an illegal purpose.” (Emphasis added.)

Because we find that, under these facts, no creditor is involved, the conveyance cannot be declared fraudulent under this statute.

V

In summary, the trial court has determined the tax consequences of a land transaction where that issue was neither presented by the parties nor properly litigated as an issue. Because the distinction between tax avoidance and tax evasion is often subtle and because the taxpayer clearly has a right to decrease the amount of his taxes, or to avoid them, by lawful means, we find the trial court’s disposition of the issue, under these circumstances, inappropriate.

Therefore, because the trial court acted outside its equitable jurisdiction, and without legal authority, to vacate and set aside the deeds and the option contract, we hold it erred in refusing to set aside its order and grant a new trial to appellant. We reverse and remand this cause for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

FAULKNER, ALMON and ADAMS, JJ., concur.

TORBERT, C.J., concurs in the result.


author: PER CURIAM. JONES, Justice

text:
    Murray G. HILL, Jr., as Administrator of the Estate of John Milton Giordano, IV, Deceased, and Murray G. Hill, Jr., as Administrator of the Estate of Lewis Wayne Giordano, Deceased v. John Milton GIORDANO, Jr., as Administrator of the Estate of John Milton Giordano, III.
    82-972.
    Supreme Court of Alabama.
    Feb. 3, 1984.
    Rehearing Denied March 9, 1984.
    Joseph M. Brown, Jr. of Cunningham, Bounds, Yance, Crowder & Brown and J. Edward Thornton of Thornton & McGowin, Mobile, for appellants.
    Alex T. Howard, Jr., David C. Hannan, and Celia J. Collins of Johnstone, Adams, May, Howard & Hill, Mobile, for appellee.
   PER CURIAM.

Being of the opinion that any modification or abolition of the parental immunity doctrine should be left to the prerogative of the legislature, we affirm the judgment below on the authority of Owens v. Auto Mutual Indemnity Co., 235 Ala. 9, 177 So. 133 (1937).

AFFIRMED.

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

FAULKNER and JONES, JJ., dissent.

JONES, Justice

(dissenting).

I respectfully dissent.

Plaintiff appeals from the trial court’s grant of summary judgment in a wrongful death action brought by the administrator of the estates of John Milton Giordano, IV, and Lewis Wayne Giordano, deceased minor children of the Defendant’s intestate, against the administrator of the estate of John Milton Giordano, III, deceased. The parties agree that the trial court’s order of dismissal is based solely on the doctrine of parental immunity as stated in Owens v. Auto Mutual Indemnity Co., 235 Ala. 9, 177 So. 133 (1937). I would overrule Owens and reverse and remand.

On March 2, 1981, John Milton Giordano, III, was piloting his small aircraft in which his wife, Cynthia H. Giordano, and his two minor sons, John Milton Giordano, IV, and Lewis Wayne Giordano, were passengers. Plaintiff/Appellant, as administrator of the estates of the two boys, alleges, inter alia, that the pilot/father negligently operated the aircraft and caused it to crash, thus proximately causing the deaths of the two boys, as well as his own, and his wife’s deaths. Plaintiff appeals from the judgment of dismissal, made final pursuant to ARCP 54(b), seeking abrogation of the parental immunity doctrine.

Legal scholars who have addressed this issue generally agree that the common law doctrine of parental immunity was created in 1891, when the Supreme Court of Mississippi decided the case of Hewlett v. George, 68 Miss. 703, 9 So. 885 (1891). A minor daughter brought an action against her deceased mother’s estate for personal injuries allegedly resulting from wrongful imprisonment in an insane asylum. The court said:

“The peace of society, and of the families composing society, and a sound public policy, designed to subserve he repose of families and the best interests of society, forbid the minor child a right to appear in court in the assertion of a claim to civil redress for personal injuries suffered at the hands of the parent.” 68 Miss, at 711, 9 So. at 887.

