author: BEATTY, Justice.

text:
    The FEDERAL LAND BANK OF NEW ORLEANS v. Glenn E. JONES, et al. Glenn E. JONES, et al. v. The FEDERAL LAND BANK OF NEW ORLEANS.
    82-60, 82-65.
    Supreme Court of Alabama.
    April 6, 1984.
    Rehearing Denied Aug. 24, 1984.

      J. Garrison Thompson of Pitts, Pitts & Thompson, Selma, for appellant/cross-ap-pellee.
    John E. Pilcher of Pilcher & Pilcher, Selma, for Glenn E. Jones and Lynne L. Jones.
    Charles H. Sims, III and Cartledge W. Blackwell, Jr., Selma, for Rawls Machine and Supply Co., Inc.
    Archie T. Reeves, Jr. of Reeves & Stewart, Selma, for Henry Brick Co., Inc.
    James B. McNeill, Jr. of Bryant, Edwards, McNeill & Poole, Selma, for J.M. Brown, individually and t/d/b/a Johnny Brown Plumbing Co.
    William J. Gamble of Gamble, Gamble & Caíame, Selma, for Don Tillery and James M. Tillery, Jr., individually and trading and doing business as Tillery House of Carpets.
   BEATTY, Justice.

This is an appeal by Federal Land Bank of New Orleans (Bank) and a cross-appeal by Glenn E. and Lynn L. Jones (the Jones-es) from judgments entered against them in favor of multiple claimants. The actions arose from a loan made by the Bank to the Joneses and the Land Bank Association of Selma (Association) for long-term financing to cover the construction costs of a new residence. The construction contract provided for three monetary disbursements to the original contractor, Webb A. Hargrove d/b/a Azalea Construction Company (Har-grove or Azalea), upon certain stages of completion of the residence.

The Association made two disbursements to Hargrove, and he failed to pay the subcontractors and materialmen who were working on and supplying materials for the Jones residence. Consequently, a subcontractor, Central Alabama Sheet Metal Company (Central), commenced an action in the district court asserting claims against Glenn Jones on open account and for work and labor done. The action proceeded to judgment, and Jones appealed to the circuit court. Tillery House of Carpets (Tillery), another subcontractor, also commenced an action against Glenn Jones in the district court to enforce a materialmen’s lien upon the Joneses’ home and sought money damages for work and labor done.

Subsequently, the Bank instituted an in-terpleader action in the circuit court, naming the following defendants: the Joneses, Central, Tillery, Hargrove, Rawls Machine and Supply Company (Rawls), Johnny Brown Plumbing Company (Brown), Henry Brick Company, Inc. (Henry), Dallas Concrete Pipe Company, Inc., Johnny Lee Gilmore, Warrior Concrete Company, and Prince Electric Company.

Brown, Rawls, and Henry filed cross-claims against the Joneses. The Tillery action and the appeal from the judgment in the Central action were later consolidated with the Bank’s interpleader action, and Central and Tillery cross-claimed against the Joneses.

The Bank sought to interplead into court the sum of $6,078.50, which remained un-disbursed under the construction loan to the Joneses. The complaint requested the court to determine how the money should be disbursed between the Joneses and the other defendants who were materialmen and subcontractors.

The Joneses answered and counterclaimed against the Bank, alleging, among other things, the following:

“15. Plaintiff assumed the obligations of a Trustee with respect to the supervision of the construction and disbursement of the loan proceeds. Plaintiff also assumed the obligation to use reasonable and ordinary care in the supervision of the work and the disbursement of the loan proceeds. Plaintiff breached those duties owed by it to Jones [the Joneses], and by reason thereof and as the proximate result and consequence thereof Jones has suffered loss and damages as follows: They were required to expend considerable sums to complete the house; they have been subjected to litigation and claims for unpaid bills and materials; their title to said real estate has been impaired by the liens and claims filed against it by the Defendants herein; they have incurred substantial expenses for attorneys fees and other costs in the completion of the property, and the defense of the claims and litigation against them; they were required to pay $6,255.00 to Klinner to complete the work; they were required to pay $2,400.00 to complete the fireplace; they suffered loss and damages of $1,500.00 by reason of the failure to install the sink and two windows as aforesaid, and the further sum of $2,000.00 by reason of the failure to build the house according to the required inside and outside measurements; they suffered mental anguish; they were required to pay monthly rentals for a substantial period of time, during which time they were also required to pay interest to Plaintiff on the full amount of the original construction loan; they have been required to pay Plaintiff interest on the full amount of the construction loan, although they were deprived by Plaintiff of the use of $12,333.50 for a substantial period of time; and they were required by Plaintiff to pay interest on funds which have been retained by or under the control of Plaintiff.
“16. Plaintiff has also abused the process of this Court by filing this Inter-pleader action, and by naming and joining therein those Defendants who did not have or assert any lien or claim against the real estate of Jones or any unpaid balance due by Jones to Azalea. Plaintiff took such action to protect its own interest, because of claims asserted directly against Plaintiff by Henry and certain other of the Defendants herein. Plaintiff is not a mere stakeholder with respect to those funds, but is instead a direct party in interest and seeks to use Jones’ funds to pay or protect against claims asserted by the Defendants herein directly against Plaintiff. Such action by Plaintiff is wrongful and tortious, and constitutes an abuse of the processes of this court, and by reason thereof Jones have been damaged in the manner and as averred in the preceeding Paragraph 15.”

The Joneses also cross-claimed against Till-ery, Brown, Rawls, Central, and Henry and asked for a declaratory judgment, declaring:

“a. That Jones [the Joneses] is not indebted to any of the Defendants herein.
“b. That Jones has paid or is entitled to credits in the total sum of $44,721.50 under [their] original contract with Azalea or Hargrove; that Azalea and Har-grove are obligated to refund said overpayment to Jones; and that Jones has no funds in their possession or under their control due to Hargrove and Azalea under said construction contract.
“c. That none of the Defendants herein have any right, claim, or interest in or to any of the proceeds on deposit with this Court, and that all of said deposits, including interest thereon, is the property of Jones and should be disbursed directly to Jones.
“d. That Plaintiff assumed the obligations of a Trustee to Jones with respect to the supervision of the construction and the disbursements of the loan proceeds; that Plaintiff breached said duties; that Jones was damaged as herein averred; and that Jones is entitled to a judgment against Plaintiff in the sum of $50,000.00, actual and punitive damages, and costs.
“e. That Plaintiff owed a duty to Jones to use reasonable care and diligence in supervising the construction and in disbursing the loan proceeds; that Plaintiff breached said duties; that Jones was damaged as herein averred; and that Jones is entitled to a judgment against Plaintiff in the sum of $50,-000.00, actual and punitive damages, and costs.
“f. That Plaintiff has abused the processes of this Court by filing this Inter-pleader proceeding; that Plaintiff is not a' mere stakeholder, but is a direct party in interest and has attempted to use funds belonging to Jones in order to pay, satisfy, or delay claims asserted directly against Plaintiff by Henry and other creditors herein; that by reason of such tortious conduct Plaintiff is obligated to Jones in the amount of $50,000.00, actual and punitive damages, and costs.”

During the trial, the Joneses amended their counterclaim against the Bank to allege that the Bank wantonly controlled and disbursed the loan proceeds, misrepresented to the Joneses that the Bank would pay materialmen and subcontractors, required the Joneses to execute false lien waivers, and committed the tort of outrageous conduct which resulted in additional damages to the Joneses’ reputation, and caused humiliation, mental anguish, emotional pain, and stress.

The Bank in its answer denied the allegation of abuse of process and filed a motion to dismiss the counterclaim, based upon the absence of a fiduciary relationship and the absence of a duty owed to the Joneses. The trial court overruled the motion. In addition, the Bank’s answer to the Joneses’ counterclaim affirmatively set up the defense of statute of limitations, and by amendment affirmatively pleaded contributory negligence by the Joneses and estop-pel on the abuse of process claim.

Rawls also counterclaimed against the Bank, averring that the Bank had guaranteed payment for all building materials furnished by Rawls on the Jones job. Rawls initially sought damages in the amount of $11,509.22, but he later amended the counterclaim, alleging false representations by the Bank and claiming punitive damages for $100,000.00.

Brown filed a counterclaim on similar grounds, seeking judgment for $1,208.68. He later amended the counterclaim to ask for $5,000.00 punitive damages for alleged false representations.

Henry counterclaimed for $1,393.25 on open account for brick sold to the Bank. Henry, Rawls, Tillery, and Central filed a joint amended counterclaim against the Bank seeking attorney’s fees.

The Bank moved to dismiss all counterclaims and that motion was overruled by the trial court. The Bank’s answer denied all allegations of the counterclaims and affirmatively pleaded the defenses of Statute of Frauds, statute of limitations, and contributory negligence.

Evidence was presented before the circuit court without a jury. The court announced its decision from the bench April 23, 1982, and final judgment was filed July 2, 1982. The judgment was amended on July 25, 1982.

The following judgments were rendered against the Bank:

I.(1) Henry Brick $ 8,083.83
(2) Brown 7,803.22
(3) Rawls 82,275.23
(4) The Joneses 238,509.06
II.The Bank was required to account to the Joneses for interest improperly charged on the $6,078.50 paid into court and to pay the Joneses the $6,078.50.
III.The Bank was also required to pay attorney’s fees out of the funds paid into court as follows:
(1) Tillery $ 2,275.00
(2) Central Bank 1,375.00
(3) The Joneses 2,428.00

The trial court denied the Bank’s post trial motions and the Bank appealed October 7, 1982.

