author: KNOLL, Judge.

text:
    Robert LATIOLAIS, Plaintiff-Appellee, v. The HOME INSURANCE CO., et .al., Defendants-Appellants.
    No. 83-829.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 23, 1984.
    Rehearing Denied Sept. 19, 1984.
    Writ Denied Nov. 16, 1984.

      Allen, Gooch, Bourgeois, Breaux & Robi-son, P.C., Frank Flynn, Lafayette, for defendants-appellants.
    Vernon McManus, Eunice, for plaintiff-appellee.
    Before LABORDE, YELVERTON and KNOLL, JJ.
   KNOLL, Judge.

Robert L. Latiolais brought a workmen’s compensation suit seeking total and permanent disability benefits and statutory penalties and attorney’s fees against his employer, Wilson Brothers Drilling Company, and its insurer, Home Insurance Company. The trial court found Latiolais temporarily totally disabled, awarding him benefits from the date of injury continuing during the period of disability, medical expenses, 12% penalties on all compensation benefits due, and an attorney’s fee of $7,500.

The defendants appeal contending the trial court committed manifest error in finding: (1) Latiolais temporarily totally disabled; (2) the defendants arbitrary and capricious in terminating benefits; and, (3) in awarding excessive attorney’s fee. La-tiolais answered the appeal seeking benefits for total and permanent disability and an increase in attorney’s fees. We amend and affirm, finding no abuse of the trial court’s discretion.

The facts are undisputed. On September 17, 1981, Latiolais was working as a floor-hand on a rig in an oil field near Branch. During rigging down, a drill line hung up in the sheave. Latiolais climbed the A-frame structure and reached into the sheave with his gloved right hand. The weight of the block pulled back, catching and lodging his right hand in the sheave for approximately five minutes injuring his long, ring and little fingers. He was immediately taken to Moosa Memorial Hospital where x-rays and examination showed a fracture of the proximal end of the ring finger, circumferential lacerations of the right ring finger and extensor mechanism transection, and a subungual hematoma of the little finger. The treating physician, Dr. Gary Lafleur, closed the lacerations and applied a short arm cast to immobilize the fracture. Latiolais remained hospitalized for two days and was seen on five occasions at Dr. Lafleur’s office. Because of the complexity of Latiolais’s injury, Dr. Lafleur referred him to Dr. L. Lazaro, III, an orthopedist with a specialty in hand surgery.

Dr. Lazaro’s examination revealed that Latiolais had suffered multiple lacerations on the dorsal aspect of the long, ring and little fingers. The ring finger was the most severely involved. The ring finger was fixed at approximately 55-60 degrees of flexion, with only a small piece of soft tissue still attached, the flexor tendons were denuded, and there was also involvement of the extensor mechanism. Dr. Lazaro felt Latiolais’s ring finger needed attention because the finger would always act as a hook. Because Dr. Lazaro opined that Latiolais’s chances were too slim to justify reconstructive surgery on the finger to restore motion, he amputated the ring finger at the PIP (Middle) joint on November 10, 1981.

On November 26, 1981, Latiolais returned to work for Wilson Brothers until he quit on January 14,1982. Shortly after, he worked as an industrial painter for R.T. Nelson Company until May 1982, and then for Bernard & Burke from October to November, 1982. He attempted carpentry work but was laid off because he was unable to hold a hammer.

Wilson Brothers was paying Latiolais $9.45 an hour when he was injured. Home Insurance paid the medical expenses and weekly compensation at the rate of $183 from September 18, 1981, until November 26, 1981, for a total of $1,830.

DISABILITY

The defendants assert that Latiolais’s disability is limited to recovery for the amputation of two joints of his right ring finger. They contend that Latiolais is not disabled because he returned to work as a roughneck for Wilson Brothers on November 26, 1981, and later worked in 1982 as an industrial painter. They emphasize that Dr. Lazaro placed no restrictions on Latio-lais’s activities nor did Latiolais complain of pain to the doctor until he was re-examined on December 16, 1982. To the contrary, Latiolais contends that he is totally and permanently disabled.

A worker who cannot return to gainful employment without suffering substantial pain is entitled to compensation benefits for total disability. Wilson v. Ebasco Services, Inc., 393 So.2d 1248 (La.1981). Total disability, whether permanent or temporary, means the inability to engage in any gainful occupation, whether or not the same or one similar to that in which the employee was customarily engaged when injured. LSA-R.S. 23:1221(1), (2); Schouest v. J. Ray McDermott & Co., Inc., 411 So.2d 1042 (La.1982). A worker is not considered disabled solely because he suffers some residual pain and discomfort when he attempts to work following a work-related accident. The pain or discomfort is considered disabling only if it is substantial or appreciable pain. Miller v. Electrical and Pneumatic Services, Inc., 434 So.2d 602 (La.App. 3rd Cir.1983); Augustine v. Courtney Construction Company of Alexandria, Inc., 405 So.2d 579 (La.App. 3rd Cir.1981), writ denied, 407 So.2d 735. Whether a claimant’s pain is substantial enough to be disabling is a question of fact that must be determined according to the circumstances of each individual case. Augustine, supra.

The worker has the burden of proving his disability to a legal certainty and by a preponderance of the evidence. Augustine, supra; Guidry v. Ford, Bacon & Davis Construction Corp., 376 So.2d 352 (La.App. 3rd Cir.1979). In every case the totality of the evidence, medical and lay, must be examined by the court in making its determination of whether to-grant a disability award. Crawford v. Al Smith Plumbing & Heating Service, Inc., 352 So.2d 669 (La.1977); Tantillo v. Liberty Mutual Insurance Company, 315 So.2d 743 (La.1975).

The criteria to determine whether disability is temporary or permanent is claimant’s condition at the time of trial. Glover v. Southern Pipe & Supply Co., 408 So.2d 352 (La.App. 4th Cir.1981), writ denied, 412 So.2d 86 (La.1982). If an injured worker can show disability under the subsections governing benefits for temporary total disability, permanent total disability or partial disability, the provisions governing benefits for the loss of an' extremity are inapplicable. Conlay v. Houston General Ins. Co., 370 So.2d 196 (La.App. 3rd Cir.1979), writ granted, 371 So.2d 618 (La.1979), dismissed upon settlement, 374 So.2d 650 (La.1979). On appellate review, the trial court’s factual findings with regard to the issue of disability are entitled to great weight, and will not be disturbed absent clear error. Culp v. Belden Corp., 432 So.2d 847 (La. 1983).

In the present case, the trial court considered the medical testimony of Dr. Lazaro, an expert in the field of orthopedic surgery with a specialty in hand surgery and hand treatment, and Errol J. LeBlanc, a licensed physical therapist. Approximately two months after the amputation of Latiolais’s ring finger, Dr. Lazaro estimated that Latiolais would have a 10% impairment to the hand on a permanent basis. On his following visit on February 15,1982, Dr. Lazaro found Latiolais’s hand strength weakened significantly and noted that he had difficulty using the right hand. Dr. Lazaro referred Latiolais to Errol J. Le-Blanc for evaluation. LeBlanc conducted a series of objective tests which results were as follows: his grip strength of the right hand was generally 50% weaker than the left; he was unable to fully flex his right hand especially on objects like a rope and a chain; and he lacked endurance strength and exhibited poor performance when his right hand was used for an extended period ' of exertion. After receiving these results, Dr. Lazaro increased Latiolais’s hand impairment to 30% and discharged him on February 26, 1982, without restrictions.

Latiolais testified he returned to work because of economic reasons and suffered pain when he used his right hand. After he was discharged, it was his understanding that he lost two-thirds of a finger, suffered a permanent right hand impairment, and there was little more that could be done medically to help him. When he was roughnecking, he explained that he was right handed, therefore he was unable to grip the chain with enough strength to bind it to the drill pipe. When he worked as an industrial painter, he had to rely on the assistance of his left hand and co-workers to pull himself up on a boatswain’s chair to the height he was painting (generally 60-300 feet). Co-workers testified that he complained of pain and an inability to use his right hand. They assisted him in carrying the 30 lb. paint cans, in pulling up the boatswain’s chair, and in handling the oilfield chains. Latiolais testified he worked in pain and feared for his safety because he could not grasp the tools he used with any strength.

Dr. Lazaro saw Latiolais again on December 16, 1982, for pain and tenderness in the right hand localized at the base of the ring finger. His examination revealed that Latiolais’s flexor tendon was stuck in scar tissue causing a loss of strength in the hand, as well as an inability to completely flex the long, ring and little fingers. This condition directly correlated to his earlier findings and were consistent with Latio-lais’s complaints of pain. Dr. Lazaro stated that Latiolais’s hand irritation posed a significant problem. At trial, Dr. Lazaro opined that Latiolais was totally disabled from doing vigorous labor, such as roughnecking and industrial painting, and that this condition would remain until surgery was performed, releasing the flexor tendon from the scar tissue. Because Latiolais returned to work for several months for economic reasons and worked in substantial pain, this does not preclude him from being eligible for workmen’s compensation benefits. Dauzat v. Gregory & Cook, Inc., et al; 454 So.2d 807 (La.1984).

Accordingly, we find there is ample evidence to support the trial court’s conclusion that Latiolais worked in substantial pain and that he is temporarily totally disabled. We do not find the record supports Latio-lais’s claim for total and permanent disability-

PENALTIES AND ATTORNEY’S FEES

The trial court further found that the defendants were arbitrary and capricious in withholding workmen’s compensation benefits from Latiolais and awarded a penalty of 12% plus an attorney’s fee of $7,500. The defendants contend that it was error to award attorney’s fees and further that the award was excessive. Latiolais seeks an increase of attorney’s fees for handling the appeal.

A compensation insurer is liable for statutory penalties and attorney’s fees when it is arbitrary and capricious in terminating benefits. LSA-R.S. 22:658. It is incumbent upon insurers to make reasonable efforts to ascertain the worker s exact medical condition at the time benefits are terminated. Wiley v. Southern Casualty Insurance Company, 380 So.2d 214 (La.App. 3rd Cir.1980). A determination of whether the termination of compensation benefits is arbitrary, capricious, or without probable cause depends primarily upon the facts existing and known to the employer or its insurer at the time payments were stopped. Woodard v. Gregory and Cook, Inc., 442 So.2d 912 (La.App. 3rd Cir.1983); Crooks v. Southern Cas. Ins. Co., 337 So.2d 915 (La.App. 3rd Cir.1976). The determination of this issue is essentially a question of fact. Horn v. Vancouver Plywood Company, 322 So.2d 816 (La.App. 3rd Cir.1975).