The Mississippi court did not base its decision on the English common law, nor on statutes or prior cases. Indeed, I find no suggestion of any earlier precedent for the doctrine. Over the years, many courts, including this Court in Owens v. Auto Mutual Indemnity Co., supra, embraced the idea of parental immunity, justifying their decisions on the policy considerations announced in Hewlett. These courts have upheld the doctrine on such grounds as: 1) domestic harmony and tranquility; 2) parental care, discipline, and control; 3) danger of fraud and collusion; and 4) depletion of family resources. See Berman, Time to Abolish Parent-Child Tort Immunity: A Call to Repudiate Mississippi’s Gift to the American Family, 4 Nova L.J. 25, 33 (1980).

In recent years, however, courts have whittled away at the immunity by creating numerous and varied exceptions. These exceptions have developed in cases where the court considers the parent-child relationship to have been abandoned, or where the tortious act of the parent does not arise out of the family relationship. See Comments: Parent-Child Tort Immunity: A Rule in Need of Change, 27 U.Miami L.Rev. 191 (1972).

Most courts agree that immunity does not apply to emancipated children, because the justifications for the rule cease to exist when the child leaves the support and security of the parents’ home. See Berman, supra, n. 61. Secondly, some courts refuse to recognize immunity for the intentional, wanton, or reckless infliction of bodily harm. Id., n. 62. By intentionally harming a child, the courts reason, the parent steps out of the bounds of parental capacity.

Another exception recognized by the courts is for negligent harm inflicted in the course of a business activity carried on by the parent. These courts reason that business enterprises customarily carry liability insurance, and it is essentially irrelevant that the injured person is a child of the insured. Id., n. 63.

The death of the parent and/or child, terminating the parent/child relationship, is also recognized as an exception to the doctrine. Id., n. 64. The presence of liability insurance is used as a factor in limiting the immunity, as well as the argument that the death statute vests a cause of action in surviving beneficiaries or in an administrator, and that the purpose of the death statute would be defeated if immunity were recognized. See Restatement (Second) of Torts § 895G (1979), Comment g.

Among those states embracing parental immunity, cases attempting to abolish or limit the doctrine seem to have their inception in Goller v. White, 20 Wis.2d 402, 122 N.W.2d 193 (1963). There, the Wisconsin Supreme Court partially abrogated the parent/child immunity, retaining its narrow field of operation for acts done in the maintenance of parental authority over the child, and “where the alleged negligent act involves an exercise of ordinary parental discretion with respect to the provisions of food, clothing, housing, medical and dental services, and other care.” 20 Wis.2d at 413, 122 N.W.2d at 198.

The term “other care” was later interpreted by the Wisconsin court not to be so broad in scope as to cover all parental conduct associated with the family relationship; and, specifically, parents’ supervision of their children at play fell outside the area where immunity had been retained. Cole v. Sears Roebuck & Co., 47 Wis.2d 629, 635, 177 N.W.2d 866, 868 (1970).

While Goller has been followed by a substantial minority of jurisdictions, a number of jurisdictions have completely abolished the immunity doctrine. The California Supreme Court, in Gibson v. Gibson, 3 Cal.3d 914, 92 Cal.Rptr. 288, 479 P.2d 648 (1971), rejected the Goller approach and totally abrogated the immunity rule. The solution proposed in Gibson judges parental conduct according to the following standard: “What would an ordinarily reasonable and prudent parent have done in similar circumstances?” A parent is thus held to a standard of reasonableness viewed in light of the parental role, regardless of the classification of his conduct.

Similar to the view of the California court is that espoused by the Restatement (Second) of Torts § 895G, which reads as follows:

“(1) A parent or child is not immune from tort liability to the other solely by reason of that relationship.
“(2) Repudiation of general tort immunity does not establish liability for an act or omission that, because of the parent-child relationship, is otherwise privileged or is not tortious.”