The following judgments were entered against the Joneses in favor of:

(1) Tillery 2,021.60
(2) Brown 1,302.61
(3) Central 655.60
(4) Rawls 12,775.23
(5) Henry Brick 1,583.83

On October 21, the Joneses filed their notice of appeal.

A number of issues are presented by the Bank’s appeal; however, in view of our conclusion that the issue of agency is the controlling one, we need not reach other issues posed by the Bank’s appeal. That controlling issue is whether or not the trial court could have found that the officers of the Association were the agents of the Bank and that, accordingly, their actions bound the Bank. In that connection, the Joneses alleged in their counterclaim that the Bank assumed the duties of trustee for the Joneses, and in their brief the Joneses characterized these alleged duties as those of a “quasi-trustee.” It is apparent that throughout the litigation below the parties tried the ease against the Bank on the theory of agency. Rule 15(b), A.R.Civ.P.

Among other things, the Joneses alleged in their counterclaim, and now allege in brief, that the Bank voluntarily assumed the duties of a quasi-trustee and breached its fiduciary duties to the Joneses of fairness and good faith. They state that “the Land Bank voluntarily assumed and exercised direct control not only over the disbursement of the loan, but also over supervision of construction, payment of suppliers and subcontractors, and over the ordering of materials.”

As a corporate entity, the Bank can only act through its duly authorized agents, servants, or employees. Alabama Music Co. v. Nelson, 282 Ala. 517, 213 So.2d 250 (1968). From the evidence presented at trial, the only three possible agents of the Bank were H.D. Ellzey, Ken Gresham, or Rosemary Harris, the president, vice president, and assistant vice president-treasurer, respectively, of the Federal Land Bank Association of Selma.

The Joneses dealt only with the local Association officers and had no direct dealings with the Bank; therefore, under the peculiar facts of this case, any relationship between the Joneses and the Bank would of necessity be based upon a finding of agency between the Bank and the Association. The trial court did not specifically find that the officers of the Association were the agents of the Bank; however, such a finding is implied by the trial court’s judgments in favor of the Joneses, Rawls, Brown, and Henry, and against the Bank. Rawls, Brown, and Henry, like the Joneses, dealt only with the officers of the local Association and not with the Bank. Because all of the parties dealt with the local Association officers, and not the Bank, their claims, if found to be valid, also must have been based upon an agency relationship between the Bank and the Association. In the absence of such a relationship, the Bank cannot be held liable for the actions of Ellzey, Gresham, or Harris. In that case, the Joneses’ claim that the Bank assumed representative duties must fail along with all of their other claims against the Bank, and the claims of Rawls, Brown, and Henry against the Bank as well.

The Bank asserts that the officers of the Association did not act as its agents in the Jones transactions, and that the trial court should be reversed for finding that the Association officers were the Bank’s agents. In support of its position, the Bank cites several Alabama decisions in which this Court held that Association employees are not the agents of the Bank.

The first of these decisions is Gantt v. Gunter, 225 Ala. 679, 145 So. 146 (1932). Plaintiff brought an ejectment action against a mortgagor, who defended on the basis of mental incapacity to make a valid mortgage. The issue before this Court was “whether, in the matter of making a loan and obtaining a mortgage from the borrower, the National Farm Loan Association, or its executive officer, the secretary-treasurer, is the agent of the Federal Land Bank in such sort that notice to him of the mental status of the mortgagor is notice to the bank.” 225 Ala. at 679, 145 So. at 147. This Court stated that the question is one of law and briefly discussed the structure of the Federal Land Bank and National Farm Loan Association:

“[They] are both parts of the system, but each is a distinct body corporate with prescribed powers and duties.
“The members of the association are borrowers from the Federal Land Bank by mortgages on farm lands. Each member is a shareholder in the association.
“A farmer desiring a loan makes application for membership in the association. The association determines in the first instance, whether the applicant is acceptable. To be acceptable he must be eligible to a loan on a mortgage on farm lands. 12 USCA §§ 741, 745.
“If acceptable, the association joins in the application to the Federal Land Bank for the loan, and in connection therewith the association subscribes for stock in the bank to an amount equal to 5 per centum of the loan, which stock shall stand as collateral security for the loan. 12 USCA § 721.
“In other ways the association is empowered to stand sponsor for the member it has recommended to the bank. 12 USCA § 761.
“When the loan is effected the borrower becomes a shareholder in the association, and the association a shareholder in the bank. 12 USCA §§ 733, 721.
“Thereafter, the secretary-treasurer of the association, who need not be a member, becomes the law appointed agent to receive and pay over monies going from the bank to the borrower, or from the borrower to the bank. 12 USCA § 714.
“This is sufficient to clearly demonstrate that in the matter of passing upon the fitness of the applicant for membership, mental or otherwise, and his consequent right to a loan, neither the association nor its executive officer, the secretary-treasurer, is an agent of the bank. To the contrary the association is an actor with and for the applicant as defined by law. The bank at New Orleans finally determines whether the loan shall be made.
“The true rule seems to be that the powers of the secretary-treasurer are of a public or quasi public character, defined by law.
“The association and its secretary-treasurer have, therefore, a distinct law-made status or autonomy. Persons dealing with him are charged with knowledge of such powers. In any event we agree with other courts who, so far as we find, have uniformly held the secretary-treasurer of the association is not the agent of the bank in matters such as here presented. Bjorkstam v. Federal Land Bank, 138 Wash. 456, 244 P. 981; Byrne v. Federal Land Bank, 61 N.D. 265, 237 N.W. 797; Federal Land Bank v. Shingler, 174 Ga. 352, 162 S.E. 815, 823; Whitaker v. Fulton (Tex.Civ.App.) 17 S.W.(2d) 1079, 1082.” (Emphasis added.) 225 Ala. at 680, 145 So. at 147.

Next, the Bank cites Hinds v. Federal Land Bank of New Orleans, 235 Ala. 360, 179 So. 194 (1938). In that case, the Bank brought an action to quiet title and defendants filed a cross-bill seeking an accounting and damages against the Bank for misappropriating the money borrowed and alleging the following:

“that the application for said loan was made through the National Farm Loan Association of Hulaco, embodying a list of the creditors of said Hinds, Sr., with the amount of each claim to be paid with interest, and that said Farm Loan Association, after, the money came into the hands for distribution, acting as the agent of the bank, misapplied the funds, in that it paid to said creditor claimants more than they were entitled to receive and thereby exhausted the fund, in consequence of which the borrower received nothing, causing him to suffer damages, and if the amount so misapplied and the damage which the borrower suffered is ascertained and applied on the mortgage debt there was no default in the payments at the time of the foreclosure, and said foreclosure was unauthorized, wrongful, and oppressive.” 235 Ala. at 362-63, 179 So. at 196.

This Court held:

“It is a matter of which the courts take judicial knowledge that National Farm Loan Associations, organized under the Federal Farm Loan Act of Congress, have a separate, corporate entity from federal land banks; that they are an association of the borrowers, each borrower becoming a shareholder therein, and when funds constituting a loan reach the hands of the association the law confers on the association and its officers the duty of applying the funds to claims as authorized by the application, and, in doing so the association and its officers do not act as the agent of the bank. 12 U.S.C.A. §§ 720, 721; Federal Land Bank of Columbia, South Carolina v. Gaines, 290 U.S. 247, 54 S.Ct. 168, 78 L.Ed. 298; Gantt v. Gun ter, 225 Ala. 679, 145 So. 146; Hooper v. Federal Land Bank of Columbia, 178 Ga. 571, 173 S.E. 415.
“If the fund constituting the loan was misapplied after it came into the hands of the Federal Farm Loan Association, the remedy of the borrower is against said association, its secretary, or the creditor who received more than he was entitled to be paid.” (Emphasis added.) 235 Ala. at 363, 179 So. at 196.

Again, in Federal Land Bank of New Orleans v. First National Bank of Scottsboro, 237 Ala. 84, 87, 185 So. 414, 416 (1939), this Court reaffirmed the rule followed in Gantt and Hinds, supra: “[T]he association, in supervising the distribution of the funds, was not the agent of the complainant Bank, but acted for the borrower, and itself as a guarantor of the loan.”

In Hinds and First National Bank of Scottsboro, this Court relied on Federal Land Bank of Columbia v. Gaines, 290 U.S. 247, 54 S.Ct. 168, 78 L.Ed. 298 (1933). Gaines was a suit brought by a borrower to cancel her mortgage given to the Bank as being invalid for failure of consideration. Mrs. Gaines, the borrower, applied to the Bank, through the Columbia Farm Loan Association, for a loan. She executed a promissory note to the Bank secured by a mortgage upon her land. The loan check, payable to the secretary-treasurer of the local association and Mrs. Gaines, was endorsed by the payees and deposited in a bank to the credit of the association. Immediately after collecting the check, the bank closed and the proceeds became unavailable to Mrs. Gaines and the association.

The Supreme Court of North Carolina concluded that, under the provisions of the Federal Farm Loan Act, the association was an intermediary between the borrower and the Bank and acted as a public agent in receiving and depositing the check. The court held that the loan check had not been received on behalf of Mrs. Gaines by the association and that, accordingly, she was not liable on the note.