The defendants relied upon Latiolais's return to work as a basis for the termination of benefits. However, he returned to Wilson Brothers because of economic reasons, not because he was medically discharged. He ultimately quit Wilson Brothers because he could not safely perform his duties and because of pain in his hand. The defendants were continually and thoroughly informed of Latiolais’s medical condition and progress by Dr. Lazaro. The defendants did nothing even after receiving a medical report informing them that Latio-lais had undergone surgery to remove two joints of his right ring finger, which was compensable under LSA-R.S. 23:1221(4)(k).

Defendants argue that Dr. Lazaro’s medical reports, dated January 4,1982, and February 26, 1982, released Latiolais without restrictions. It is well established that compensation benefits may not be terminated on the basis of inconclusive medical reports. The medical reports relied upon by the defendants were issued well after benefits had been terminated and indicated that Latiolais was suffering from a 30% permanent disability of the hand.

We find the defendants blatantly ignored their obligation to Latiolais under the workmen’s compensation provisions. Accordingly, the trial judge was correct in finding the defendants acted arbitrarily and capriciously.

When attorney’s fees are awarded as the result of arbitrary nonpayment of benefits, such an award is deemed to be a penalty and the value of the attorney’s fees need not be proven. Fontenot v. Town of Kinder, 377 So.2d 554 (La.App. 3rd Cir.1979), writ denied, 379 So.2d 1102 (La.1980). In determining the reasonableness of attorney’s fees the trial court has much discretion. Condall v. Avondale Shipyards, Inc., 436 So.2d 595 (La.App. 4th Cir.1983); Moreau v. Houston General Ins. Co., 386 So.2d 151 (La.App. 3rd Cir. 1980); Fontenot, supra. In light of the facts of this particular case, we find no abuse of discretion in the trial court’s award of $7,500.

Latiolais seeks an increase in attorney’s fee to cover his representation on appeal. An increase of attorney’s fees is usually denied when the party seeking the increase has answered the appeal for additional relief which is denied. Woodard, supra. Latiolais successfully defended the appeal of the present case. Although La-tiolais answered the appeal seeking benefits for total and permanent disability which we denied, we find that an additional attorney’s fee in the sum of $500 is warranted.

Finally, after this appeal was lodged, the defendants filed a motion to remand to the trial court for the introduction of further medical evidence, contending that it was unavailable at the time of trial in January of 1983.

The plaintiff instituted this law suit on August 18, 1982. The defendants took the deposition of Latiolais and Dr. Lazaro well in advance of trial. In addition, Dr. Lazaro testified at trial. At no time before trial did the defendants seek a court order to have Latiolais examined by a physician as provided by LSA-R.S. 23:1123. The defendants have not shown that any relevant medical evidence could not have been obtained before trial. Accordingly, the defendants’ motion for a remand of this matter is denied.

We note that the judgment assesses the 12% penalty against all compensation payments due, and that the employer, Wilson Brothers Drilling Company, has been cast for attorneys’s fees with the insurer. LSA-R.S. 22:658 does not authorize either assessment. Basco v. State of La., Dept of Corrections, 335 So.2d 457 (La.App. 1st Cir.1976); Dupuis v. Tiger Oil Intern., Inc., 444 So.2d 1379 (La.App. 3rd Cir.1984). Accordingly, we amend the judgment to assess the 12% penalty only on compensation payments, past or future, which were paid or which might be paid more than sixty days after their due date; and to cast only Home Insurance Company with attorney’s fees.

DECREE

For the foregoing reasons the judgment of the trial court is amended and recast as follows, and, as amended, is affirmed.

IT IS ORDERED, ADJUDGED AND DECREED: (1) that there be judgment in favor of plaintiff, Robert L. Latiolais, and against the defendant, Home Insurance Company, for attorney’s fees in the amount of $7,500 with legal interest from the date of judicial demand; and, (2) that there be judgment in favor of plaintiff, Robert L. Latiolais, and against the defendant, Home Insurance Company, awarding plaintiff 12% on all compensation payments, past and future, which have been paid or might be paid more than sixty days after their due date, together with legal interest from date of judicial demand until paid.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that there be judgment in favor of plaintiff, Robert L. Latiolais, and against the defendant, Home Insurance Company, for additional attorney’s fees in the amount of $500 for defending the appeal.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that except as amended the judgment of the trial court is affirmed. All costs of this appeal are assessed against the defendants, The Home Insurance Company and Wilson Brothers Drilling Company.

AMENDED AND AFFIRMED AS AMENDED.


source: Caselaw Access Project

author: GRISBAUM, Judge. BOWES, Judge,

license: Public Domain

text:
    USTICA ENTERPRISES, INC., d/b/a The Music Box, v. Joseph M. COSTELLO, III, d/b/a Gulf South Broadcasters (WRNO).
    No. 5-401.
    Court of Appeal of Lousiana, Fifth Circuit.
    July 30, 1984.
    George W. Giacobbe, Kenner, for plaintiff-appellant.
    Jones, Walker, Waechter, Poitevent, Carrere & Denegre, Edward D. Wegmann, New Orleans, for defendant-appellee.
    Before BOWES, GAUDIN and GRIS-BAUM, JJ.
   OPINION SUBSEQUENT TO REHEARING

GRISBAUM, Judge.

This court rendered its opinion March 8, 1983, 434 So.2d 137, thereafter, rehearing was granted May 18, 1983, and rehearing occurred January 30, 1984.

For the reasons assigned in the opinion dated March 8, 1983, we affirm the judgment of the trial court.

BOWES, J., dissents and assigns reasons.

BOWES, Judge,

dissenting.

I would reverse the trial court and remand the case for trial on the merits. It is my opinion that plaintiff stated a cause of action in both his allegation of the defendants’ tortious interference with plaintiff’s business, and also in his action for wrongful and excessive seizure. I believe this Court erroneously considered evidence of the exception that was improperly presented at the trial. Our conclusion, that WRNO was protected by the Communications Act of 1934 and the First Amendment, is an affirmative defense which defendant must raise in answer, and must be decided after trial on the merits. Further, whether or not plaintiff first proceeded under C.C.P. Article 2296, to obtain release of the excess items, before filing the present action, is also an evidentiary finding addressable only at trial on the merits. The issue is simply whether the face of the petition presents a case which legally entitles the mover to the redress sought. If a petition states a cause of action on any ground or any portion of demand, the exception of no cause of action must be overruled. Hero Lands Co. v. Texaco, Inc., 310 So.2d 93 (La.1975).

Inasmuch as plaintiff has stated a cause of action on both demands, on the face of both the original and supplemental petitions, this Court should remand the case for further proceedings.

Accordingly, for the foregoing reasons, I respectfully dissent.


text:
    Jackie Lee PARKER v. STATE of Mississippi.
    No. 54193.
    Supreme Court of Mississippi.
    July 18, 1984.
    Robert P. Shepard, Murphy & Shepard, A.M. Murphy, Lucedale, for appellant.
    Bill Allain, Atty. Gen. by Carolyn B. Mills, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C.J., and BOWLING and DAN M. LEE, JJ.
   PATTERSON, Chief Justice, for the Court:

Jackie Lee Parker was convicted of the murder of Randy Tanner and sentenced to life imprisonment by the Circuit Court of George County. Parker appeals and assigns a number of errors believed to have been made by the trial court which require reversal. We are of the opinion we need address only one of such assignments as it is dispositive of the case.

The critical issue before us is whether the lower court erred in refusing to recess the trial late in the afternoon of the second day when the defense attorneys moved for a recess until the following day.

Jackie Lee Parker and Larry Lumpkin drove to the residence of Randy Tanner about 10:00 p.m. on the 17th day of May, 1981. Parker was incensed because Tanner had stolen some marijuana from him in Mobile County, Alabama. After reaching Tanner’s residence, they sounded the horn of their truck and saw someone exit from the rear of the house and approach the truck from the side of the building. Randy Tanner was met by Larry Lumpkin who inquired whether he had any “pot” for sale, to which Tanner replied that he did not. Words were exchanged between the two and Lumpkin knocked Tanner to the ground. Tanner regained his feet and reached for a weapon hidden near the house. He was then engaged by Jackie Parker who knocked Tanner to the ground and took the gun from him. Tanner scrambled to his feet and ran toward the woods to the rear of the house. Parker followed with the shotgun he had taken from Tanner for at least 100 yards and when no more than 20 or 30 feet from Tanner fired three times. According to Parker, he was firing at the horizon above a line of trees some distance ahead of Tanner in order to “scare” him. Parker testified he did not see Tanner fall and believed the victim continued running into the woods. Parker and Lumpkin then left the scene.

Randy Tanner’s brother, James Tanner, heard the shots and with his brother-in-law searched for Randy when he did not respond to their calls. They found him near a trail in the edge of the woods mortally wounded. The sheriff and an ambulance were summoned; however, Tanner died three days later from a buckshot pellet which had entered the back of his head and lodged at the front of his cranium after doing extensive and fatal damage to the brain. It is noteworthy that another pellet entered the left posterior deltoid area and exited on the anterior side. Twenty-two days later Parker turned himself into the custody of the sheriff of George County and was later indicted for murder.

The trial began on Monday, January 25, and continued through the day. The following day trial began at 12:15 p.m., and continued until approximately 5:00 p.m., when the state rested its case in chief. The defendant’s attorneys then moved for a recess until the following morning because they were exhausted from trying a lunacy proceeding, at the request of another judge, as well as this case in the same day, thereby necessarily being engaged in trial since 9:00 a.m. that morning. It was also urged that the defendant was exhausted and should not be subjected to direct and cross-examination at such a late hour. This motion was overruled; subsequently, the defense motion for a directed verdict and a mistrial was overruled and the defense began its case in chief.

The defense renewed its motion for a recess at 5:50 p.m. The defense attorneys stated they would call an expert witness who would take about one hour for both sides to conduct their examinations. Additionally they were aware, as was the court, that once they rested there was the possibility of rebuttal witnesses being called as well as time required for presenting instructions and summations to the jury. The trial court again denied the motion for a recess, whereupon the defendant took the stand, and the trial continued.