Subsection (1) completely abrogates the doctrine. The Comment to subsection (2) indicates that instances remain in which the parent/child relationship is still a relevant consideration in determining whether a physical harm should be actionable. The privilege of parental discipline, for example, may involve physical contact that would be considered actionable between strangers, but not actionable within the family.

The intimacies of family life also affect the determination of whether conduct is negligent. Normally, if the conduct which causes the injury does not grow directly out of the family relationship, the existence of negligence may be determined as if the parties were not related.

Conduct involving the exercise of parental authority or supervision, as well as the performance of parental duties, such as the duty to provide a safe place in which to live, and the other necessities of life, is essential to the parent/child relationship. For activities central to that relationship, particularly within the home itself, there is some relaxation of the stricter standard of conduct applied in dealing with third persons. As the Comment to subsection (2) observes, occurrences normally regarded as commonplace incidents in family life are “usually treated as accidents rather than the basis for imposing legal liability.”

The Court, in Owens v. Auto Mutual Indemnity Co., supra, attempted to analogize the parental immunity doctrine to the common law doctrine of interspousal immunity. At common law, interspousal tort immunity was a consequence of the legal identity of husband and wife. Husband and wife were considered as one person, and that person was the husband; so it was objectionable to permit a tort suit between two spouses. With the passage of statutes on the rights of married women, however, a wife was given a separate legal identity and a separate legal estate in her own property, thus allowing personal injury actions between spouses.

Alabama abolished interspousal immunity in Johnson v. Johnson, 201 Ala. 41, 77 So. 335 (1917). Because the legislature gave the wife an action against the husband for injuries to her property rights, the Johnson Court held that the legislature did not intend to deny the wife the right to sue her spouse separately, in tort, for damages arising from assaults upon her person. Johnson was followed by the Fifth Circuit in Bonner v. Williams, 370 F.2d 301 (5th Cir.1966), holding that a wrongful death action may be maintained by the deceased spouse’s personal representative or dependent against the tortfeasor spouse or his estate.

Arguably, the obligation of support incident to the disability of a minor is different from the support due to the status of spouses. Is the separateness of the legal entity of the wife enough to justify a distinction for not having interspousal immunity, but for maintaining parental immunity? Stated another way, the question remains: Given the right of minors to legally enforce property rights and contractual obligations without respect to the parent/child relationship, and given the risk of family disunity inherent in the wife’s right to sue her husband, do sufficient policy reasons persist for the retention of parental immunity for actions in tort? I think not.

As stated before, the foundation for the concept of parental immunity in this State is Owens v. Auto Mutual Indemnity Co., supra. There, the Court asked this question:

“Does the statute [§ 6-5-391], (as to suit by a personal representative to maintain an action and recover such damages as the jury may assess for injuries causing death of a minor child), even though it does not contain that portion of [§ 6-5-410] of the Code providing ‘if the testator or intestate could have maintained an action for such wrongful act, omission, or negligence, if it had not caused death,’ give the right of action to such minor child? And since [§ 6-5-391] does not contain the exception ‘if the testator or intestate could have maintained an action for such wrongful act,’ etc., does it change the rule of the common law and give the right to personal representative to sue for the tort committed by the parent on the child.” 235 Ala. at 12, 177 So.2d at 136? (Emphasis original.)

The Court answered the question in the negative, holding that “in the absence of a specific statute to the contrary, the rule in question, so long prevailing, would prevent an unemancipated minor child from recovering for an injury in tort against a parent.” 235 Ala. at 12, 177 So.2d at 136 (Emphasis supplied.)

It is apparent from a careful reading of Owens that counsel for the appellant argued that an action for wrongful death of a minor should lie even in the absence of an action for personal injury on behalf of a child against a parent. Evidently, counsel reasoned that because the minor’s wrongful death statute did not contain the language “if the ... intestate could have maintained an action for such wrongful act ... if it had not caused death” — language which appears in the adult wrongful death statute — an action should lie.