The United States Supreme Court granted the Bank’s petition for writ of certiorari and, after reviewing the case, reversed the North Carolina court, stating:

“The state court rested its decision on the characterization of the association as a public agent, but it did not hold that the association was in any sense an agent for the lender bank. It could not well have done so, for neither the provisions of the Farm Loan Act nor the particular circumstances which attended the loan in the present case gave to the petitioner any right of control over the association or any power to recall the check or its proceeds after its delivery and collection. The association was controlled by directors, elected by its own members, who, like the respondent, were borrowers. After the check was delivered to the association, it passed completely from the control of the lender and into the exclusive control of the payees who were the obligors of the mortgage indebtedness.
“It is true that both the petitioner and the association were, in a broad and general sense, public agencies or instrumen-talities to carry out a policy of the government — the extension of credit to those engaged in agriculture to be availed of in the furtherance of agricultural undertakings. But those purposes could only be achieved through loans made to private individuals. The borrower is under no legal compulsion to borrow. If he takes the benefit of the privilege extended by the statute, he can do so only in compliance with its requirement that he shall join, with himself as obligor, the local co-operative association of which he is a member. This supplies a strong incentive on the part of the associations to perform the duties commanded by the statute, looking to the safety and security of the loan and, as agreed by the borrower and required by the statute, its disbursement for the purposes for which it is made. By applying for the loan and delivering to the lender her mortgage and note, endorsed by the association, in compliance with the act, respondent consented in advance to the procedure for creating and disbursing the loan which the statute prescribes. She renewed that consent when her indorsement of the check was made, with full knowledge that the association, her co-obligor, was to deposit the check to its credit and disburse the proceeds for the purposes for which the loan was made. This consent could not be affected by the closed loan statement which it was intended she should later sign. The statement was to be merely a confirmation or report of what had gone before. The indorsement of the check was the crucial act, for it drew the funds from the control of the petitioner and dedicated them irrevocably to the purposes for which the loan had been secured.” (Emphasis added.) 290 U.S. at 254-55, 54 S.Ct. at 171.

In the Gaines decision, supra, it appears that the Federal Land Bank issued one check representing the loan funds to the borrower and the local association which was subsequently endorsed by the payees and deposited to the credit of the association.

This Court cannot determine from the record in the present case the method of transfer of the loan funds from the Federal Land Bank in New Orleans to the Joneses and the Association. The logical assumption is that the Bank transferred the loan funds to an account in the name of the Association, because the disbursement checks were drawn on the Hibernia National Bank in New Orleans in the name of the Association and signed by Ken Gresham, vice president. No evidence can be found in the record that the Bank had any power to recall the loan proceeds.

The Joneses, Rawls, Brown, and Henry assert that certain statements by Gresham and Ellzey at trial support a finding of agency in fact between the Association and the Bank. On cross-examination, Gresham testified in part:

“Q. Mr. Gresham, I believe you’ve testified that you are a vice president with the Federal Land Bank?
“A. Yes, sir.
“Q. Which association are you connected with?
“A. Selma.
“Q. You are vice president of the Federal Land Bank Association of Selma?
“A. Yes, sir.
“Q. Is that the entity that made this mortgage and handled the transaction?
“A. That is the association that handled the transaction.
“Q. And the mortgage of course was with the Federal Land Bank of New Orleans?
“A. Yes, sir.
“Q. Do you hold any official position with that corporation or organization?
“A. No, sir.
“Q. Your duties are performed for the local association but in turn for the parent company; is that right?
“A. Yes, sir.”

Several excerpts from Ellzey’s testimony are set out below:

“Q. Well, let me ask you this, Mr. Ellzey. Ken Gresham was vice president or is a vice president?
“A. Yes.
“Q. And he was during the time that the loan was made and all subsequent proceedings were had was he not?
“A. Yes, sir.
“Q. What were his duties with respect to this particular loan?
“A. He was to handle the loan.
“Q. So Ken was authorized fully to do any and all things in connection with this loan on behalf of the Federal Land Bank?
“A. Yes, sir.
“Q. Now, you testified in your words you shut her down after you learned that the unpaid creditors were out there?
“A. Yes.
“Q. What action did the Land Bank take at that point?
“A. We discussed the matter with our counsel and with the Land Bank in New Orleans.
“Q. And based on those discussions what action did you take if any?.
“A. The action we took — and I’m going to paraphrase this. They recommended that Jones — that he acquire another contractor to finish the house because our security was the house and without it being completed it wasn’t any good and the other thing that they decided was that the money should be — whatever was remaining be paid into court.
“Q. Now, you did know that Tommy Klinner was going to finish the house did you not?
“A. Yes, sir.
“Q. And you certainly approved the payment after he finished the house didn’t you?
“A. Yes, sir.
“Q. But you’re denying that the Land Bank was a party authorizing that work?
“A. I’m denying that I authorized.
“Q. Oh. Oh.
“A. In behalf of the Federal Land Bank.
“Q. My question then did the Federal Land Bank authorize it?
“A. I can’t imagine them doing it.
“Q. You can’t imagine it?
“A. Not without going through me since I’m their representative.
“Q. Did you authorize the interpleader?
“A. Yeah. I authorized — to act — to give us advice that acted in the best interest of everybody concerned. And I followed that advice.
“Q. So that decision was based on Mr. Pitts’ advice to file an interpleader; is that your testimony?
“A. And in conjunction with the Federal Land Bank of New Orleans.
“Q. What about the decision to disburse the money to Mr. Klinner?
“A. That was a concert decision.
“Q. Also?
“A. Right.
“Q. Based on Mr. Pitts’ advice?
“A. Based on that and the Federal Land Bank of New Orleans’s advice. Our obligation was to finish the house.”

Contrary to the assertions of the Joneses, Rawls, Brown, and Henry, however, agency is not determined by how the parties characterize their relationship, but by the facts of the case. Semo Aviation, Inc. v. Southeastern Airways Cory., 360 So.2d 936 (Ala.1978). In the present case, the controlling statutes clearly provide for the creation of two autonomous entities, and the courts interpreting those statutes have recognized that statutorily there is no agency relationship between the Bank and the Association. (See preceding discussion of these decisions.) The Court in Gaines implied that particular circumstances attending a loan giving the Bank a right of control over the Association, or power to recall the loan funds, might create an agency relationship [in fact]. Alabama law is in accord with Gaines, because one of the facts necessary to establish agency in Alabama is a right of control by the principal over his agent. Wood Chevrolet Co. v. Bank of the Southeast, 352 So.2d 1350 (Ala.1977). Therefore, absent a showing that the Bank had some power to control the Association, Gresham’s testimony that his duties were performed for the local association but in turn for the “parent company” is not conclusive on the question of whether he was authorized to act on behalf of the Bank as its agent in the Jones transactions. Similarly, Ellzey’s statements that he was the Bank’s “representative” and that Gresham was authorized to do anything in connection with the loan on behalf of the Bank do not create an agency relationship. Our review of the record disclosed no factual basis for these statements by Gresham and Ellzey.

Ellzey also stated that the Bank “recommended” that the Joneses acquire another contractor to finish the house, and they “advised” the Association to file the inter-pleader and disburse money to the second contractor. These statements do not show that the Bank had a right to control the Association; instead, they show that the Bank counselled the Association, the guarantor on the loan, on how to protect the Association’s interest.

The burden of proving agency rests upon the party asserting its existence. Johnson v. Shenandoah Life Ins. Co., 291 Ala. 389, 281 So.2d 636 (1973). The Jones-es, Rawls, Brown, and Henry did not meet this burden, and the judgments in favor of them against the Bank are due to be reversed.

Because this Court has determined that the Bank had no control over the funds and, therefore, was not the proper party to interplead them, this case must be remanded to the trial court for further proceedings to determine to whom the interpleaded funds should be paid.

The next issue with respect to the Bank’s appeal is whether the trial court erred in requiring the Bank to account to the Joneses for interest charged to them on the sum interpleaded. The trial court found that the interpleader constituted an abuse of process, and that, therefore, the sum interpleaded continued to belong to the Bank. This Court agrees that the Bank must account to the Joneses for the interest charged to them on the funds sought to be interpleaded by the Bank, but our conclusion is not based upon abuse of process grounds. Rule 22, A.R.Civ.P., provides:

“Persons having claims against the plaintiff may be joined as defendants and required to interplead when their claims are such that the plaintiff is or may be exposed to double or multiple liability.”

The interpleaded funds could not have been treated as a disbursement because of the nature of an interpleader action. The stakeholder in an interpleader action admits that he is uncertain as to whom the stake belongs. See Finn v. Missouri State Life Ins. Co., 222 Ala. 413, 132 So. 632 (1931). It is inconsistent for the stakeholder (the Bank here) to claim, on the one hand, that he is uncertain about the owner of the funds and then, at the same time, to claim that the funds have been disbursed to a particular party who is chargeable with interest on those funds. Thus, the trial court’s judgment requiring the Bank to account to the Joneses for interest charged on the money interpleaded is due to be affirmed.

The Joneses cross-appeal from judgments entered against them and in favor of Tillery, Brown, Central, Rawls, and Henry (82-65). The trial court made no specific findings disclosing the theories upon which those judgments were based. “In the absence of specific findings of fact by the trial court, this Court will assume that the trial court made those findings necessary to support its judgment, unless such findings would be clearly erroneous and against the great weight and preponderance of the evidence.” Hand v. Stanard, 392 So.2d 1157, 1159 (Ala.1980).

The record in the case at bar is long, confusing, and consists in major part of handwritten pleadings which are difficult to decipher. Some of the claims asserted against the Joneses were presented in a form designated as “Summary of Claims” and apparently these were intended to serve as pleadings in the nature of amendments to cross-claims. This Court has searched the record, and it appears that Tillery filed counts of open account and for work and labor done; Rawls apparently filed on open account; Henry also apparently filed on open account; Brown apparently filed on open account, and for work and labor done; and Central apparently filed a count for work and labor done. The question then becomes whether or not the trial court’s presumed findings under those theories were supported by the evidence.

The Tillery Judgment

The Joneses allege that they never contracted with Tillery to pay for the carpet installed in the house, and that Tillery dealt only with Hargrove. Therefore, they assert that the trial court erred in entering the judgment against them, which was entered jointly against Hargrove in favor of Tillery in the amount of $2,021.60.