A defense motion for a recess was renewed at 8:21 p.m., and was once again denied. Finally, at 10:30 p.m., after ruling on the jury instructions, the court recessed until the following day, when final arguments were to be made before the case was submitted to the jury for its verdict.

In oral argument before this Court, defense counsel contended the trial court did not grant a recess for dinner. Believing this statement to have been inadvertent we have reviewed the record on this point and can neither corroborate nor disprove it. We do find a request for a dinner break was made with the following response:

BY MR. SHEPARD: Your Honor, will there be a break for dinner?
BY THE COURT: Yes, sir.
BY MR. SHEPARD: Could we take it now?
BY THE COURT: The jury has been locked up in that room for about an hour. I think it is better to get them out of that room for a while. We will take a break later. Bring them out.

The matter was not mentioned further, but in either event, we are of the opinion it was basically unfair for the trial court to force the defendant to offer his testimony and that of his witnesses to the jury after a fatiguing day in court and at a time when both counsel and the jury were exhausted.

In Edge v. State, 393 So.2d 1337 (Miss. 1981), a case in which the conduct of the trial court bears a striking resemblance to this case, we stated:

Ordinarily, trial judges have broad discretion in determining when trials will begin and how long they will continue on any given day. However, participating in the trial of a case as an attorney is both mentally and physically exhausting. Trial courts should keep this in mind and not require attorneys, over their objections, to continue beyond their limits. Nor should the court begin a case when there is not sufficient time, for any reason, to conclude it without pushing the attorneys beyond their physical capabilities. To do so deprives a defendant in a criminal case of his right to effective assistance of counsel....
393 So.2d at 1342.

See also Thornton v. State, 369 So.2d 505 (Miss.1979), to the same effect.

The Sixth Amendment to the Constitution of the United States and Section 26 of the Mississippi Constitution guarantee a defendant in a criminal case the right to the assistance of counsel. In order to give this right full force and intended effect it has been repeatedly interpreted as the right to “effective counsel.” McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970); Reece v. Georgia, 350 U.S. 85, 76 S.Ct. 167, 100 L.Ed. 77 (1955); Stewart v. State, 229 So.2d 53 (Miss.1969). Whether counsel is rendered ineffective through incompetence or exhaustion makes no difference in applying this constitutional standard.

While the evidence for the state is great, we nevertheless are of the opinion that due process of law necessitates a forum for the defendant to present his case within reasonable hours and under reasonable circumstances. Such was not afforded this defendant.

REVERSED AND REMANDED.

WALKER, and ROY NOBLE LEE, P.JJ., and BOWLING, HAWKINS, DAN LEE, PRATHER, ROBERTSON and SULLIVAN, JJ., concur.


text:
    In re The ESTATE OF Sophia PHILLIPS. Mae H. BROWN v. Darryl PUCKETT, Executor.
    No. 55044
    Supreme Court of Mississippi.
    Aug. 15, 1984.
    Larry Stamps, Jackson, for appellant.
    Merrida P. Coxwell, Jr., Jackson, for ap-pellee.
   Appeal from Chancery Court, Hinds County; Paul G. Alexander, Chancellor.

Before WALKER, P.J., and BOWLING and HAWKINS, JJ.

AFFIRMED.


author: PRATHER, Justice, for the Court.

text:
    MISSISSIPPI STATE PERSONNEL BOARD, et al. v. Jim Wiley ARMSTRONG.
    No. 54341.
    Supreme Court of Mississippi.
    Aug. 15, 1984.
    Rehearing Denied Sept. 12, 1984.

      Bill Allain, Atty. Gen., Hubbard T. Saunders, IV, Crosthwait, Terney, Noble & Eastland, Jackson, for appellants.
    Alvin M. Binder, William B. Kirksey, Binder, Kirksey & DeLaughter, Weaver E. Gore, Jr., Jackson, for appellee.
    Before BOWLING, DAN M. LEE, PRATHER and SUGG, JJ.

      . Sitting pursuant to Mississippi Code Annotated section 9-3-6 (Supp.1983).

   PRATHER, Justice, for the Court.

This is an appeal from a judgment of the Circuit Court, Hinds County, Honorable Charles Barber, presiding, which reversed and vacated an opinion and order of Stephen R. Miller, Chief Hearing Officer of the Employee Appeals Board, a sub-agency of the Mississippi State Personnel Board. The circuit court heard the petition for writ of certiorari of Jim Wiley Armstrong, a discharged parole officer of the Department of Correction, on the question of the legality of a hearing before a single hearing officer of the Employee Appeals Board. Armstrong contended that as a matter of law he was entitled to a hearing before the entire three member Employee Appeals Board. We reverse.

Although several errors are assigned by the appellant here, the Mississippi State Personnel Board, this Court only addresses the dispositive issue of whether the circuit court lacked jurisdiction because Armstrong failed to file an appeal bond.

I.

On June 9, 1981, Jim Wiley Armstrong was served with a pre-termination notice by the commissioner of the Mississippi Department of Corrections. The commissioner charged Armstrong with filing a reimbursement form for mileage expenses that Armstrong had not in fact incurred. Armstrong submitted a written response explaining that the inclusion of the mileage on his application for reimbursement was accidental. On July 15, 1981, Armstrong received notice that his employment was terminated.

Armstrong filed a formal notice of appeal to the Mississippi Employee Appeals Board pursuant to Miss.Code Ann. § 25-9-131 (Supp.1981). A de novo hearing was held before Hearing Officer Steve Miller on Aug. 27, 1981. Miller affirmed Armstrong’s termination by order dated September 18, 1981.

On October 15, 1981, Armstrong filed a petition for writ of certiorari and mandamus with the Circuit Court of Hinds County. Armstrong joined as respondents to the petition the Mississippi Department of Corrections and Morris L. Thigpen, Commissioner of the Mississippi Department of Corrections. Armstrong’s petition asserted that Hearing Officer Miller’s decision was unauthorized by law because Miss.Code Ann. § 25-9-129 (Supp.1981) required that the Employee Appeals Board consist of three hearing officers. Armstrong also alleged that the hearing officer’s decision was unsupported by substantial evidence.

Respondents Mississippi Department of Corrections and Morris L. Thigpen filed a general demurrer to Armstrong’s petition on Nov. 13, 1981. On Dec. 22, 1981, the circuit court sustained the general demurrer on the ground that the Department of Corrections and its commissioner were not proper parties to the action. The circuit court granted Armstrong leave to amend the petition within thirty days so as to designate necessary and proper respondents.

On January 25,1982, Armstrong filed his amended petition joining as respondents the Mississippi State Personnel Board (hereinafter the Board), its individual members, and Steve Miller, as hearing officer.

On March 3, 1982, the circuit court issued a writ of certiorari to the Employee Appeals Board. The Mississippi State Personnel Board filed its answer including, inter alia, a request to dismiss the writ for failure of the petitioner to file a bond within six months after judgment of the hearing officer. Thereafter, on March 24,1982, Armstrong filed an appeal bond pursuant to Miss.Code Ann. § 11-51-93 and § 11-51-95 (1972). On April 9, 1982, the Board filed a motion to strike appeal bond and a motion to dismiss or quash the writ of certiorari based upon Armstrong's failure to file an appeal bond within the six month time period prescribed by Miss.Code Ann. § 11-51-93 (1972). On June 8, 1982, the circuit court granted both motions. On the same day Armstrong filed a motion for reconsideration of the court’s judgment. On July 20, 1982, the circuit court granted Armstrong’s motion for reconsideration. In its judgment, the circuit court found that (1) it had jurisdiction to hear the motion for reconsideration in the July term of court though the motion was filed in the June term of court; and (2) that by issuing a writ of certiorari without bond having been posted, the circuit court waived the necessity of the cost bond.

Following a hearing on the merits, the circuit court, by judgment of September 24, 1982, found that the hearing before the single hearing officer of the Employee Appeals Board was unauthorized as a matter of law. MCA § 25-9-129.. Accordingly, the court reversed and vacated the Sept. 18, 1981 decision of Stephen Miller affirming Armstrong’s dismissal and remanded the case to the Employee Appeal’s Board for a de novo hearing before the full Employee Appeal’s Board consisting of three hearing officers.

The board now contends that Armstrong’s failure to file an appeal bond within six months of the Appeals Board decision deprived the circuit court of jurisdiction. The question raised here is whether the circuit court erred in holding that timely filing of the appeal bond was waived?

The appellate procedure from decisions of the Employee Appeals Board at the time of this suit was controlled by the following statutes:

11-51-93 Certiorari proceedings in circuit court.

All cases decided by a justice of the peace, whether exercising general or special jurisdiction, may, within six months thereafter, on good cause shown by petition, supported by affidavit, be removed to the circuit court of the county, by writ of certiorari, which shall operate as a supersedeas, the party, in all eases, giving bond, with security, to be approved by the judge or clerk of the circuit court, as in cases of appeal from justices of the peace; ...
11-51-95 Certiorari to all other inferi- or" tribunals.
Like proceedings as provided in section 11-51-93 may be had to review the judgments of all tribunals inferior to the circuit court, whether an appeal be provided by law from the judgment sought to be reviewed or not.
11-51-53 Bond to be given to perfect an appeal.
Except as herein otherwise provided, an appeal shall not be considered as perfected, or a supersedeas awarded thereon, unless the bond required shall have been given and approved.

This Court has repeatedly held that statutory bond requirements are jurisdictional. Phillips Construction Co. Inc. v. Miss. State Highway Comm., 420 So.2d 1374 (Miss.1982) (supersedeas bond required in appeals to the circuit court from arbitration board determinations under sections 65-2-15 is jurisdictional prerequisite); Allgood v. Allgood, 367 So.2d 450 (Miss.1979). (Failure to prepay cost of appeal required by 11-51-25 and 11-51-29 is jurisdictional defect requiring dismissal); Kennedy v. Gervais, 345 So.2d 1039 (Miss.1977) (failure to file appeal bond within 45 day period prescribed by 11-51-5 deprives Supreme Court of jurisdiction and requires dismissal); Fisher v. Crowe, 289 So.2d 921 (Miss.1974) (same); See generally 50 Miss. L.J. 719, 731-732 (1979).