The obvious weakness of this argument is that it presumes the pre-existence of the common law doctrine of parental immunity. This narrow approach led the Court to observe, erroneously, that the wrongful death statute (Code 1975, § 6-5-391) did not intend to change the rule of the common law to give the personal representative the right to sue for the death of a minor resulting from the wrongful conduct of a parent.

Thus, the error is compounded, because both the adult wrongful death statute (Code 1975, § 6-5-410, initially enacted in 1852), and the minor wrongful death statute (Code 1975, § 6-5-391, initially enacted in 1876), preceded the earliest pronouncement of the common law parental immunity doctrine in 1891 — the date of Hewlett v. George, supra. The longest prevailing of the two rules, then, is the wrongful death statute and not the parental immunity doctrine. Obviously, the legislature, in its enactment of the wrongful death statute, could not possibly have intended to change a rule of law not then in being. Indeed, the inquiry should be reversed: Absent a specific statute to the contrary, should the Court adopt an exception to the general law of torts with the effect of contravening the policy considerations of the long prevailing Homicide Act?

The purpose of the wrongful death statute is to prevent homicide by wrongful act, omission, or negligence “without respect to personal condition or disability of the person so protected.” Breed v. Atlanta, B. & C.R.R., 241 Ala. 640, 642, 4 So.2d 315, 316 (1941). The parental immunity doctrine has its basis in domestic harmony. Isn’t the commission of the tort, in and of itself, disruptive to domestic harmony? We believe this question is self-answering, and to allow an exception to prevail over the wrongful death statute is to give undue prominence to that exception. After weighing the alternatives, I would abolish the exception and hold that a child or his representative may be compensated or awarded damages appropriate to the cause of action for negligent, wanton, or intentional acts which inflict injury or death.

In the final analysis, the parental immunity doctrine must be viewed for what it is: It is an exception to the common law rule that liability results for the infliction of tortious injuries. To be sure, I was tempted, initially, to follow the course of action of states that have carved out exceptions to the doctrine. These exceptions, however, are nothing more than exceptions to the exception. In my view, when the point is reached where the courts promulgate exceptions, and then create exceptions to the exception, it is time for re-examination. Therefore, after carefully considering each of the recognized exceptions to the parental immunity doctrine, I believe they create more problems than they solve.

Indeed, the Wisconsin experience is a case in point. The Goller court, recognizing the parental immunity doctrine, established an exception partially abrogating the immunity. Subsequently, the Cole case qualified the earlier Goller holding. Thus, Goller recognized the immunity exception to the law of torts and created an exception to the exception. Then Cole, in effect, created an exception to the exception to the exception.

It seems to me that the more straightforward approach is to adopt § 895G of the Restatement. As § 895G recognizes, however, total abrogation of the doctrine raises certain questions concerning the role of parental discipline, supervision, duty of support, and the intimacies of family life. But this is not an abberation in the law of torts. Instead, by qualifying that conduct which is actionable on behalf of a minor against a parent, the Restatement represents a complete return to the common law. In other words, tort law, as it had evolved prior to Hewlett, recognized that certain parental conduct, otherwise tortious as between strangers, would not be cognizable as between parent and child.

In my view, it is better to totally abrogate the immunity and qualify parental conduct which will not be cognizable as tortious, than to retain the immunity exception and further complicate the law upon which damages may be awarded for conduct causing injury or death.

In conclusion, replying to the argument (common to both interspousal and parental immunity) that familial conflict is better kept in the home rather than aired publicly, I quote from Johnson, supra:

“[A]s for the policy which would avoid the public airing of family troubles, we see no reason why it should weigh more heavily against this action than against those which the courts universally allow.” 201 Ala. at 44, 77 So. at 338.

FAULKNER, J., concurs.

      . The suit includes other defendants to whom the judgment of dismissal does not apply.