Tillery’s claims were apparently based upon recovery for work and labor done and open account, and this Court assumes that the trial court found that Till-ery was entitled to recover on those theories. The trial court heard the evidence without a jury and its findings based upon that evidence are presumed correct in the absence of palpable error. First Alabama Bank v. Coker, 408 So.2d 510 (Ala.1982).

James Tillery testified at trial:

“A. They [the Joneses] were within the price range and when I give a price well then they seemed like it was satisfactory with them. As far as telling them they were, I didn’t quote them a price, I just said they were within their price range. And then at that point I wanted to know before we went any further who was going to pay for it.
“Q. Did you ask Mr. Jones that?
“A. Yes, sir, I did. And at this time he said that Hargrove and Azalea Building. I said well I didn’t know a thing about Hargrove and Azalea Building. I don’t know them. But I said on the basis of him — and he was a policeman, I said on the basis of you and you being married to a LaPorte and you’re local I said I’ll go ahead and order the material for you.
“Q. Did he say anything about how you were to get paid?
“A.. He told me the same afternoon, the 7th or 8th, that afternoon, that he would guarantee my money and that he would bring by an affidavit and get me to sign it showing that I had received my money before he closed the house out.
“Q. Who did he say was going to pay you?
“A. He never did — he guaranteed it and I never did ask him. I was looking to Mr. Jones.
“Q. Did you ever talk to Mr. Har-grove at all?
“A. No, sir.
“Q. So he [Jones] could either pay that to the contractor who would pay you or he could buy the carpet himself and pay you?
“A. Right. Just so I got my money that was it. And I was looking to Jones for it. I was dealing directly with Jones.”

This evidence was sufficient to support a finding by the trial court that the Joneses were obligated to Tillery on an account. Accordingly, the trial court’s judgment is due to be affirmed.

The Rawls Judgment

The Joneses assert that the judgment in favor of Rawls and against them is clearly erroneous and contrary to the great weight of the evidence in this action. They cite the following testimony by Rusty Rawls in support of their assertion that Rawls was looking to the Bank and not to the Joneses for payment:

“Q. Mr, Rawls, with respect to this account that you’ve testified to, who did you extend the credit to?
“A. I extended the credit in my own mind to the Federal Land Bank. Because I wouldn’t have sent the first dime out there without them.”

Both the Joneses and Rawls cite the following testimony by Rawls in support of their position:

“Q. All right. If Mr. Gresham hadn’t guaranteed your payment at the beginning would you have extended any credit to Mr. Jones and Mr. Hargrove?
“A. No, sir.”

Rawls claims that the preceding excerpt shows that he extended credit to the Jones-es as well as the Bank. Additionally, Rawls asserts that there is ample evidence to support a finding for him against the Joneses on open account based upon quasi-contract.

This Court discussed the remedy of quasi-contract in Opelika Production Credit Association, Inc. v. Lamb, 361 So.2d 95, 99 (Ala.1978):

“Under modern authorities, the remedy has been expanded to reach benefits other than money received. A person may be considered to have conferred a benefit upon another if he has given him possession of, or an interest in, land, chattels, or choses in action, or if he performs some service which is beneficial to or at the request of the other person, or if he satisfies a duty on a debt of the other. Whenever one person adds to the other’s advantage in any form, whether by increasing his holdings or saving him from expense or loss, he has conferred a benefit upon the other. Restatement, Restitution, § 1(b); Sullivan, The Concept of Benefit in the Law of Quasi-Contract, 64 Geo.L.J. 1 (1975).
“The remedy of quasi-contract is founded upon the familiar principle of avoiding unjust enrichment. Where the plaintiff has suffered a detriment, and the defendant has received a benefit as a result, it is said that justice demands the repayment by the defendant of the plaintiffs loss. The measure of the defendant’s liability is, however, limited to the value of the benefit received, whether or not it is equal to, less than, or greater than the plaintiff’s loss. But, in any case, there must be a detriment, and a resulting benefit, and the two must be related....”

The Joneses clearly received a benefit by having Rawls deliver supplies and materials to be used in their house. Likewise, Rawls clearly suffered a detriment in the amount of $12,775.23. Accordingly, the trial court’s judgment for Rawls is due to be affirmed because there was sufficient evidence from which the trial court could find for Rawls under the theory of quasi-contract on the count of open account or goods sold.

The Henry Judgment

Doug Sellers testified as follows in connection with the claim of Henry Brick:

“Q. He [Jones] said what, Mr. Sellers?
“A. Said he needed brick for his house and the number he needed. And he said go ahead and bill it to the Federal Land Bank.
“Q. Why did he say do that?
“A. Because we would not bill it to Webb Hargrove.
“Q. Did he indicate why the Federal Land Bank?
“A. They were financing the construction of his home.
“Q. And did you bill it that way?
“A. I billed it that way.
“Q. And I show you Defendant Henry Brick Exhibit No. 16 which is an itemized account, Mr. Sellers. Is that the amount of the total account for the brick that went in Mr. Jones’s home?
“A. Right.
“Q. And that’s $1,393.25?
“A. Right.”

Therefore, Henry suffered a detriment in the sum of $1,393.25, plus interest accrued, and the Joneses received a benefit by having the brick installed in their house. The Henry judgment against the Joneses is due to be affirmed for the same reasons supporting the Rawls judgment.

The Brown Judgment

J.M. Brown testified that he installed plumbing in the house and that the amount owed to him was $1,208.68. The Court entered judgment for that amount plus interest. Under the rationale set out in the Rawls discussion, the Brown judgment is due to be affirmed.

The Central Judgment

The Joneses allege that the judgment in favor of Central and against them is erroneous and contrary to the great weight of the evidence. Central installed the heating and air conditioning in the Jones home. Nelson Free, a partner in Central, testified:

“Q. Did anyone come by at any point and ask you to complete the work?
“A. Yes, sir.
“Q. Who came by?
“A. Mr. Jones came by my office.
“Q. And when did this occur?
“A. It was several — if I may elaborate, Mr. Jones at the time was a police officer and on patrol he would stop by the office several times. Or he had stopped by several times to ask us to complete the air-conditioning at his house.
“Q. And what was your response to Mr. Jones’s request?
“A. We refused to at the first instance.
“Q. When you say first instance, on how many instances are we talking about?
“A. If memory serves, I believe it was three or four times he stopped by the office.
“Q. Were there any subsequent instances to the four or five times that he did come buy and ask you and you did refuse?
“A. I don’t follow you.
“Q. What if anything caused you to go out on the job site again?
“A. What refused us to?
“Q. What if anything caused you to go out on the job site again?
“A. I’m sorry, I couldn’t understand you.
“Q. Following the times that Mr. Jones came by your office and you testified that you refused to go back out and complete the work, what if anything happened to make you change your mind?
“A. Oh, okay. Mr. Jones as I said had come by and he asked that we finish the air-conditioning work. And if I remember I told him that we had heard from other subs that Mr. Hargrove was not paying the bills. And so he said that he wanted to know how much was left owing us and so I told him. And he said well if you’ll finish I’ll pay you.
“Q. Now, were those his exact words?
“A. To the best of my knowledge. He said if Mr. Hargrove doesn’t pay you I’ll pay you if you’ll finish it.
“Q. On that basis did you enter in to the premises again and perform services?
“A. Yes, sir.
“Q. What is the amount of the indebtedness that you’ve claimed is owed you by virtue of this work which you filed in small claims and appealed here?
“A. I believe it is $587.”

This evidence is sufficient to support a finding by the trial court in favor of Central and against the Joneses on the count for work and labor done.

To summarize, the judgments in favor of Tillery, Brown, Central, Rawls, and Henry against the Joneses are affirmed. The judgments against the Federal Land Bank of New Orleans in favor of Henry, Brown, Rawls, and the Joneses are reversed, except that the judgment requiring the Bank to account to the Joneses for interest charged on the sum interpleaded is affirmed. The judgment requiring the Bank to pay attorney’s fees out of the interplead-ed funds is reversed and the cause remanded for the trial court to determine to whom the interpleaded funds should be paid. Accordingly, the judgments are affirmed in part, reversed in part, and the cause remanded.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH DIRECTIONS.

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


source: Caselaw Access Project

author: JONES, Justice. MADDOX, Justice

license: Public Domain

text:
    Mary A. DAVISON, et al. v. MOBILE INFIRMARY and Dr. Richard H. Esham.
    82-521.
    Supreme Court of Alabama.
    July 16, 1984.
    Rehearing Denied Aug. 24, 1984.
    Joseph M. Matranga and Patrick M. Si-gler, Mobile, for appellants.
    James J. Duffy, Jr. and James J. Duffy, III, of Inge, Twitty, Duffy & Prince, Mobile, for appellee Mobile Infirmary.
    W. Boyd Reeves and A. Danner Frazer, Jr. of Armbrecht, Jackson, DeMouy, Crowe, Holmes & Reeves, Mobile, for ap-pellee Dr. Richard H. Esham.
   JONES, Justice.

This is a complex medical malpractice case in which the trial judge directed a verdict in favor of one Defendant (Mobile Infirmary), and the jury returned a verdict in favor of the remaining Defendant (Dr. Richard H. Esham). Plaintiffs, Mr. and Mrs. Davison, claiming professional misconduct (negligence and wantonness), contend that Mrs. Davison, while hospitalized at Mobile Infirmary, was permanently blinded as the result of an excessive accumulation of coated aspirin (Ecotrin), which, after amassing in her stomach, passed at once into her small intestine, causing sali-cylate poisoning.