Nonetheless, this Court has recognized that a failure to meet the statutory requirements may be excused by extenuating circumstances. See Moran v. Necaise, 437 So.2d 1222 (Miss.1983) (where payment was not made until later than 45 days from the date of judgment but was made in good faith, motion to dismiss appeal overruled); Allgood v. Allgood, 367 So.2d 450 (Miss.1979) (where cost not prepaid within 45 day limit but statute was new and appellant made good faith effort to timely perfect appeal, motion to dismiss overruled).

This Court, however, finds no extenuating circumstances in this case to excuse the statutory requirement. Neither do we find authority for the circuit court’s waiver of the statutory requirement of a bond. We conclude that circuit court’s first order dismissing the petition for lack of jurisdiction was proper, and that his reversal of that decision was in derogation of the statute and erroneous.

This case is controlled by Phillips, supra, which held a bond to be a jurisdictional requirement. Phillips was a direct appeal case, and this case is an appeal by way of writ of certiorari. However, both reviews are governed by statutory methods of appeal procedure, and jurisdiction for review is conferred by compliance with the rules.

In Phillips, supra, this Court stated:

As stated, we hold that the required supersedeas bond is jurisdictional, and the appeal is not perfected until the bond is approved by the circuit judge and filed. See Hutchinson v. Ferrell, 160 So.2d 903, 248 Miss. 700 (1964); Shirley v. Stevens, 114 So.2d 661, 237 Miss. 254 (1959).

Following the Phillips decision, we conclude that the circuit court was in error in granting the writ of certiorari without the appellee’s filing of a bond. The failure of the appellee to file the appeal bond within the statutory period defeats the jurisdiction of the circuit court to act. For this ■reason, we address no other assignment of error.

We reverse the circuit court judgment and reinstate the order of the Employee Appeals Board hearing officer, Stephen R. Miller of September 18, 1981.

REVERSED AND RENDERED.

WALKER, P.J., and BOWLING, HAWKINS, DAN M. LEE, ROBERTSON and SULLIVAN, JJ., concur.

PATTERSON, C.J., and ROY NOBLE LEE, P.J., not participating.

      . In 1982, § 25-9-129 was amended to provide that "hearings before the Employee Appeals Board may be conducted by an individual hearing officer or by the Board en banc, as provided in State Personnel Board Rules." Miss.Code Ann. § 25-9-129 (Supp.1982).

      . Appellate procedure from the Employee Appeals Board effective from and after May 10, 1984 is as follows:
      25-9-132. Any employee aggrieved by a final decision of the Employee Appeals Board shall be entitled to judicial review thereof in the manner provided in this section.
      (1) An appeal may be taken by such employee to the circuit court of the principal county of the employee’s employment or the Circuit Court of the First Judicial District of Hinds County, by filing a petition with the clerk of such court and executing and filing bond payable to the State of Mississippi with sufficient sureties to be approved by the clerk of the court, in the penalty of Five Hundred Dollars ($500.00) conditioned upon the payment of all costs of appeal, including the cost of preparing the transcript of the hearing before the Employee Appeals Board. The petition and bond shall be filed within thirty (30) days of the receipt of the final decision of the Employee Appeals Board. Upon approval of the bond, the clerk of the court shall notify the Employee Appeals Board, which shall prepare its record in the matter and transmit it to the circuit court.


text:
    John E. HOLMES v. STATE of Mississippi.
    No. 55074.
    Supreme Court of Mississippi.
    Aug. 22, 1984.
    Firnist J. Alexander, Jr., Jackson, for appellant.
    Bill Allain, Atty. Gen. by Anita Mathews Stamps, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Adams County; Edwin E. Benoist, Judge.

Before WALKER, P.J., and BOWLING and HAWKINS, JJ.

AFFIRMED.


text:
    Mary Elizabeth SASSER v. Leslie Wayne SASSER.
    No. 55072.
    Supreme Court of Mississippi.
    Aug. 29, 1984.
    Richard E. Stratton, III, Brookhaven, for appellant.
    Ralph L. Peeples, Hobbs, Hobbs & Pee-ples, Brookhaven, for appellee.
   Appeal from Chancery Court, Lincoln County; Mike Carr, Chancellor.

Before WALKER, P.J. and BOWLING and HAWKINS, JJ., and SUGG, Retired Supreme Court Justice.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

ROY NOBLE LEE, P.J., and DAN M. LEE, PRATHER, ROBERTSON and SULLIVAN, JJ., concur.

PATTERSON, C.J., not participating.


text:
    James Walton STUBBS v. Deborah Leigh STUBBS.
    No. 55373.
    Supreme Court of Mississippi.
    Aug. 29, 1984.
    Rehearing Denied Sept. 26, 1984.
    Ross R. Barnett, Jr., Barnett, Montgomery, McClintock & Cunningham, Jackson, for appellant.
    F. Kent Stribling, Jackson, for appellee.
   Appeal from Chancery Court, Hinds County; Paul G. Alexander, Chancellor.

Before ROY NOBLE LEE, P.J., and PRATHER and SULLIVAN, JJ.

AFFIRMED.

WALKER, P.J. and BOWLING, HAWKINS and ROBERTSON, JJ., concur.

PATTERSON, C.J., and DAN M. LEE, J., not participating.


text:
    James I. LOWRY, et al. v. Joseph R. DOSS, et al.
    No. 54386.
    Supreme Court of Mississippi.
    Aug. 29, 1984.
    F. M. Bush, Jr., W. Scott Collins, Mitchell, McNutt, Bush, Lagrone & Sams, Tupe-lo, for appellants.
    L. G. Fant, Jr., Holly Springs, for appel-lees.
   Appeal from Chancery Court, Chickasaw County; W. W. Brand, Jr., Chancellor.

Before BOWLING, DAN M. LEE and PRATHER, JJ.

Affirmed.

HAWKINS, J., not participating.


text:
    CHAPMAN COMPANY, INC. v. James C. ENGLISH.
    No. 55041.
    Supreme Court of Mississippi.
    Sept. 5, 1984.
    Harry P. Sneed, Jr., Wittmann & Sneed, Gulfport, for appellant.
    Harold J. DeMetz, Gulfport, for appellee.
   Appeal from Chancery Court, Harrison County; John S. Morris, Chancellor.

Before BOWLING, DAN M. LEE and PRATHER, JJ., and SUGG, Retired Supreme Court Justice.

REVERSED AND REMANDED.

WALKER and ROY NOBLE LEE, P.JJ., and HAWKINS, ROBERTSON and SULLIVAN, JJ., concur.

PATTERSON, C.J., not participating.


text:
    Lindberg POINTER v. Alice Lee Ellis POINTER.
    No. 55323.
    Supreme Court of Mississippi.
    Sept. 5, 1984.
    Willie L. Rose, McComb, for appellant.
    Calvin R. King, Durant, for appellee.
   Appeal from Chancery Court, Holmes County; Ray H. Montgomery, Chancellor.

Before BOWLING, HAWKINS and SULLIVAN, JJ.

AFFIRMED.


text:
    Robert HANNAH, Jr. and Walter Coleman, Jr. v. STATE of Mississippi.
    No. 55064.
    Supreme Court of Mississippi.
    Sept. 5, 1984.
    Edward C. Fenwick, John E. Shaw, Kosciusko, for appellants.
    Bill Allain, Atty. Gen. by Billy L. Gore, Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Attala County; Clarence E. Morgan, Jr., Judge.

Before WALKER, P.J., and HAWKINS and PRATHER, JJ.

AFFIRMED.

ROY NOBLE LEE, P.J., and BOWLING, DAN M. LEE, ROBERTSON and SULLIVAN, JJ., concur.

PATTERSON, C.J., not participating.


author: MADDOX, Justice. JONES, Justice

text:
    Delbert W. HYDE, William P. Lee & Raymond J. Sims v. Robert WAGES.
    83-163.
    Supreme Court of Alabama.
    June 1, 1984.
    Rehearing Denied July 20, 1984.

      Robert G. Tate and F.A. Flowers III of Thomas, Taliaferro, Forman, Burr & Murray, Birmingham, for appellants.
    W. Lee Pittman, David Laning, and Kathryn Sumrall of Emond & Vines, Birmingham, for appellee.
   MADDOX, Justice.

The dispositive issue on appeal is whether the trial court erred to reversal by allowing plaintiff to introduce into evidence plaintiff’s Exhibit No. 11, and accompanying testimony, concerning modifications and safety procedures made by the defendant following plaintiff/employee’s injury, and plaintiff’s Exhibit No. 16, and testimony concerning the exhibit, which dealt with accidents at other companies which occurred after the date of the accident made the basis of this action. Because we conclude that the trial court erred by admitting Exhibit No. 11 and Exhibit No. 16, we reverse and remand this cause for a new trial. Consequently, we find it unnecessary to discuss the other issue raised on this appeal, i.e., whether plaintiff’s action in releasing the defendant Vulcan Iron Works, Inc. also released any and all claims he had or might have had against these defendants.

On May 27, 1975, Robert Wages, plaintiff-appellee, was injured while working at the Universal Atlas Cement Company in Leeds, Alabama. He was injured while repairing brick inside a rotary cement kiln, that was approximately 300 feet long and 10 feet in diameter.

In manufacturing cement, slurry, a liquid material, is fed into the kiln, which is slightly tilted and rotates clockwise to facilitate the slurry’s flow. As the slurry goes through the kiln, it is heated to a temperature of 2600 degrees Fahrenheit and changes to a dry product. During this process, a portion of the slurry sticks to the walls of the kiln, acting as insulation to prevent the heat from burning holes, or “hot spots,” in the kiln walls. The slurry that sticks to the inside walls of the kiln is referred to as “coating.” When it becomes necessary to repair the brick underneath, the coating is “barred” down. This is done by workers who use long iron bars that enable them to remove the coating without standing under the loose coating that could fall on them.

The appellee was injured during the barring process, when a piece of coating fell on him and injured his back. As a result of the injury, the appellee commenced a personal injury action, naming as defendants the Fuller Company, Michael F. McCarthy, who was plant manager, Kenneth L. Farmer, who was superintendent of operations at the plant, Delbert W. Hyde, who was in charge of plant safety, William P. Lee, who was superintendent of plant operations, Raymond J. Sims, who was in charge of transportation and yard foreman at the plant, and several unnamed fictitious parties. The trial court subsequently dismissed the Fuller Company as a party because it had not manufactured, sold, or installed the kiln. But, appellee amended his complaint to substitute Vulcan Iron Works, Inc., for the fictitious entity “who or which manufactured the rotary cement kiln.” .