      . Although Johnson is commonly alluded to as abolishing interspousal immunity in Alabama, and although the case explicitly states that “at common law no such action could be maintained,” it does not cite, nor do we find, any earlier Alabama cases expressly applying the doctrine of interspousal immunity. More accurately, then, Johnson, while not overruling earlier precedent to the contrary, refused to adopt interspousal immunity in Alabama.

      . At first blush, it appears there was a hiatus between 1852 and 1876 when no wrongful death action existed in Alabama on behalf of a deceased minor. This is not true. In actuality, the 1852 statute was all-inclusive, covering all natural persons. The 1876 act merely created a parental preference for the institution of suit on behalf of the deceased minor, in lieu of vesting the cause of action in the personal representative, under the circumstances therein prescribed. Apparently unaware of the history of the two acts, the appellant in Owens, centering his argument on the difference in the wording of the two acts, misled the Court in its rationale with respect to the intent of the subsequent act to abolish the common law parental immunity doctrine, when, in fact, no such common law doctrine existed at the time of the enactment of the wrongful death statute in 1852.


author: ADAMS, Justice.

text:
    Robert MASSEY, as Father and Next Friend of Joan Teresa Massey, a minor v. Ernest WRIGHT and Glenda Wright.
    82-713.
    Supreme Court of Alabama.
    Feb. 10, 1984.

      Stephen J. Pettit of Knight & Griffith, Cullman, for appellant.
    Eugene D. Martenson and Rebecca L. Shows of Huie, Pernambucq & Stewart, Birmingham, for appellees.
   ADAMS, Justice.

This appeal arises from a personal injury suit filed by Robert Massey on behalf of his minor daughter, Joan Teresa Massey, who was injured while swimming in the defendants’ swimming pool during a visit to their home. The amended complaint alleged negligence, negligence due to the defendants’ failure to provide adequate safety devices for the pool, negligence in that the defendants had knowledge of a hidden peril and failed to notify Joan, negligence in the defendants’ attempts to rescue the child, and willful and wanton injury. After extensive discovery, the defendants moved for a summary judgment. The court, after considering the affidavits, depositions, and briefs filed by both sides, granted summary judgment in favor of the defendants, and the plaintiff appealed.

Massey argues on appeal that the evidence presents a genuine issue of material fact under each of the following theories: (1) breach of duty owed to a social guest; (2) attractive nuisance; (2) dangerous instrumentality; (4) breach of duty to supervise a child entrusted to defendants’ care; and (5) breach of duty imposed by a city ordinance. After a thorough review of the evidence that was before the trial court, we disagree. The judgment of the trial court is affirmed.

The incident from which the suit arose happened as follows:

Joan Teresa Massey was invited by the defendants’ daughter, Terry Wright, to spend the night at the Wright home on May 23, 1980. ' Both girls were twelve years old. Two other girls were also invited. It was known by all the children that the Wrights had a swimming pool, and they all brought bathing suits to the house. Mrs. Wright picked the girls up in her car at school around 12:00, brought them to her house, and prepared lunch for them. At about 3:00, Mrs. Wright left to pick up another child at school. On her return, she took all the children, including her 3-year-old, to the pool.

There is undisputed testimony that Mrs. Wright told the children not to go to the deep end of the pool, but to stay at the shallow end. Shortly after this instruction, Joan Massey ran around the pool to the deep end and jumped in feet first. Mrs. Wright followed Joan to the deep end of the pool. It appears from the testimony that Joan started rising toward the surface, although her face never cleared the water. Then, with no evidence of struggle or effort to swim, she sank back down. At this point she suddenly became limp and collapsed to the bottom of the deepest part of the pool. Joan’s cousin, Jo Linda Smith, who was also at the party, screamed that Joan was having a seizure. The evidence indicates that Mrs. Wright had no knowledge, up to that moment, that Joan suffered from grand mal and petit mal seizures. The evidence is somewhat conflicting as to exactly what happened next, but it is undisputed that Mrs. Wright shouted for Terry to call the fire department, which she immediately did. Mrs. Wright then got a pole and was ultimately able to push Joan over to a sloping side of the pool, where she managed to reach her with her feet, pull her up until she got her with her hands, and carry her to the shallow end of the pool. From there, the other children helped to lift Joan from the water. Mrs. Wright then began to give Joan mouth-to-mouth resuscitation. Shortly thereafter, the rescue team arrived and took over the resuscitation efforts.