Because we find that the trial court erred in granting Mobile Infirmary’s motion for a directed verdict, and in the giving of certain jury instructions with respect to that portion of the judgment rendered on the jury verdict in favor of Dr. Esham, we reverse and remand this cause for a new trial as to both Defendants on the negligence claims only.

FACTS

Mary A. Davison first visited Dr. Esham, a specialist in internal medicine, in 1975, complaining of stomach problems and vomiting. He diagnosed ulcers and prescribed a soft diet, antacids, and related medications. Having experienced recurrent problems with her stomach and digestive processes, Mrs. Davison was hospitalized by Dr. Esham at Mobile Infirmary in 1975 for corrective surgery by Dr. Larry McGee on an intractable duodenal ulcer. Post-operative care necessitated a stay of approximately two weeks at Mobile Infirmary.

In January of 1977, Mrs. Davison again visited Dr. Esham, complaining that her stomach filled up easily. X-rays revealed the presence of a “bezoar,” calcified particles and foreign materials mixed with food and secretions, forming a sausage-like mass. The “bezoar” was treated with meat tenderizer, a common practice for such disorders, and subsequent X-rays showed it to have dissipated. According to Dr. Esham, in April of 1977, he advised Mrs. Davison to take “Ecotrin” for her arthritic condition.

In June of 1977, Mrs. Davison returned to Dr. Esham, complaining of mildly acute symptoms similar to those experienced in 1975 and and earlier in 1977. Suspecting a recurrence of her former condition (the presence of a “bezoar”), Dr. Esham had Mrs. Davison admitted to Mobile Infirmary on Friday, June 24, 1977. She was X-rayed at 8:17 a.m., Sunday, June 26, by Dr. William McDaniel, staff radiologist at Mobile Infirmary.

Because of the specific issues raised on appeal, particularly the trial court’s alleged error in granting Mobile Infirmary’s motion for a directed verdict, we deem it essential to quote from the trial record certain portions of the medical testimony. Dr. McDaniel (whose agency relationship with Mobile Infirmary is not here in dispute), testified concerning his interpretation of the X-rays made of Mrs. Davison that Sunday morning, in pertinent part:

“Q What part of Mrs. Davison’s anatomy does [this x-ray (indicating)] depict, please, sir?
“A Her stomach and upper intestinal tract.
“Q [Y]ou see some spots on the x-ray? “A Yes.
“Q Did you interpret what those spots were?
“A Yes.
“Q And what did you interpret them to be?
“A I said m the report, they had the appearance of medication pills.
“Q And what fact did you base that on at the time you made that interpretation?
“A Having seen them many times before.
“Q... Based upon your interpretation of this x-ray and the wording [of your report], ... was what appeared to be a large amount, a huge amount of medication pills undissolved, did you think it was important to call her admitting physician and report even though he hadn’t requested it? .O
“A I didn’t at the time. t>
“Q... And you did not, did you? .©
“A I did not. !>
“Q ... How did you handle your report on this x-ray? <©
“A I dictated a report and it was put on the patient’s chart.
“Q And what happened to it after that? O*
“A I don’t have any way to know. <1
“Q [I]n addition to interpreting this as being what appeared to be a large amount of medication pills, you also said that it appeared to have the consistency of a bezoar.
“A That’s correct.
“Q What is a bezoar?
“A It’s an accumulation within the stomach of foreign material other than food that’s mixed with food and secretions and forms a sausage-like mass.
“Q Did you have a discussion with Dr. Esham about these x-rays?
“A I have never discussed this case with Dr. Esham.
“Q How long had you been interpreting x-rays when you interpreted this one that we’re looking at here [on June 26, 1977],
“A I went into radiology in 1970.
“Q So, you'd been doing it for- seven years?
“A Well, part of that time I was a trainee. I was a resident.
“Q About how many x-rays would you say you see a day?
“A A hundred or more.
“Q You work five days a week? Five hundred a week, two thousand a month?
“A Maybe.
“Q Twenty-five thousand a year?
“A Possibly.
“Q In seven years, maybe a hundred and fifty thousand x-rays — just give or take?
“A It’s possible.
“Q Had you ever seen an x-ray that had as many pills in someone’s body as this on the date that you saw this on June [26] of 1977?
“A No.
“Q Did you consider it to be unusual that you had just viewed an x-ray that has more pills in it than you’ve seen in a hundred and fifty thousand or so x-rays?
“A I’ve never seen that many pills in an x-ray of the stomach before.
“Q Did you think it was unusual?
“A Yes.
“Q Was it out of the ordinary?
“A Yes.
“Q Was it an emergency situation?
“A Not in my judgment, but I don't know. I’m not a clinician. I can’t make that judgment.
“Q You didn’t know what the pills were, did you?
“A That’s right.
“Q How could you tell?
“A I couldn’t make that judgment.
“Q What else would it take, other than what you saw on this x-ray, to deem it an emergency?
“A Well, the first thing that comes to my mind would be if there was some leakage — say if the stomach were ruptured, if there was a tear and some of it was leaking out of the stomach.
“Q By that .would you also mean that maybe if some had been going down into the intestine?
“A No. Some of it was out of the stomach through a tear or rupture, that would be a true emergency, and I certainly would have called, you know, immediately, if I had seen such a thing as that.
“Q Did you know at the time that you interpreted this x-ray whether or not Mrs. Davison had had any prior surgical procedures for gastric outlet obstruction?
“A Yes, I knew that.... I can see that she’s had surgery by the metal surgical clips.
“Q Did you tell [Mrs. Davison] of the findings of the x-ray—
“A No. I did not.
“Q Any particular reason?
“A We never give reports to patients unless the doctor directs us to.
“Q Well. I don’t mean handing her the written report. I’m talking about just verbally telling her ... ‘Mrs. Davison, you have a lot of pills, more than I’ve seen in seven years’?
“A Oh, no. I never told her that.
“Q Did you consider ... the interpretation of the June 26th, 1977, x-ray of Mrs. Davison to be a dangerous condition?
“A Depends on what the pills were, and I have no way of knowing that ....
It could also [not] be a dangerous condition.
“Q Did you consider it to be a potentially dangerous situation?
“A It would depend on what the pills were.
“Q If they were Ecotrin aspirin tablets, would they have been a dangerous condition?
“A It’s possible.
“Q ... Is it the national standard (of medical care] that if the radiologist working for a private hospital in California or New York or Miami, Florida, would call an admitting physician if he viewed an x-ray of his patient and deemed it an emergency?
“A I would say yes.
“Q Would he also call if he deemed it a dangerous condition?
“A Possibly.
“Q ... You’ve called physicians before under those circumstances, haven’t you?
“A Yes.”
On Monday, June 27, 1977, Mrs. Davison was visited by Dr. Adrian Bodet, Jr., one of Dr. Esham’s partners. Dr. Bodet testified that he first became aware of the X-ray report on the morning of June 27. Dr. Bodet testified, in pertinent part:
“Q Could you be more specific [concerning your first hospital visit with Mrs. Davison]?
“A Well, when I saw the patient on the 27th, the patient was apparently alert and had been to x-ray, and the x-ray had shown a bezoar on the G.I. series. In the normal gallbladder, the G.I. series also showed a spastic outlet from the stomach, and I requested gastroenterology consultation regarding gastropathy on that date, and looking at the doctor’s orders, I have a note here: ‘Consult Dr. Williamson re: gastroscopy.’
“Q [W]hy was this procedure ordered?
“A Because the patient had previous history of intestinal disease with ulcers and a surgical procedure had been previously done and the patient had material in the stomach on the G.I. series .... that should not have been there. It was suggested by the radiologist that it was probably a bezoar, b-e-z-o-a-r.”

Dr. Larry McGee, who performed stomach surgery on Mrs. Davison in 1975, also saw her on Sunday, June 26. Rather than quoting directly from the record, we will summarize the substance of Dr. McGee’s testimony as follows: Dr. McGee said there was nothing “peculiar” about Mrs. Davi-son’s condition other than the fact that she had had problems in the past. On Monday, June 27, Dr. McGee learned for the first time about the “bezoar” condition which, in his opinion, did not indicate the necessity for immediate surgery. Mrs. Davison, on the 27th, “was in perfectly good condition other than she was having nausea and vomiting periodically from her gastric outlet obstructed stomach.” He suggested that she have a gastroscopic examination to determine what type of pills were in her stomach; and, in his medical opinion, there was no indication on that date that “anything else should have been done such as washing out her stomach.”

Of her condition when he saw her again on Tuesday morning the 28th, he said “[H]er picture had markedly changed from the time I’d seen her the previous day. And that morning, she was drowsy, hard to rouse, she was breathing rather rapidly, and her blood pressure was down. She was in a semi-shock state _ We increased the rate of her fluids ... then we transferred her to one of our intensive care units and drew some studies to try to find out what was the matter with her.”

Further, Dr. McGee was of the opinion that the pills could not have been surgically removed because, “After she got very sick, she was very sick, and we feared for her life — and at the time the diagnosis was made, or in that period, she had had things going on that would make any surgical procedure a terrible risk .... My note [of July 2nd] says, ‘Clinically better. Would think surgery only as a last resort for extraction of pills. I would favor pushing hydration and perhaps trying purging with magsulfate via levin tube.’ ”

Dr. McGee further stated that X-rays done on July 7th or 8th, 1977, “reflected that all the pills were gone” and that he performed surgery on August 9th. It was his opinion that her “life-threatening situation” was caused by her intoxication, which in turn was caused by the Ecotrin impacted in the bezoar, and that none of the doctors who treated Mrs. Davison, including Dr. McDaniel, the radiologist, deviated from the recognized standard of medical care. While the record is not entirely clear on this point, apparently Mrs. Davison was in a total comatose state for about three weeks and did not recover to a fully lucid state until just before the August 9th operation; and, when she was discharged on Friday, August 19, 1977, her condition was medically diagnosed as a permanent loss of vision.