Following the trial, the jury returned a verdict in favor of appellee in the amount of $225,000, and against Hyde, Lee, and Sims. (Michael McCarthy was never served with a copy of the complaint and was dismissed by the trial court the day of the trial.) The jury found in favor of Farmer and against appellee.

The trial court entered a judgment against Hyde, Lee, and Sims-in the amount of $207,500, plus costs ($17,500 having been deducted from the amount of the jury’s verdict because of a pretrial settlement paid by Vulcan Iron Works to appel-lee). Judgment was also entered by the trial court in favor of Farmer, against ap-pellee.

Hyde, Lee, and Sims filed a motion for J.N.O.V., or in the alternative, for a new trial. That motion was denied by the trial court, and this appeal followed.

Appellee, while recognizing that “[t]he general rule is that evidence of repairs or alterations made or precautions taken by defendant after injury to plaintiff in an accident is not admissible to show the defendant's antecedent negligence,” nevertheless, asserts that the admission into evidence of his Exhibit No. 11 was justified under the circumstances because the appellants raised the issue of the cement company’s subsequent accident record in their opening statement. Exhibit No. 11 was the “Job Safety Analysis” for removing coating in the kiln, which was revised three months after the accident. The opening remarks of appellants’ counsel included the following:

“Now, May, 1975, Mr. Raymond Sims was the foreman in the yard and transportation department out at Universal Atlas. In years past, Mr. Sims, too, has torn out coating and brick in the kiln when he was a laborer. It’s always been done the same way, and the only disabling accident or disabling injury or lost time injury was Mr. Wages’ injury. ” (Emphasis added.)

Appellee contends:

“The statement by defendants’ counsel clearly had the effect of improperly influencing the jury and leading them to believe that there had been no other accidents without clarifying one obvious explanation as to why there had been no other accidents, i.e. there had been changes in safety procedures.”

At the time Exhibit No. 11 was offered, the following occurred:

“MR. PITTMAN: You better mark this (indicating).
“Whereupon, document was marked Plaintiff’s Exhibit No.'ll for identification.)
“Q. Let me show you a document that has been marked for identification as Plaintiff’s Exhibit No. 11. What is— “MR. TATE: Can I look at it?
“MR. PITTMAN: Yes, sir.
“THE COURT: What’s the problem? What’s your theory?
“MR. PITTMAN: We have got several. One is, is that the one that was in existence at the time of the accident, just a few months before the accident, did not have this section (indicating) in there.
“So, I think since they say it was in effect but not written, we have the right to show that they ought to make the changes, number one.
“Number two, in opening statement they made the statement that there hadn’t been any accidents, they have been talking about forever and ever, and that may be the reason.
“I don’t know.
“MR. LANNING: A response to their statement, in their opening statement, they said they never had any other accidents in this kiln.
“THE COURT: It tells how horrible they are?
“MR. LANNING: Right here (indicating), Judge, it says to keep a safe distance from the coating while the coating is being barred down.
“That’s the first time they ever put that in there, was after the accident; and they’ve said in their opening statement that there had not been any other accidents out there other than Robert’s.
“We have a right to put this (indicating) into evidence to show that that’s one of the reasons why they haven’t had any other accidents out there.
“MR. TATE: That doesn’t make any sense. We put that in there after.
“MR. LANNING: Sure it does. Ya’ll said there hadn’t been no other accident out there before or since.
“MR. TATE: I want to make an objection to that exhibit; that it is subsequent to the accident; it does not fall within the exceptions of the rule.
“It is not being introduced to show the control of the premises; not shown to be introduced to show the conditions of the place at the time of the accident; certainly not introduced at this time to impeach the witness, or as part of the res gestae. “THE COURT: Overruled.
“MR. FLOWERS: We except.
“THE COURT: You have an exception.”

A portion of Delbert Hyde’s testimony concerning that revision of the 1951 “Job Safety Analysis” after appellee’s injury in 1975 appears in the record as follows:

“Q. Mr. Hyde, before we left, I handed you a new Plaintiff’s Exhibit, No. 11, and asked you if you could identify that.
“Could you tell us what that is?
“A. Yes. That’s a job safety analysis.
“Q. Is that a similar document to the one we just looked at that was in effect starting in 1951 going up through the time of the accident, similar type thing, just a little bit different form?
“A. Yes.
“Q. Okay. What is the date on that one (indicating)?
“A. August 12, 1975.
“Q. About 3 months after Robert Wages’ accident, which was May the 27th, 1975?
“A. Well, May the 27th, 1975 to August 12th, 1975; that’s the difference in the dates.
“Q. Now, what job does that concern itself with?
“A. Removing coating from kiln.
“Q. Is that basically a job analysis that concerns itself with the same type operation as stated in Plaintiff’s Exhibit No. 2, which was the 1951 document, concerning the same type of work?
“A. Yes, as you said in the beginning, it’s similar.
“MR. PITTMAN: We would offer Plaintiff’s Exhibit No. 11 at this time.
“Q. So, following this accident, you updated the ’51 job safety analysis?
“A. Yes.
“Q. Now, in the new one, in August of 1975, did it talk about barring down this coating?
“A. Yes.
“Q. What did it say about barring down the coating in the August ’75 edition of the Safety Analysis, Job Analysis?
“A. Well, it simply says, “Bar down coating. Start with bars. If unable to remove with bars, use clay spade with 4 foot bar.’
“And the hazards involved there, are struck by stuff or there is a hazard of slip, tripping and falling, caught between, and so forth.
“Q. Okay. Now, what does it say in the August 12th, 1975 one, opposite bar down coating?
“A. It says, ‘Keep safe distance from coating being barred down. Watch footing. Keep hands and body clear of pinchpoints. Stay clear of coating.’
“A. Okay. Now, in fact, it says, ‘Top half of coating is barred down ahead of workers. Keep safe distance from coating being barred down. Watch footing. Keep hands and body clear of pinch-points. Stay clear of coating.’
“And on this one (indicating), it just talks about, ‘Wear hardhat, goggles and good shoes’; is that right?
“A. Well, let me see if we’re talking about the same thing.
“Q. The 1951 one says, ‘Wear hardhat, goggles and good shoes.’
“A. That’s right.”

Appellee contends that appellants’ opening statement opened the door to evidence of subsequent safety measures, and thus, without Exhibit No. 11, the jury could have been misled as to the reason why there had been no subsequent accidents involving barred down coating at the cement plant.

The general rule in Alabama is that evidence of repairs or alterations made or safety precautions taken by the defendant after plaintiff’s injury in an accident is not admissible as tending to show the defendant’s antecedent negligence. See, e.g., Lapeyrouse Grain Corp. v. Tallant, 439 So.2d 105, 111 (Ala.1983); Burbic Contracting Co. v. Cement Asbestos Products Co., 409 So.2d 1, 3 (Ala.1982); Alabama Great Southern R. Co. v. Ensley Transfer & Supply Co., 211 Ala. 298, 100 So. 342 (1924); Collins v. Mobile & O.R. Co., 210 Ala. 234, 97 So. 631 (1923); Going v. Alabama Steel & Wire Co., 141 Ala. 537, 37 So. 784 (1904). The rationale for this rule is that evidence of subsequent repairs and safety precautions is immaterial and irrelevant on the issue of defendant’s antecedent negligence and that, as a matter of public policy, subsequent repairs and safety precautions are to be encouraged in order to prevent future accidents. Indeed, if such improvements or precautions could be introduced against the person making them as proof of his prior negligence, he would be discouraged from improving the place or thing that caused the injury. See Burbic Contracting Co. v. Cement Asbestos Products Co., supra; Burnwell Coal Co. v. Setzer, 191 Ala. 398, 67 So. 604 (1914); Davis v. Kornman, 141 Ala. 479, 37 So. 789 (1904). See generally Annot., 64 A.L.R.2d 1296, 1303 (1969).

There are, however, certain exceptions to the general rule. In the recent case of Banner Welders, Inc. v. Knighton, 425 So.2d 441 (Ala.1982), this Court stated as follows:

“... Generally, evidence of subsequent repairs is not admissible to establish negligence, although it may be admissible to show identity of ownership, to show control of the locus, to contradict or impeach a witness, or to lessen the weight of an expert witness. Another permissible use may occur where such evidence is offered to establish a condition existing at the time of the accident.” (Citations omitted.)

425 So.2d at 444-45. See also Leeth v. Roberts, 295 Ala. 27, 322 So.2d 679 (1975); Norwood Clinic, Inc. v. Spann, 240 Ala. 427, 199 So. 840 (1941). See generally, C. Gamble, McElroy’s Alabama Evidence § 189.02 (3d ed. 1977).

In the case at bar, appellee did not offer evidence of subsequent safety precautions under any of the exceptions set forth in Knighton. The record plainly indicates that there was no dispute that Universal Atlas owned the premises where the kiln was located and that the appellants had control over the operation and maintenance of the kiln. The record also shows that the appellee was not attempting to impeach or contradict the testimony of Delbert Hyde or lessen the weight of any expert witness’s testimony, since appellants did not call any expert witnesses to the witness stand. Finally, the revised “Safety Job Analysis” could not have been offered to establish a condition existing at the time of the accident, since it was undisputed that the kiln contained coating before and after appellee’s injury.

Although appellee does not contend that the evidence was admissible under one of the exceptions, he maintains that the portion of appellants’ opening statement quoted above raised the issue of the cement plant’s subsequent accident record, we cannot interpret that portion of the opening statement as referring to accidents both prior to and after appellee’s injury.

Consequently, we conclude that the admission into evidence of Exhibit No. 11 and Delbert Hyde’s testimony on cross-examination dealing with subsequent safety precautions taken by the employer following appellee’s accident “had no tendency to show negligence on the part of defendants” and should have been excluded, Hertz v. Advertiser Co., 201 Ala. 416, 419, 78 So. 794, 797 (1918). We especially find it was highly prejudicial to appellants in this case, as evidenced by the closing argument to the jury made by counsel for appellee:

“There was a job analysis in effect at the time [of the accident] for the last 23 years that had not been changed, since 1951, the job analysis for going into that kiln had not been changed. It said nothing about look out for the coating, it may fall on you ....
“Three months after the accident, they come out with a new one, and it talked about taking out the coating, top half of coating is barred down ahead of workers. Keep safe distance from coating being barred down.
“Not great detail, but it warns of the hazard. So, they knew of the hazard.
“What do you do when you know of the hazard, you eliminate it or minimize it. [Emphasis added].”