Joan was hospitalized for some time, and was still receiving speech and physical therapy at the time of her deposition. The treating physicians testified that she suffered oxygen deprivation during the incident. The extent of her injuries indicates that she was deprived of oxygen for five to ten minutes. She is now in special education classes. Her physicians testified that she is expected to have permanent brain damage.

1.

It is undisputed that on the date of the injury Joan Massey was a social guest of the Wrights. In Alabama a social guest is a licensee of the landowner. Bryant v. Morley, 406 So.2d 394 (Ala.1981); Morgan v. Kirkpatrick, 276 Ala. 7, 158 So.2d 650 (1963). The duty owed to a licensee by the landowner is not to willfully or wantonly injure him, or not to negligently injure him after discovering that he is in peril. McMullan v. Butler, 346 So.2d 950 (Ala.1977); Tolbert v. Gulsby, 333 So.2d 129 (Ala.1976). The reason for this rule is the belief that a guest should not expect better than that which the host has, but should, rather, accommodate himself to the conditions of his host. McMullan v. Butler, supra; Morgan v. Kirkpatrick, supra.

Massey argues that the pool was abnormally dangerous because it lacked a ladder at the deep end and a deep water warning rope, and that permitting Joan Massey to swim in it was evidence of wantonness. However, the undisputed evidence shows that Mrs. Wright did not give the children permission to swim in the deep water, but warned them specifically not to do so. Joan did not inadvertently wander into the deep water because of the lack of a warning rope, but ran around the pool and jumped into the deep water, against Mrs. Wright’s instructions. Under the circumstances, we find no evidence of wantonness on the part of the defendants.

In addition, Massey argues that there is evidence that Mrs. Wright was guilty of negligently injuring Joan Massey after she became aware of Joan’s peril. He bases this argument on the testimony of plaintiffs expert that (1) the method of rescue chosen was not in conformance with good lifesaving procedures; (2) that a better method was easily available to Mrs. Wright, who testified that she knew how to swim; (3) that the available alternative was in conformance with proper lifesaving practice; and (4) that the method chosen actually worsened Joan’s injury by delaying respiration and possibly forcing air from her lungs. Whether Mrs. Wright used proper rescue techniques is certainly in dispute, since the defendants’ expert in water safety testified that the techniques used were proper. However, the undisputed evidence is that, before Mrs. Wright attempted to rescue her, Joan was lying unconscious on the bottom of the pool. If Mrs. Wright had undertaken no rescue, it is virtually certain that the child would have drowned. In Standifer v. Pate, 291 Ala. 434, 282 So.2d 261 (1973), this court quoted with approval from H.H. Parker & Brother v. Hodgson, 172 Ala. 632, 55 So. 818 (1911):

[WJhile a volunteer is not responsible for the failure or success of the act done by him, yet if by undertaking to do it, though it be voluntary, he brings about a state of affairs which results in injury that would not have occurred if he had not made the effort at all, he is liable.

Standifer v. Pate, 291 Ala. at 437, 282 So.2d at 264 (emphasis in original). While it is unclear whether some other method of rescue might have prevented or lessened the injury, it is clear that if Mrs. Wright had done nothing the injury would have been much worse. Under this standard, there is no evidence of injury caused by Mrs. Wright’s action after discovering Joan’s peril.

2.