Plaintiffs’ expert witness, Dr. George R. Schwartz, a Board certified family medicine practitioner from Albuquerque, New Mexico, with a background in toxicology, testified in pertinent part:

“Q When you were contacted by [Plaintiffs’ counsel], what were you told or asked about this case, if anything?
“A I was told that a woman had pills in her stomach which might have represented an emergency situation, and she became blind, and he wondered whether I would review the hospital records and give my opinion as to whether there appeared to have been a mistake made in the management of the patient or in the diagnosis.
“Q And what are your opinions?
“A My opinion is that this unfortunate woman developed a bezoar of mixed food and undigested pills. This is an extremely unusual occurrence and one which I believe should have alerted the radiologist to possible seriousness — the possible emergency nature of this condition. This was not particularly noted and subsequently, some of the pills became ingested and Mrs. Davison developed a severe salicylate poisoning and eventually went into coma. Even when she was in coma, and even once the diagnosis of salicy-late poisoning had been made, no attempt — no serious attempt — was made to get the pills out of her stomach. When she woke up, she had serious visual impairment, and I believe that, while I cannot pinpoint the exact cause of her visual impairment, I believe it’s a toxic impairment related to the poisoning and her coma; or phrasing it another way, in my opinion, ... had she not developed this toxication, which included severe poisoning and comatose state, her vision would be normal for her age.
“Q [F]rom the time they knew about the pills being there, the treatment that they rendered, would you agree that that was a judgment call based on their training and experience or is it your opinion, and is it your testimony here today, that what they did was a complete deviation of the standard of care of other practicing physicians in this same area of medicine in the national medical community?
“A Yes, it was a mistake.
“Q It was a mistake?
“A Yes.
“Q Is the treatment that they rendered acceptable treatment for this type of condition under these circumstances?
“A No.
“Q Under no circumstances?
“A It’s under these circumstances.
“Q Well ... that’s my question — under the circumstances which existed, was the treatment which Dr. Eshasm or his partners gave to this patient acceptable medical treatment for this patient?
“A In terms of the subsequent management of her aspirin toxicity, I think that management was excellent. In terms of the management of her kidney failure, her liver disease, I think that management was excellent .... I am focusing now only on the area of the initial intoxication, the pills being in the stomach and the failure to remove these pills which [led] to the intoxication, in that, I believe the treatment was unsuitable.
“Q Do you know when she started having difficulties?
“A She said on Monday evening.
“Q Did you note where the doctors had scheduled a [gastroscope] for this lady on the next morning?
“A Yes.
“Q Would that not be an acceptable procedure for the type of condition this lady had?
“A Well, there was still no recognition of the emergency nature of her condition.
“Q Again, ... the fact that they knew this lady had a previous, almost identical experience a few months before, would [that] have made any difference in their treatment of this patient?
“A Yes. It might have made a difference in the treatment of the patient and possibly initially at that point, the physician might be able to say, ‘Oh, just another bezoar. We can take our time with it.’ Even though it was rare, and even though in the radiologist’s experience he has never seen such a case before. However, when she began getting sick and began showing signs of toxicity, at that point, removal of the unabsorbed medication became an absolute emergency and this was not treated as such.
“Q It’s also your opinion as I understand that this salicylate poisoning played some role in this lady’s blindness.
“A The salicylate plus other pills, which I suspect were absorbed into this mass, plus the coma.
“Q [H]ave you read any reported cases similar to this where this type of blindness was caused in the patient?
“A No.
“Q This would be a first?
“A This is a very unusual case and in fact, a bezoar of this size, as I said, is unusual at every level, and I have not read a case like this, but I cannot avoid the conclusion that there was a relationship between the intoxication, the coma, and this subsequent blindness.
“Q This was an unusual case from beginning to end, wasn’t it, Doctor?
“A Yes.
“Q ... What do you think should have been done when the x-ray disclosed the bezoar?
“A I believe that the radiologist should have alerted the treating physician in some special manner to the fact that there was an unusual occurrence.
“Q Well, you have testified that this was an unusual case from start to finish; is that right?
“A Yes.
“Q [W]ill you also agree that there was no precedent for what happened here, no reported ... case studies.
“A Yes, that’s right.
“Q And yet it’s your testimony that this radiologist and these doctors made a mistake in this most unusual set of circumstances.
“Q Would it come as a surprise to you that there would be other physicians who would render opinions contrary to what you have told us here today?
“A It would come as a surprise to me if some physician were to say that he did not feel there was any relationship between the intoxication or the toxicity or the coma and the blindness.
“Q Would it come as a surprise to you if some other physician would say that these doctors and radiologists are not guilty of any mistake in their treatment of this patient?
“A Well, I think everyone is entitled to their opinion.
“Q And you have come here from Albuquerque, New Mexico, to give us yours, haven’t you, Doctor?
“A Yes, I have indeed.”
Upon completion of Dr. Schwartz’s testimony under direct examination by Dr. Es-ham’s lawyer, Dr. Schwartz answered the questions of Plaintiffs’ lawyer, in part, as follows:
“Q [D]o you have an opinion as to what the radiologist should have done upon seeing the pictures that you have examined and reading the reports which you have examined as to her condition? Do you have an opinion as to what the radiologist should have done at that time; that is, the Sunday morning that they took the x-rays?
“A Yes, I do have an opinion, because this was the only case this radiologist had ever seen, so it was distinctly unusual in his experience, and I feel he should have paid special attention to alert the treating physician of the rarity, or unusual nature, of the circumstances.
“Q Now Mr. Reeves further asked you about the pills that were in her stomach. How difficult would it have been in your opinion to have identified the contents of her stomach after seeing these x-rays?
“A It would have been a procedure taking a very short period of time with no risk whatsoever — minimal risk.
“Q What would that procedure have been?
“A It would have been the insertion of a nasogastric tube to try to aspirate some of the contents and send it to the laboratory for analysis. If that were unsuccessful, then the insertion of a gastroscope ... which could have taken a little piece off of the bezoar, and once again, submitted it to the laboratory for investigation.
“Q Now Mr. Reeves asked you a question about the unusual circumstances of this case, about patients coming in with poisons, and you started to say that usually patients come in sick, but in this case, and then there was another question asked. I would like for you to finish that answer. In this case, what distinguishes that?
“A In this case, there was the knowledge that she had pills in her stomach, and she appeared to be healthy and well and became sick within the hospital.
“Q Dr. Schwartz, you have been at what hospital for the last five years?
“A The University of New Mexico Medical Center.
“Q How big is that hospital?
“A It’s about two hundred and fifty beds now.
“Q Are you aware of the standards of the hospitals throughout the nation as to what standards they must adhere to?
“A It’s my understanding that unless there is an isolated community of doctors with limited training or experience that there is a national standard.
“Q Are you familiar with that national standard?
“A I believe so _ I believe ... that the standards which are applied to a situation like this are standards of care — I’m speaking about the management of patients — would be national standards not based upon, of course, testimony of, you know, national people and discussions of that. It’s not that there is a written standard of care somewhere in the sky somewhere, but there is a national standard. You can no longer say, ‘Well, it’s just what the doctor a few miles down the road would do.’
“Q Now, based upon your medical and educational background and your experience as a practicing physician among others, in your review of the medical records on this lady, the plaintiff here, that is including the x-rays and other medical data which you have testified to today, do you have an opinion as to whether or not there was a deviation or departure from the reasonable care, skill, and diligence in the treatment of Mary Davison, which physicians in the national community in the same general line of practice ordinarily have and exercise in a similar case and under these circumstances, do you have an opinion.
“A Yes.
“Q What is that?
“A My opinion is that the failure to remove these pills represented a substantial deviation from a standard of care.
“Q Do you attach any significance in the failure to identify the contents of the stomach or the identity of these pills?
“A I think the identity becomes less relevant than the removal. If you have a poison, you can spend hours in chambers discussing the nature and the chemistry of the poison, but if you can start removing a poison in five minutes, I think it’s best to do that.
“Q And do you have an opinion as to the cause of this lady’s blindness?
“A Yes.
“Q What is that opinion?
“A My opinion is that the toxicity due to the absorption of the pills, coupled with her seriously impaired physical state, which included dehydration and alterations in her blood chemistry and her comotose state acted together in such a way as to impair her vision.”

ISSUES

Of the several issues presented for our review, we will address at length only one issue as to Mobile Infirmary (the granting of a directed verdict) and one issue as to Dr. Esham (the giving of requested jury Charge No. 36.)

THE APPEAL AS TO MOBILE INFIRMARY

Two separate grounds, now applicable on appeal, were stated in Mobile Infirmary’s motion for a directed verdict:

1) Insufficient evidence of any breach of duty; and
2) Lack of proof of any causal connection between Mobile Infirmary’s conduct and Mrs. Davison’s subsequent injuries.

The trial court rejected ground number one and explicitly based its ruling on the proximate cause issue. We think those quoted portions of the record set out above speak for themselves and that the court was clearly correct in rejecting Mobile Infirmary’s insistence upon ground number one.

The following direct quote from Mobile Infirmary’s brief summarizes its position on the proximate cause ground:

“To allow the plaintiffs’ ease against Mobile Infirmary to go to the jury on the state of the record as it existed when the plaintiff closed her case would cause the jury to engage in rank speculation and conjecture. In this connection, there was no proof adduced by the plaintiff at trial that the interval between the time that the radiologist’s x-ray report was inserted on the plaintiff’s chart and the time when one of her treating physicians first familiarized himself with said report in any way caused or contributed to cause the plaintiff’s alleged injuries and damages. The record on this point clearly shows that the plaintiff’s condition did not deteriorate until several hours after Dr. Adrian Bodet, who practiced with Dr. Esham, first familiarized himself with the x-ray reports.”