During trial, the court also admitted into evidence, over defendants’ objections, plaintiff’s Exhibit No. 16, and testimony concerning that exhibit, which dealt with eight accidents at other companies which occurred after the date of the accident made the basis of this suit. In admitting this exhibit and testimony, the trial court erred to reversal.

In this case, plaintiff attempted to show that the defendants had knowledge of accidents similar to plaintiff’s accident. While evidence of similar accidents to prove that the defendant knew of the danger, or in the exercise of reasonable care should have learned of it, is, under certain circumstances, admissible, “the other happening must have occurred before the injury sued for.” McCormick, Evidence § 200, p. 475 (2d Ed. 1972).

Stated differently, “Evidence of other accidents or injuries occurring subsequent to the one in question is not admissible on the issue of knowledge” of the defendant at the time of the accident made the basis of the lawsuit. 65A C.J.S., Negligence § 234(6) (1960).

In Birmingham Baptist Hospital v. Blackwell, 221 Ala. 225, 128 So. 389 (1930) (quoting Karr v. State, 106 Ala. 1, 17 So. 328), this Court stated:

“ ‘It is a cardinal rule in the law of evidence that facts and circumstances which, if proved, are incapable of affording a just, reasonable inference or presumption in relation to a material fact involved in the issue on which the jury is to pass, are irrelevant and inadmissible. Testimony, to be admissible, must relate to and be connected with the transaction it is intended to elucidate, and the connection with it must not be remote, or a forced, strained, or mere conjectural conclusion. It must have a reasonable tendency to prove or disprove a material fact in issue.’
II * * *
“... [Irrelevant evidence ... may tend to distract the attention of the jury and frequently to prejudice and mislead them. [This] language is most pertinent here.”

221 Ala. at 227, 128 So. 389.

We conclude that plaintiff’s Exhibit No. 16, which contained evidence of accidents which occurred at other cement companies after the date of the accident made the basis of this suit, was inadmissible, and was prejudicial. The judgment entered on the jury verdict, therefore, is due to be reversed on this additional ground.

Accordingly, the verdict and judgment entered thereon must be reversed and this cause remanded for a new trial.

REVERSED AND REMANDED.

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

JONES, J., concurs in the result.

JONES, Justice

(concurring in the result).

I concur in the result. I agree with that part of the opinion reversing the judgment on the erroneous admission into evidence of Plaintiffs Exhibit 16. I disagree, however, with the Court’s holding as to Plaintiffs Exhibit 11. Apparently, the trial court overruled Defendants’ objection to Exhibit 11 not on the basis of any of the recognized exceptions to the general rule prohibiting proof of subsequent repairs or procedures, but because the Defendants’ counsel had made relevancy an issue by his opening statement. In this, I think the trial judge was correct. As to the remaining issues raised by Appellants, and not addressed in the opinion, I find no error.


author: JONES, Justice.

text:
    Bonnie HEARN v. SOUTHERN LIFE & HEALTH INSURANCE CO.
    83-535.
    Supreme Court of Alabama.
    June 1, 1984.
    Rehearing Denied July 20, 1984.
    Michael F. Terry of Doggett & Terry, Florence, for appellant.
    J. Michael Tanner of Almon, McAlister, Ashe & Baccus, Tuscumbia, for appellee.
   JONES, Justice.

Plaintiff/Appellant Bonnie Hearn appeals, following a directed verdict for the Defendant/Appellee Southern Life & Health Insurance Company in a suit alleging nonpayment of benefits on three “accident” insurance policies. We reverse.

On the evening of June 26, 1981, William H. Hearn, the Plaintiffs son, was driving a pickup truck in Waterloo, Alabama, when he became involved in a high-speed chase with a police officer. After pursuing Hearn for about eight miles, at speeds between 70 and 80 miles per hour on the straight sections of the road, the officer discontinued the chase. Shortly thereafter, beyond the sight of the pursuing officer, Hearn’s truck left the road and crashed into a gulley. Hearn, while attempting to escape through a jammed door, died of smoke inhalation in a fire that engulfed his wrecked vehicle. A blood sample taken from Hearn’s body by the coroner indicated a blood alcohol content of .11 percent.

Defendant/insurer refused to pay accidental death benefits under three policies, each of which was in force and effect on the date of the insured’s death. At the close of the evidence, the trial court ruled, as a matter of law, that the cause of death was not “accidental” as defined by the respective policies. One of these policies, a “Non-Participating Travel Accident Policy,” insuring William Hearn and naming Bonnie Hearn as beneficiary, provides in pertinent part:

“1 BENEFIT FOR DEATH FROM TRAVEL ACCIDENT INJURY — Upon receipt of due proof that the Insured, while this policy is in full force and effect, has sustained a travel accident injury, as defined below, which results within 90 days of its occurrence in the death of the Insured, the Company will pay the Principal Sum to the beneficiary named in the Schedule.
“3 MEANING OF TRAVEL ACCIDENT INJURY — Death or losses for which payment will be made must directly and independently of all other causes result from accidental bodily injury, visible on the exterior of the body or disclosed by autopsy, which is sustained (1) while driving or riding on a public highway in an automobile, bus or truck .... “4 EXCLUSIONS — This policy does not cover death resulting from bodily or mental infirmity, illness or disease or treatment therefor; nor does it cover death or loss of limbs or eyesight resulting directly or indirectly from (1) intentionally self-inflicted injury, while sane or insane .... ”

This Court, in O’Bar v. Southern Life & Health Insurance Company, 232 Ala. 459, 168 So. 580 (1936), promulgated the legal test, under the facts there presented, for determining whether a death is accidental. In O’Bar, the insured made a deadly unprovoked attack on another man in the victim’s home, shooting at him with a pistol and then beating him. The victim ultimately was able to pull his knife and cut the insured in the chest, causing his death. The Court stated the applicable rule:

“[Wjhen insured is the aggressor, especially with a deadly weapon, and makes such an attack on another as would naturally invite a deadly encounter in resistance of his attack, and as the probable consequence of it, and he is killed by the other while so resisting him, it cannot be regarded as an accidental death, since he voluntarily put his life at stake and deliberately took the chances of getting killed.”
“To constitute an accidental death, it must have resulted from something unforeseen, unexpected, and unusual ... or ‘which happens as by chance, or which does not take place according to the usual course of things,’ or ‘without foresight or expectations’ or ‘by reason of some violence, casualty, or vis major to the assured, without his design or consent or voluntary cooperation.’ ” (Citations omitted.) (Emphasis supplied.) 232 Ala. at 462, 168 So. at 582.

O’Bar was cited with approval in Provident Life and Accident Insurance Company v. Hanna, 294 Ala. 37, 311 So.2d 294 (1975). The insured in Provident Life was killed when his wife shot him repeatedly with a pistol after she was accosted by him. Although reaching the opposite result from that reached in O’Bar, the Provident Life Court said:

“[W]e cannot say as a matter of law that the death was not accidental. There was evidence to support a finding that Mrs. Hanna killed her husband in self-defense, or that the gun went off accidentally, or that she intended to kill him. The issue of whether the death was accidental must be determined according to the accepted view ‘that an accident is an occurrence that is not to be expected or anticipated in the light of common experience and of the existing circumstances, ’ and such determination is made from the standpoint of the insured.” 294 Ala. at 41, 311 So.2d 297 (emphasis added).

The Court distinguished O’Bar on its facts. While in O’Bar the evidence was not susceptible of contrary inferences, the evidence in Provident Life gave rise to conflicting inferences of fact. In O’Bar, the Court said:

“We agree with the trial court that the only interpretation of this evidence is that insured brought about a condition from which his death was not to be unforeseen or unexpected nor an unusual result of it. He put his life at stake heedless of the consequences which should have been anticipated (Emphasis supplied.) 232 Ala. at 462, 168 So. at 582-83.

Under facts similar to those in O’Bar, the Alabama Court of Civil Appeals reached the same result in Insurance Company of North America v. Southern, 52 Ala.App. 357, 292 So.2d 476 (1974). On the other hand, the Provident Life Court determined that there was sufficient evidence to support the finding made by the trial court that the death was accidental.

The Provident Life Court also relied upon Aetna Life Insurance Company v. Beasley, 272 Ala. 153, 130 So.2d 178 (1961), where the Court refused to hold that, as a matter of law, the shooting of a father by his son, after the father threatened the boy and his mother with bodily harm, was not accidental. The Beasley Court, affirming the judgment of the trial court, said:

“We cannot say as a matter of law that the husband, although intoxicated and belligerent, intended to kill his wife and son, or that the natural and probable consequence of his actions was that his son, who had never physically resisted or reacted to his father’s threats and abuses toward his mother, would turn upon his father and kill him when he again threatened and assaulted his wife.” 272 Ala. at 157, 130 So.2d at 182.

The preceding cases are helpful by analogy only, because they deal, factually, with an assault by the insured which results in his death. Neither Mrs. Hearn nor the insurance company cites any Alabama authority dealing with the precise issue here presented, nor do we find any. We do find, however, helpful language in several of our cases. Beasley reasoned that a death may be caused by accidental means, even where that means is voluntarily rendered, if, in the precipitating act, something unforeseen, unusual, or unexpected occurs to produce the resultant injury.

Hanna v. Riggs, 333 So.2d 563 (Ala.1976), explained the “reasonable man” standard when applying the “foreseeability” test in the context of death by accidental means. Foreseeability of death resulting from the insured’s voluntary actions must be tested from the subjective viewpoint of the insured himself. Indeed, this subjective foreseeability test is also suggested in Black’s Law Dictionary, 5th ed. (1979), when it defines “accident” as an “event which under the circumstances is unusual and unexpected by the person to whom it happens. ” (Emphasis added.) See, also, Provident Life & Accident Insurance Co. v. Hanna, 294 Ala. 37, 311 So.2d 294 (1975).

Through excellent briefs, both sides cite authority from other jurisdictions tending to support their respective contentions.