In arguing the theory of attractive nuisance, the appellant relies on Tolbert v. Gulsby, supra, a case not involving a swimming pool, which he claims necessarily, albeit sub silentio, overruled the line of Alabama cases holding that the attractive nuisance doctrine does not apply to bodies of water. The appellant’s reliance is misplaced. In Earnest v. Regent Pool, Inc., 288 Ala. 63, 257 So.2d 313 (1972), it was stated:

Of course, the attractive nuisance doctrine cannot apply under the facts presented in this count because the swimming pool, the dangerous condition complained of, is patent and obvious to the trespasser. It is well settled in Alabama that where the danger from the instrumentality which caused the injury is patent and obvious the doctrine of attractive nuisance is inapplicable. Republic Steel Corp. v. Tillery, 261 Ala. 34, 72 So.2d 719; Luallen v. Woodstock Iron & Steel Corp., 236 Ala. 621, 184 So. 182; Ford v. Planters’ Chem. & Oil Co., 220 Ala. 669, 126 So. 866; Williams v. Bolding, 220 Ala. 328, 124 So. 892; Eades v. American Cast-Iron Pipe Co., 208 Ala. 556, 94 So. 593; Athey v. Tennessee Coal, Iron & Ry. Co., 191 Ala. 646, 68 So. 154; Alabama Great So. R.R. Co. v. Green, 276 Ala. 120, 159 So.2d 823; City of Dothan v. Gulledge, 276 Ala. 433, 163 So.2d 217.

Earnest v. Regent Pool, Inc., 288 Ala. at 66, 257 So.2d at 315-316.

In Glover v. City of Mobile, 417 So.2d 175 (Ala.1982), a post-Tolbert case, this court quoted from Bailey v. City of Mobile, 292 Ala. 436, 296 So.2d 149 (1974) in affirming a summary judgment on an attractive nuisance count:

[Sjummary judgment as to the count of attractive nuisance was properly entered by the trial court. In Bailey v. City of Mobile, 292 Ala. 436, 296 So.2d 149 (1974), this Court considered an action against the City for the drowning deaths of two children in a deep drainage ditch. The Court denied liability and held:
“Finally, this court said in Mayo v. Mobile Asphalt Co., 272 Ala. 442, 131 So.2d 881:
“ ‘We have held that water hazards are not dangerous instrumentalities and no legal duty is imposed on the owner of property to erect barriers, or other safeguards to protect children, not invitees, from water hazards. Cobb v. Lowe Mfg. Co., 227 Ala. 456, 150 So. 687.’ ”

Bailey, at 292 Ala. 439, 296 So.2d 149. Glover v. City of Mobile, 417 So.2d at 178-179. In addition, there are other reasons to hold that attractive nuisance does not apply in the case before us. The doctrine of attractive nuisance, which offers an exception to the limited liability owed by a landowner to a trespasser, applies only where trespassing children are involved. Tolbert v. Gulsby, supra; Alabama Great Southern Railroad Co. v. Green, 276 Ala. 120, 159 So.2d 823 (1964). In Tolbert, this court noted that Gary Tolbert’s deposition showed that “he was not attracted to Mr. Gulsby’s carport because of the air rifle.” Thus, summary judgment was held to have been properly granted for the defendant as to the attractive nuisance count.

In the case before us, it is equally clear that Joan Massey was not a trespasser attracted to the Wright’s property by the attractiveness of the pool, but was a licensee, at the Wrights’ home as a social guest, and in the swimming pool at their invitation. Thus, in this case, also, summary judgment for the defendants was appropriate as to attractive nuisance.

3.

The third theory argued by the appellant is that the swimming pool, having no warning rope or ladder as a means of egress, is a dangerous instrumentality. Again, Massey relies on Tolbert v. Gulsby, supra, in which this court stated:

This court has previously noted the similarity between Alabama cases using the straight negligence doctrine in relationship to trespassing children and Section 339, Restatement of Torts 2d; however, for clarity and certainty’s sake now and in the future, this court adopts Section 339, Restatement of Torts 2d, as controlling, regardless of whether the children are licensees or trespassers.