Mobile Infirmary next points in its brief to a specific portion of Dr. McDaniel’s testimony:

“Q Assume for our purpose here, that Dr. Bodet has testified that he read your report in the early morning of June 27, 1977, before this lady ever got sick. She didn’t start getting sick until that night. Assume he read the report, then doesn’t that make the whole question of whether you should have called Dr. Esham or didn’t call Dr. Esham a moot question?
“A Yes, sir.”

Mobile Infirmary concludes its argument on this point as follows:

“The magnitude of the speculation which a jury would have to engage in if the plaintiff’s case against Mobile Infirmary was submitted to it for consideration is pointed out by the plaintiff herself in her brief when she alludes to the differences of opinion existing among the plaintiff’s treating physicians and other physicians who testified at the trial of the instant lawsuit. In this regard, there was a difference of opinion as to the method of removing the medication from the plaintiff’s stomach, and if the jury were to decide this question, it would have to speculate as to, initially, which treatment would be chosen and, secondly, as to whether or not such treatment would have prevented her alleged injuries and damages. The trial court correctly ruled in taking the ease against Mobile Infirmary away from the jury.”

Plaintiffs’ lawyer, after detailing the chronology of events throughout Mrs. Dav-ison’s hospitalization, argues:

“So there you have it: The patient’s got a stomach full of pills but she’s in no distress so it’s not an emergency. The pills break up and she suffers severe salycilate intoxication and then she’s too sick to have any of the recommended procedures performed. She stays in a coma for 8 or 9 weeks and comes out blind. The Plaintiff’s expert witness, Dr. Schwartz, says there is a causal relationship. Dr. Okun, the ophthalmologist, says he doesn’t know what caused her blindness but it wasn’t salycilates. All in all, this lady was discovered to have a very serious and dangerous condition and no one ever got concerned about it until after she got ill and went into a stupor

Again, in his reply brief, Plaintiffs’ lawyer counters Mobile Infirmary’s argument in this manner:

“[Mobile Infirmary’s proximate cause] argument is promptly and readily dismissed when the facts are considered concerning the knowledge the Mobile Infirmary’s radiologist had upon the interpretation of the x-ray made on the patient _ Dr. McDaniel, the hospital radiologist, testified even though he had interpreted more than 25,000 x-rays he had never seen such a large number of pills depicted on an x-ray before. Dr. McDaniel also testified that in cases [that] he deemed to be an emergency situation the policy of the hospital was to call the physician whether the physician requested it or not. However, the Mobile Infirmary’s radiologist did nothing other than to handle it in a routine manner without even alerting the patient. Dr. Schwartz testified that it was indeed an emergency situation and that the hospital’s radiologist should have notified the physician or told the patient immediately so that something could have been done to alleviate this medical crisis. Further, Dr. McDaniel testified that when he did alert the physician as to his findings of an emergency situation they generally came to the hospital themselves immediately to determine what course of action to take. There is nothing to dismiss the theory that had Dr. McDaniel done this in this case a physician would have arrived at the hospital immediately and a remedial course of action taken to determine what the pills were in the patient which would have defused the medical time-bomb that was present in the patient’s stomach.”

The parties cite the same cases and express a common understanding of the substantive law, as well as the standards of review, that govern this case. As between Mr. and Mrs. Davison, as Plaintiffs, and Mobile Infirmary, as Defendant, the resolution of the dispositive issue depends upon this Court’s independent review of the record to determine whether Plaintiffs’ evidence presents a prima facie case. We hold that it does.

In granting Mobile Infirmary’s motion for a directed verdict, the trial court clearly felt that the missing causal link in the Plaintiffs’ chain of evidence consisted of the treating physicians’ testimony with respect to their negative conduct after knowledge of the X-ray reports. The apparent logic of this position, supposedly, is this: If Dr. Esham and his medical group did not act upon such information, once they learned of the report some 24 hours after it was routinely filed by Dr. McDaniel, then his failure to directly communicate the report to Dr. Esham earlier could not have made any difference in Mrs. Davison’s treatment.

The flaw in this reasoning is two-fold: 1) The trial court correctly held, in overruling Dr. Esham’s motion for a directed verdict, that the evidence made out a jury issue with respect to Dr. Esham’s alleged failure to act upon the X-ray report; but then, the trial court erroneously resolved a yet unresolved jury issue as to Dr. Esham’s negligence and used that finding as a factual premise for its order directing a verdict for Mobile Infirmary; and 2) it assumed, as a factual conclusion, that this 24-hour delay was not a critical period in the medical decision-making process, particularly in view of Mrs. Davison’s rapidly deteriorating condition.

At the risk of repetition, we restate the rationale for our holding. Because Dr. Es-ham testified he would not have treated the patient sooner had he known earlier of the X-ray findings, the trial court reasoned that, even if the Hospital was negligent, there was a failure of proximate cause. In directing the verdict for the hospital, the trial court usurped the jury’s prerogative and decided a factual question — the question of the credibility of Dr. Esham — even though the court submitted that very factual issue to the jury.

The jury, acting within its exclusive fact-finding province, could have concluded that it was in the treating doctor’s self-interest to say he would have done nothing sooner, for to have said otherwise would have been an admission of guilt, where, as here, he did nothing sooner or later to alleviate the toxic condition. As a premise for its directed verdict holding, the trial court also decided an additional factual question— whether the X-ray doctor’s report, as routinely handled, adequately apprised the treating doctor of the unusual and dangerous potential of that which was revealed by the X-ray. This, too, involved the credibility of the witness, which is always for the jury.

In addition to the affirmative proof bearing on this issue, as detailed in the quoted portions of the transcript, certain matters about which the record is silent furnish reasonable inferences favorable to Appellants’ 'prima facie case against Mobile Infirmary: 1) In spite of Dr. McDaniel’s X-ray interpretation that the stomach bezoar contained a large quantity of undissolved pills, whose life-threatening potential could not have been known until their identity was learned, the record reveals that none of the doctors asked Mrs. Davison, or any member of her immediate family, what medication she was taking, when, according to Dr. McGee, she remained lucid for 36 hours or more after Dr. McDaniel read the X-rays; 2) the record is devoid of any rational medical explanation (except for the testimony of Dr. Schwartz) as to when Mrs. Davison’s condition worsened to a degree necessitating removal of the caustic materials, perhaps by nonsurgical procedures, as opposed to when her condition became so acute as to preclude any removal, even by surgical means; 3) while the Defendants seek to excuse their nonemergency routine treatment in the instant situation on the basis of their successful treatment of Mrs. Davison’s prior stomach bezoar, the record is silent as to any threat of salicylate poisoning due to impaction of coated aspirin during the January 1977 experience; and 4) finally, and most telling of all, there is no evidence that even the simplest procedures, including the administration of meat tenderizers, which accounted for the successful treatment in January of 1977, were applied in June of 1977.

Surely, these negative or nondisclosed factors, which, when considered alone or in combination, coupled with the general agreement among all the medical experts that this large quantity of salicylate-pro-ducing poison should have been neutralized or removed as soon as possible, give rise to a reasonable inference that the first 24 hours following Dr. McDaniel’s Sunday morning X-rays was indeed a crucial period for appropriate treatment designed to diffuse this “medical time bomb.”

Ordinarily, the proximate cause issue is one for the jury; and it becomes a legal issue only where there is a total lack of evidence from which the factfinder may reasonably infer a direct causal relation between the culpable conduct and the resulting injury. Marshall County v. Uptain, 409 So.2d 423 (Ala.1981). We are unable to hold, as a matter of law, that the totality of the instant circumstances falls short of Plaintiffs’ requisite proof with respect to the element of proximate cause.

THE APPEAL AS TO DR. ESHAM

Dr. Esham’s requested jury Charge No. 36 reads:

“The Court charges the jury that if you are reasonably satisfied from the evidence in this case that the injuries and damages to the plaintiffs were the proximate result of the acts or omissions of others over whom the Defendant, Dr. Esham, had no control and who were not acting for him, then you cannot return a verdict against Dr. Esham in this case.”

Appellants summarize their argument in opposition to this jury instruction as follows:

“Plaintiffs excepted to Defendant Es-ham’s Charge No. 36, on the grounds that it was [an] incorrect statement of law in that it failed to give proper consideration to combined and concurring negligence. The Court in giving Defendant Esham’s Charge No. 42 charged the jury that a non-party to the case, the radiologist for the Mobile Infirmary, was not one whose negligence was to be considered as combining and concurrent with the negligence of Defendant Esham. The Plaintiffs’ Charge No. 2 charged the jury that if one or more persons were negligent, each negligent person would be liable for the resulting injury and the negligence of each would be deemed the proximate cause of the injury. In giving Defendant Esham’s Requested Charge No. 36 along with Plaintiffs’ Requested Charges 2 and 4, the Judge charged the jury that if another’s acts or omissions caused injury to the Plaintiff and Dr. Esham had no control nor were they acting for him, then the jury could not return a verdict against Dr. Esham in the case. This is contrary to the charges on combined and concurring negligence for under that doctrine Dr. Esham would not have to have any control nor would there have to be any agency for the negligence of others to combine and concur with his.’.’

Dr. Esham, citing Wood Chevrolet Company v. Bank of the Southeast, 352 So.2d 1350 (Ala.1977), 2A C.J.S. Agency § 6 (1972), and Alabama Pattern Jury Instructions — Civil, § 3.00 ,(1974), summarizes his defense of Charge No. 36 as follows:

“Defendant’s charge No. 36 did nothing to abrogate the Plaintiffs’ charges on combined and concurring negligence but simply told the jury that Dr. Esham could not be held liable for the acts of others over whom he had no control and who were not acting for him .... This had nothing to do with the combined and concurring negligence charges of the Plaintiff, and when the entire charge of the Court is considered, the charge No. 36 was in no way confusing or misleading.”