In Metropolitan Life Insurance Company v. Henkel, 234 F.2d 69 (4th Cir.1956), the court affirmed the judgment of the trial court, sitting without a jury, which ordered the insurance company to pay under a double indemnity provision, finding that the insured’s death was ' caused by accidental means within the meaning of the policy. The insured was “fleeing in an automobile from officers of the law at a reckless and unlawful rate of speed of 90 miles an hour or more.” There was no evidence that he had violated the law or had been guilty of any unlawful conduct prior to his flight. After he encountered a fork in the road, which he failed to negotiate, his vehicle flipped over, causing the injuries from which he died.

In Dooley v. Metropolitan Life Insurance Company, 250 A.2d 168, 104 N.J.Super. 429 (1969), the insured failed to negotiate a curve, causing the car which he was driving to run off the road and strike a pole. As a result, the insured suffered serious injuries which resulted in his death. The Dooley court said:

“The crash, which was the proximate cause of the injuries and death, resulted from failure to negotiate a curve in the road, which was an unexpected, unforeseen and unusual event constituting accidental means_ Furthermore, for insurance contract purposes, an insured is not deemed to intend all the probable or foreseeable consequences of his conduct, and recovery is only precluded where there is a reasonable basis for his belief that his conduct makes serious injury or death a virtual certainty.” 250 A.2d at 170.

Similarly, O’Toole v. New York Life Insurance Co., 671 F.2d 913 (5th Cir.1982), affirmed the trial court’s finding that the insured’s death, following a self-administered injection of cocaine, was “accidental.” The policy in question excluded death by suicide, but death resulting from self-administered drugs was not explicitly excepted. The lower court found, and the appellate court agreed, “that although [the insured] intentionally injected himself with cocaine, he did not intend to cause nor did he anticipate that this injection would cause his death.”

Reaching the same result, the Illinois Appellate Court, in Rodgers v. Reserve Life Insurance Co., 8 Ill.App.2d 542, 132 N.E.2d 692 (1956), reasoned that, even where one voluntarily exposes himself to unnecessary danger, he may still die by accidental means if his death is the result of a miscalculation of speed, distance, or his own driving capabilities.

We agree with the analysis as posited by these courts. Although it may have been negligent for William to drive his car in the manner in which he did, and although he intended to drive the vehicle at excessive speeds, the insurer accepts the risks of such negligent and intentional acts, excluding coverage only for intentional injury and suicide.

Here, as in Aetna and Provident Life, we cannot say, as a matter of law, that William’s death did not occur as the result of an accident. The jury, as fact-finder, was free to reject, as a conclusion of fact, the theory that William intended to die from smoke inhalation while pinned in his car. Furthermore, we are influenced by the fact that none of the policies contained a provision excluding from coverage an accident or death occurring “while speeding in an automobile,” “while violating the law,” etc. The insurance company was free to make such an exclusion and evidently chose not to do so.

Because the evidence supports an inference of fact that death was an accident, we hold that the trial court erred in directing a verdict for the Defendant. The judgment of the trial court, therefore, is due to be, and it hereby is, reversed; and this cause is remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

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

      . While the exact wording of the three policies differs one from the other, for the purposes of this case the language in contention is essentially the same; therefore, the analysis applicable to one policy is applicable to all.

      . One might speculate, in jest, that a snake bite, or a kick by a mule, is accidental or not depending on whether it is tested from the point of view of the perpetrator or the victim. For a case applying the subjective standard to a policy of insurance excluding coverage for injury neither “expected nor intended from the standpoint of the insured,” see Alabama Farm Bureau Mut. Cas. Ins. Co. v. Dyer, 454 So.2d 921 (Ala.1984).


author: ALMON, Justice.

text:
    STATE FARM FIRE AND CASUALTY COMPANY, INC., and Steve Templeton v. Ronald R. FINCHER.
    No. 82-603.
    Supreme Court of Alabama.
    June 8, 1984.
    Rehearing Denied Aug. 24, 1984.
    Ralph D. Gaines, Jr., of Gaines, Cleckler & Goodrich, Talladega, for appellants.
    Betty C. Love, Talladega, and Charles L. Parks, Anniston, for appellee.
   ALMON, Justice.

This is a fraud case. The holder of a homeowner’s insurance policy sued the insurance company and its adjuster for breach of contract and fraud. The jury awarded $100,000.00 for fraud. The trial court entered judgment on the verdict and denied defendants’ post-trial motions. Defendants appeal.

Defendants raise five issues, but we find that those relating to pleading fraud with particularity are determinative of the appeal. Those issues relate to defendants’ motion to dismiss the complaint and their motion for directed verdict at the close of plaintiff’s evidence.

Ronald R. Fincher filed the following complaint on February 5, 1982, in the Circuit Court of Calhoun County, naming as defendants State Farm Fire and Casualty Company, Inc., Steve Templeton, Jim McCain, and fictitious parties:

’’COUNT ONE

“1. On or about, to-wit: April 18, 1980, in consideration of the premiums provided therein, defendant, State Farm Fire and Casualty Company, Inc., issued to plaintiff its policy of homeowners insurance, Policy No. 01-043145-8. This policy provides benefits to the loss payee arising out of loss or damage to the insured property by fire.

“2. On or about October 2, 1981, plaintiffs home was destroyed by fire. Benefits for said loss were provided for in the policy of insurance described heretofore.

“3. Since October 2, 1981, the defendant, State Farm Fire and Casualty Company, Inc., has refused to pay the full benefits due to the plaintiff under the terms of the contract.

“4. Plaintiff has performed all the conditions of the policy to be performed on his part.

“5. Under the terms of the policy, the defendant, State Farm Fire and Casualty Company, Inc., was liable to the plaintiff for the sums of $42,000.00 due to loss of the plaintiffs property as heretofore described, and $12,600.00 due to loss of use of plaintiff's property as set out in the contract of insurance. Additionally, as a result of the defendant’s failure to fully perform its obligations under the said contract of insurance, plaintiff has been caused to suffer severe anxiety and mental and emotional distress.

“WHEREFORE, plaintiff demands judgment against the defendant in the amount of Five Million and no/100 ($5,000,000.00) Dollars, interest, costs of court, and attorney’s fees.

’’COUNT TWO

“1. On or about, to-wit: April 18, 1980, the defendant, State Farm Fire and Casualty Company, Inc., by and through its agent, servant, or employee, was negotiating with the plaintiff concerning the purchase by the plaintiff of the policy of insurance providing benefits to the plaintiff should the plaintiff’s property become damaged by fire.

“2. On or about April 18, 1980, the defendant, State Farm Fire and Casualty Company, Inc., by and through its agent, servant or employee, represented to the plaintiff that if the plaintiff would sign plaintiff’s name to an application and pay a sum of money to said defendant that plaintiff’s property would become insured by defendant, State Farm Fire and Casualty Company, Inc., against losses which the plaintiff might suffer if the plaintiff’s property became damaged by fire, and that the plaintiff would thereby receive certain benefits in the event the plaintiffs property became damaged by fire.

“3. The representations made by the defendant were false and defendant knew they were false; or the defendant recklessly misrepresented the facts, without true knowledge thereof; or defendant misrepresented the facts by mistake, but did so with the intention that plaintiff should rely upon them.

“4. Plaintiff believed the representations and in reliance upon them, signed said application and paid money to the defendant.

“5. Plaintiff became aware of defendants’ misrepresentation within one year pri- or to the filing of this complaint when the defendants failed to perform said representations upon the loss of plaintiff’s house by fire.

“WHEREFORE, plaintiff demands judgment against the defendant for compensatory and punitive damages in the amount of Five Million and no/100 ($5,000,000.00) [sic], and in addition thereto claims interest, costs of court, and attorney’s fees.

“COUNT THREE

“1. Plaintiff realleges paragraph 1 of Count Two.

“2. Defendant, State Farm Fire and Casualty Company, Inc., made written and oral promises to plaintiff to pay plaintiff for losses he might suffer should his home be damaged or destroyed by fire.

“3. The aforementioned defendants [sic] made said promises for the purpose of inducing plaintiff to rely upon said promises and to act in reliance upon them. The said defendants [sic] did not intend to perform said promises to plaintiff and made said promises with the intent to defraud plaintiff. Plaintiff was unaware of defendants’ [sic] intention not to perform and justifiably relied upon the promises made and paid premiums to the defendants [sic].”

“4. Plaintiff first became aware of the defendants’ [sic] intention not to perform said promises within one year prior to the filing of this complaint when the defendants [sic] failed to perform said promises upon the loss of plaintiff’s house by fire.

“WHEREFORE, plaintiff demands judgment against the defendant for compensatory and punitive damages in the amount of Five Million and no/100 ($5,000,000.00) [sic], and in addition thereto claims interest, costs of court, and attorney’s fees.

“COUNT FOUR

“1. Plaintiff realleges Paragraph 1 of Count One.

“2. Each of the defendants in this suit have breached their duty of fair dealing and good faith owed to the plaintiff in the following respects:

“(a) Refusing to pay any benefits to plaintiff at a time when defendants knew plaintiff was entitled to said benefits under the provisions of said contract of insurance which has heretofore been described.

“(b) Wilfully and in bad faith, withholding payments from plaintiff knowing plaintiffs claim for the full benefits due under said contract of insurance to be valid.

“(c) By.intentionally failing to determine whether plaintiff’s claim for the full benefits due under the contract of insurance was valid.

“(d) By other acts or omissions of defendants.

“3. As a proximate result of the aforementioned wrongful conduct of defendants, plaintiff has suffered damages under the terms of the insurance policy for loss of his dwelling, personal property, and loss of use of his dwelling since October 2, 1981, to be shown at the time of trial. Moreover, plaintiff has suffered anxiety, worry, mental and emotional distress and other incidental damages.

“4. Defendants have acted toward plaintiff with a conscious disregard of plaintiff's rights, or with the intent to vex, injure, or annoy plaintiff, such as to constitute oppression, fraud, or malice thereby entitling plaintiff to punitive damages.

“5. As a proximate consequence of said acts or omissions, the plaintiff has been caused to suffer by being deprived of the benefits entitled him under the policy, by anxiety, worry, and mental and emotional distress.

“WHEREFORE, plaintiff demands judgment against defendants for compensatory and punitive damages in the amount of Five Million and no/100 ($5,000,000.00) Dollars, and in addition thereto, claims interest, costs of court, and attorney’s fees.