Tolbert v. Gulsby, 333 So.2d at 135. Restatement (Second) of Torts § 339 (1965) provides:

A possessor of land is subject to liability for physical harm to children trespassing thereon caused by an artifical condition upon the land if
(a) the place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass, and
(b) the condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children, and
(c) the children because of their youth do not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it, and
(d) the utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, and
(e) the possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children.

We direct attention to the quotation from Glover v. City of Mobile, above, in which this court reaffirmed the long line of Alabama cases holding that water hazards are not dangerous instrumentalities. The appellant maintains that the lack of a deep water rope and ladder brings the Wrights’ pool under the dangerous instrumentality theory. However, we point out that there is no evidence that these alleged defects in any way contributed to Joan Massey’s injury, since all of the testimony of eyewitnesses indicates that Joan jumped into the deepest part of the pool, away from the sides, and made no effort to swim to the side or attempt to gain a handhold of any kind before losing consciousness. Thus, the theoretical danger caused by the absence of the ladder and rope is immaterial to this case, and summary judgment for defendants is appropriate under the dangerous instrumentality theory.

4.

The appellant next attempts to claim that there was a higher duty of care owed by the Wrights than that owed by a landowner to a licensee, by alleging that they had undertaken a duty to supervise Joan Massey. In Standifer v. Pate, a case in which a volunteer babysitter allegedly allowed a small child in her care to pull a pan of hot grease off a counter, burning himself, this court held that a babysitter, by undertaking to supervise, watch, and care for a child, binds himself or herself to the exercise of due care in the execution of those services, independently of the duty arising from a landowner-licensee relationship. The negligent supervision standard was also applied in Walker v. Garris, 368 So.2d 277 (Ala.1979), where the defendant was holding a hayride for a church youth group.

We decline to reach the question of whether the negligent supervision standard extends to a situation where a minor was strictly a social guest in. a defendant’s home. Rather, we simply note that there is no evidence of negligence in Mrs. Wright’s supervision of the children to defeat a motion for summary judgment, were such a standard applied here. All of the children who were present, except Joan, who did not remember the incident at all, reported that Mrs. Wright went to the pool with them and instructed them not to go into the deep water. They stated that Joan then ran to the deep end of the pool and jumped in, against Mrs. Wright’s instruction. We find in this testimony no evidence of negligent supervision.

5.

Massey’s final argument is that the actions of the Wrights amounted to negligence per se, in that they failed to conform to a city ordinance by failing to submit plans for the pool to the building inspector, failing to obtain a building permit, failing to obtain a pre-occupancy inspection, and, on May 23, 1980, by permitting swimmers in deep water which had no ladder. He argues that the failures proximately caused Joan's injuries.

We reject this argument, also. This court has said many times that although it is generally accepted that violation of statutes or ordinances may be negligence, in order to recover, a causal connection must be established between the violation and injury. See Vines v. Plantation Motor Lodge, 336 So.2d 1338 (Ala.1976). See also Fox v. Bartholf, 374 So.2d 294 (Ala.1979); Robbins v. Voight, 280 Ala. 207, 191 So.2d 212 (1966); Winfrey v. Witherspoon’s, Inc., 260 Ala. 371, 71 So.2d 37 (1954). Although Massey argues in his brief that the failure of the Wrights to have a ladder at the deep end of the pool was a proximate cause of the injury, the undisputed testimony of the witnesses to the incident was that Joan jumped out away from the edge of the pool and had made no effort to swim back to a point where she might have reached a ladder, had there been one, before she apparently suffered a seizure and lost consciousness.

For all of the above reasons, the judgment of the trial court must be, and hereby is, affirmed.

AFFIRMED.

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

JONES, J., concurs in the result.