“COUNT FIVE

“1. Plaintiff realleges each and every Paragraph of Count One.

“2. Plaintiff alleges a fiduciary relationship arose between the plaintiff and the defendants in this complaint when the defendants issued the aforesaid insurance policy and accepted premiums from the plaintiff. This fiduciary relationship has existed at all relevant times herein.

“3. The plaintiff, relying upon the existence of said fiduciary relationship, paid premiums to defendants for the purpose of inducing security for plaintiff and his family in the event the [sic] his property should be damaged or destroyed by fire.

“4. That defendants, and each of them, have breached their fiduciary duty to plaintiff by the acts or omissions as set forth in Paragraph 2 of Count Four.

“5. As a proximate consequence of said acts or omissions, the plaintiff has been caused to suffer by being deprived of the use of the insured property, and by being caused to suffer anxiety, worry, and mental and emotional distress, and other incidental damages.

“WHEREFORE, plaintiff demands judgment against defendants for compensatory and punitive damages in the amount of Five Million and no/100 ($5,000,000.00) Dollars, and in addition thereto, claims interest, costs of court, and attorney’s fees.

“COUNT SIX

“1. On or about April 18, 1980, the defendant, State Farm Fire and Casualty Company, Inc., by and through its agents, servants, or employees, while under a duty to disclose to the plaintiff all conditions and limitations of the policy of insurance, was negotiating with the plaintiff concerning the purchase, by the plaintiff, of a policy of insurance providing benefits to the plaintiff should the plaintiffs property be damaged or destroyed by fire.

“2. On or about April 18, 1980, the defendant, State Farm Fire and Casualty Company Inc., by and through its agents, servants, or employees, fraudulently concealed from the plaintiff the following information, to-wit:

“(a) That upon a total loss of plaintiff’s property by fire, the defendant, State Farm Fire and Casualty Company, Inc., would not pay the full face value of the insurance policy.

“3. Plaintiff unaware of the information fraudulently suppressed or concealed as heretofore described and acting in the belief that said information did not exist, signed the application for insurance and paid money to the defendant.

“4. Plaintiff became aware of the information fraudulently suppressed or concealed within one year prior to the filing of this complaint at a point and time subsequent to the plaintiff’s house being damaged or destroyed by fire on or about October 2, 1981.

“WHEREFORE, plaintiff demands judgment against defendants for compensatory and punitive damages in the amount of Five Million and no/100 ($5,000,000.00) Dollars, and in addition thereto, claims interest, costs of court, and attorney’s fees.”

On March 8, 1982, Defendants filed a motion to dismiss for failure to state a claim or “because the complaint is vague and indefinite and does not sufficiently apprise defendants as to what defendants are called upon to defend against.” The court did not initially rule on this motion, and the parties proceeded with discovery.

A pre-trial conference was scheduled for October 5, 1982. The record does not reflect whether this conference was held, but defendants filed an amended motion to dismiss on October 4, separate motions for summary judgment on October 5, and an answer on October 26. On November 1, 1982, defendants filed a motion to add First Federal Savings and Loan Association of Sylacauga, holder of a mortgage on the insured property, as a party plaintiff in count one of the complaint.

The amended motion to dismiss included fourteen specific attacks on various portions of the complaint. Two of these paragraphs are noteworthy:

“6. To dismiss Count Two as to individual defendants Steve Templeton and Jim McCain on the grounds that both these individual defendants are in the Claims Department, neither of these defendants had any contact with plaintiff in connection with the application for insurance and made no promises nor representations to plaintiff in connection with the application or issuance of the insurance policy referred to. Said Count Two does not identify either individual defendant herein as the agent, servant or employee referred to in Count Two and therefore does not state a cause of action against either of these individual defendants.
“14. To dismiss the complaint on the grounds that it seeks inconsistent remedies in that plaintiff alleges fraud in the inception of the contract and in the same action seeks to recover for breach of that contract. Plaintiff cannot have both remedies but must make an election and defendants move that the Court require plaintiffs to make an election.”

Trial began on November 3, 1982. The case action summary sheet includes the following entry bearing that date:

“Upon consideration of defendants’ amended motion to dismiss & motion for summary judgment, Ordered that Counts IV & V are hereby struck. Upon consideration of motion by defendants, Ordered that First Federal Savings & Loan Association of Sylacauga be & is hereby added as party plaintiff to Count I only. Jury struck for trial of this case.”

Thus, the case went to trial on the count for breach of contract, on counts two and three for fraud in the inception, and on count six for fraudulent concealment by the selling agent. It will be noted that none of these counts alleged frauds by Templeton during adjustment of the claim. Count four, the bad faith claim, did allege that defendants withheld “payments from plaintiff knowing plaintiff’s claim for the full benefits due under said contract of insurance to be valid,” and acted toward plaintiff “with the intent to vex, injure, or annoy plaintiff, such as to constitute oppression, fraud, or malice .... ” This count, however, was dismissed before the trial, so the case went to trial with no allegations of misrepresentations made after the fire.

Furthermore, the above-quoted paragraphs of the amended motion to dismiss indicate that defendants viewed the fraud counts of the complaint as alleging only fraud in the inception. Defendants, for all that appears from the record, were wholly unprepared to defend against any claims for fraud during the adjustment of the claim.

At the close of plaintiffs evidence, plaintiffs counsel made the following oral motion to amend:

“We would request permission to orally amend our complaint previously filed in this case, and under the fraud count to specifically allege three specific frauds that were perpetrated on the Plaintiffs. The first being that Doug Camp being at that time and place an agent of State Farm Fire and Casualty Company, represented to Ronald Fincher at the time the policy was sold, and at all times material thereafter, that State Farm in the event of a fire would pay the face amount of that policy as damages without any mention of depreciation.
“We allege, number two, that Steve Templeton at said time and place being the agent of State Farm Fire and Casualty Company represented to Ronald Fincher that in order to recover the entire amount of forty-two thousand under that policy, that he had to build the identical house in the identical location, and that if he even moved it back off its foundations a short space that it would not pay the face amount of forty-two thousand.
“We allege as fraud number three, that Steve Templeton being at said time and place the agent of State Farm represented to the Finchers that they should not incur any further' motel bills or restaurant expenses, that State Farm Fire Insurance Company would not pay them any further bills even if they were incurred. From that point forward on December 15th, any bills they incurred would have to be paid by themselves, which said time and place was a misrepresentation of the contents of the policy.
“We respectfully suggest that as under the item of deceit, that at a time and place when the representative Steve Templeton being at said time and place the agent of State Farm knew that the policy of State Farm Fire and Casualty Company, as per the testimony of Jim McCain, was that you could purchase another house in another area of town or that you could build another house on a different location represented to the Finchers that that was not the case, but that they had to build the identical house in the identical location. And although he knew this to be the policy of State Farm, he failed to impart that to the Finchers at a time and a place when he was under a duty to do so.”

Defendants objected to the request for permission to amend:

“Judge, of course, we oppose any amendment at this time. First, on the grounds that the rules provide that allegations of fraud in the original complaint are supposed to be with specificity, and I think the courts have said repeatedly that particularly in this kind of action, that the Defendants are entitled to know even before you start to trial, much less halfway through it, or maybe more than halfway, what the allegations of fraud are. Here they are coming in here at this late hour and saying that they want to amend. And for the first time, really at this time, being very specific about the thing.”

This objection was well taken. Rule 9(b), A.R.Civ.P., requires that “[i]n all aver-ments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity.”

This Court has cited with approval the following committee comment to Rule 9(b):

“The pleading must show time, place and the contents or substance of the false representations, the fact misrepresented, and an identification of what has been obtained.”

See Miller v. Mobile County Board of Health, 409 So.2d 420 (Ala.1981); Robinson v. Allstate Insurance Co., 399 So.2d 288 (Ala.1981); Winn-Dixie Montgomery, Inc. v. Henderson, 371 So.2d 899 (Ala. 1979). In Robinson the Court noted with disapproval the failure to identify the agent of Allstate who made the alleged misrepresentation.

The fraud counts in the original complaint were barely sufficient to withstand State Farm’s motion to dismiss. The original complaint stated no claim against Tem-pleton and McCain, at least without counts four and five, which did not go to trial. Nor did it state a claim for fraud against State Farm relating to the period after the fire.

It is true that Rule 15(b), A.R.Civ.P., allows amendments to conform to the evidence “[w]hen issues not raised by the pleadings are tried by express or implied consent of the parties.” State Farm certainly did not try the post-fire fraud issues by express consent, and the record does not indicate implied consent, either. The evidence regarding Templeton’s efforts to settle the claim was properly admissible under the breach of contract claim. Without knowing that Fincher intended to seek recovery in fraud for these negotiations, defendants had no cause to object to the evidence on these matters.

After the court allowed the amendment to the complaint, plaintiffs rested. Defendants made motions for directed verdicts. The court granted directed verdicts for Templeton and McCain on the breach of contract count, because they were not parties to the contract and had nothing to do with negotiating it. The court also granted a directed verdict for McCain on the fraud claims, because the evidence showed he had no contacts with Fincher and the court found no evidence that he had committed any fraud against him. The court denied State Farm’s motion for directed verdict, Templeton’s motion for directed verdict on the fraud claims, and State Farm’s motion for the court to require plaintiff to elect between the claims for fraud and breach of contract. After these motions, defendants rested.

The jury retired with three verdict forms: one in favor of Ronald Fincher and First Federal Savings and Loan of Sylacauga against State Farm for breach of contract, one for Ronald Fincher against State Farm and Templeton for fraud, and one for State Farm and Templeton. The jury rendered a verdict for fraud in the amount of $100,000. The trial court entered judgment on the verdict and denied defendants’ motion for judgment notwithstanding the verdict or, in the alternative, for new trial.

The prejudicial effect of allowing the amendment is readily apparent. Plaintiff recovered a substantial verdict against two defendants premised largely on claims as to which the defendants had no notice until plaintiff had put all of his evidence before the jury. Defendants objected strenously to plaintiffs request for an amendment to inject the new theories of fraud. Especially when viewed in light of the rule that fraud must be pleaded with particularity, the action of the court in allowing the amendment was error.

The judgment of the trial court is reversed and the cause is remanded.

REVERSED AND REMANDED.

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