Here, again, the parties agree on the applicable law, but disagree whether this instruction, in the context of this case, was erroneous or misleading. We have no doubt that Dr. Esham’s counsel intended to have the court instruct the jury that Dr. Esham could not be held liable for the negligence of others who were not acting on his behalf; that is, it was intended simply as a charge with respect to the issue of agency. To be sure, in other contexts, it may have been susceptible to no other reasonable interpretation; but, in the instant context, it was a misstatement of the applicable law.

Rather than being a simple agency charge (i.e., that Dr. Esham could not be liable for acts of others not his agents), Charge No. 36 says in effect: If Plaintiffs’ injuries were caused by others, not his agents, then Dr. Esham himself could not be liable. Under the law of combining and concurring negligence, however, Dr. Es-ham may be liable for his own negligence, notwithstanding the fact that others, not his agents, are also liable for their negligence.

Marshall County v. Uptain, 409 So.2d 423 (Ala.1981), approved the following charge:

“Proximate cause is also defined as that cause, which in the natural and probable sequence of events and without the intervention of any new or independent cause, produces injury, and without which, such injury would not have occurred. If one is guilty of negligence, which concurred or combined with the negligence of another, and the two combine to produce injury, each negligent party is liable for the resulting injury, and the negligence of each will be deemed the proximate cause of the injury.
“If you find that the sole proximate cause of the plaintiffs injury was the negligence of Judy Kaylor Phillips, then the plaintiff cannot recover against Marshall County. If, however, you find that the proximate cause of the plaintiffs injury was the combined negligence of Judy Kaylor and Marshall County, then the plaintiff could recover against Marshall County.” 409 So.2d at 425.

When the approved charge in Up tain is compared with the given instruction in the instant case, the deficiency in the charge under review becomes readily apparent, because of its lack of any reference to combining or concurring negligence. Cf, also, the given requested charges disapproved in Coggins v. Fuller, 284 Ala. 44, 221 So.2d 681 (1969), virtually identical to the given requested charges in this case.

Charge No. 36, as given, does not take into account the well-recognized principle of tort law that where separate causes act contemporaneously to produce a given result, the causes of injury are concurrent within the rule making separate wrongdoers equally liable for the resultant injury; and this rule operates wholly independent of the law of principal and agent. Aplin v. Dean, 231 Ala. 320, 164 So. 737 (1935). See, also, A.P.J.I. Civil §§ 28.04 through .06, and § 3.00. Despite the trial court’s earlier correct instructions on the law of combining and concurring negligence, the omission of this vital principle from Charge No. 36, which was specifically pointed out by the objection of Plaintiffs’ counsel pursuant to A.R.Civ.P. 51, rendered the trial court’s giving of this charge reversible error. Coggins, supra, citing Baggett v. Sellers, 282 Ala. 235, 210 So.2d 796 (1968).

In conclusion, we concur with the trial court’s order granting Dr. Esham’s motion for a directed verdict on Plaintiffs’ claims for wanton misconduct. We view the evidence as falling short of the requisite quantum of proof from which the jury could reasonably infer that Dr. Esham was guilty of an intentional act, or an intentional failure to act, which was likely to result in injury to another. Bradshaw v. Simpson, 442 So.2d 66 (Ala.1983).

Therefore, we affirm that portion of the judgment below directing a verdict for Dr. Esham on Plaintiffs’ theory of wantonness; and we reverse the judgment and remand the cause for retrial as to both Defendants on Plaintiffs’ claims for negligence only.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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

MADDOX and FAULKNER, JJ., concur in part and dissent in part.

MADDOX, Justice

(concurring in part and dissenting in part).

I concur in the opinion insofar as it reverses the judgment of the. trial court which directed a verdict in favor of Mobile Infirmary. I dissent insofar as the opinion reverses the judgment entered upon a jury verdict rendered in favor of Dr. Richard H. Esham.

FAULKNER, J., concurs.

      . “Ecotrin" is a chemically coated aspirin, designed to pass into and through the stomach cavity before dissolving in the small intestine. It is often used in the treatment of arthritis for patients with high stomach acidity.

      . Mary Davison was admitted to Mobile Infirmary on Friday afternoon, June 24, 1977. X-rays were scheduled for Mrs. Davison on Saturday, but, because of her inability to ingest certain liquids necessary for X-rays at that .time, the X-rays were rescheduled and completed Sunday, June 26.

      .For the sake of brevity, we have taken the liberty of excluding certain extraneous and repetitious sentences and phrases from the quoted portions of the transcript.

      . Mary Davison was visited by Dr. Pennington (a partner of Dr. Esham) on Saturday and Sunday, June 25 and 26, and by Dr. Bodet on Monday, June 27. Dr. Esham did not personally see Mrs. Davison until Wednesday, June 29, 1977, five days after she was initially hospitalized.

      . While offered on Plaintiffs' behalf at trial, the deposition of Dr. Schwartz was taken by counsel for Dr. Esham.

      . For the sake of clarity, it should be noted that the reference in this question to "before this lady ever got sick” and "she didn’t start getting sick” all refer to Mrs. Davison’s relative state of well-being during her first several days in the hospital. Admittedly, she was not "well” when she entered the hospital. This comment is not intended as criticism of counsel’s question. He was simply using the same frame of reference as used by several of the doctors who testified.


author: PER CURIAM.

text:
    Ex parte Robert VINES. (re Ed YEARGAN v. Ed ALLEN, et al.).
    83-1174.
    Supreme Court of Alabama.
    Aug. 24, 1984.

      Calvin D. Biggers, Tuskegee, for petitioner.
    R.C. Wallace, Jr., Lafayette, and John W. Johnson, Jr., Lanett, for respondent.
   PER CURIAM.

A municipal election was held in Lafayette, Alabama, on July 10, 1984. Petitioner Vines was one of four candidates for mayor. Election officials certified the results of the election for mayor as follows:

Candidate Total Votes

Ed Allen 448

W. W. (Pete) Holcombe 165

Robert Vines 314

Ed Yeargan 277

On July 12, 1984, candidate Ed Yeargan filed an action for declaratory judgment in the Circuit Court of Chambers County against the other three candidates, asking the court to hold a hearing to determine whether there had been a malfunction of voting machine No. 4, which was designated for all voters whose last name began with letters T through Z of the alphabet. Yeargan alleged that the official report of the votes cast in machine No. 4 showed that he received no votes in that machine while in truth he had received legal votes, but because of a malfunction of the machine and not because of any fault of the other candidates, legal votes for his candidacy were not received. There were only four machines used in the election, and No. 4 was referred to by the trial judge as Box Four.

The trial court held a hearing at which all the candidates were present. The machine in Box Four was conclusively shown to have malfunctioned in that no votes cast for candidate Yeargan registered on the machine. Machine No. 4 was demonstrated before the trial court, and the lever by Yeargan’s name was pulled five times, but the machine did not register that action. Several witnesses testified that they had voted for candidate Yeargan in Box Four, and since the returns showed that he received no votes in that box, the trial court correctly concluded that he had been deprived of legal votes cast for him. The trial court, at the conclusion of the hearing and after examining the machine, expressly found that because the machine had malfunctioned and had not accepted legal votes cast for candidate Yeargan, a number of duly qualified electors had been disfranchised. The court also held that had candidate Yeargan received the legal votes cast for him, the results of the election would have been different. The court thereupon set aside the results of the July 10 election “in regard to Box Four” and ordered another election to be held on July 24, 1984, “wherein all electors who voted in Box Four on July 10, 1984, will be allowed to re-east their ballots in the mayor’s race. Only those persons which the poll lists indicate voted on July 10, 1984, will be allowed to vote on July 24, 1984.”

Petitioner Vines thereupon filed this petition, alleging that by its order the trial court exceeded its authority, asking that a writ of prohibition issue restraining the trial court’s exercise of equity jurisdiction, and seeking an order setting aside the trial court’s judgment of July 17, 1984. It is readily apparent that Vine’s second place position and, thus, his participation in the run-off election are vitally affected by the trial court’s order.

Election challenges are, but for few exceptions not present here, strictly statutory proceedings, and courts are expressly limited in the relief to be awarded in election contests. Walker v. Junior, 247 Ala. 342, 24 So.2d 431 (1945), and Ala.Code 1975:

“§ 17-15-6. Jurisdiction denied judges or courts exercising chancery powers in election contests; appeal.
“No jurisdiction exists in or shall be exercised by any judge, court or officer exercising chancery powers to entertain any proceeding for ascertaining the legality, conduct or results of any election, except so far as authority to do so shall be specially and specifically enumerated and set down by statute; and any injunction, process or order from any judge, court or officer in the exercise of chancery powers, whereby the results of any election are sought to be inquired into, questioned or affected, or whereby any certificate of election is sought to be inquired into or questioned, save as may be specially and specifically enumerated and set down by statute, shall be null and void and shall not be enforced by any officer or obeyed by any person; and should any judge or other officer hereafter undertake to fine or in any wise deal with any person for disobeying any such prohibited injunction, process or order, such attempt shall be null and void, and an appeal shall lie forthwith therefrom to the supreme court then sitting, or next to sit, without bond, and such proceedings shall be suspended by force of such appeal; and the notice to be given of such appeal shall be 14 days.”

We turn then to the statutory provisions governing municipal elections.

Section 11-46-69 sets out the grounds for which municipal elections may be challenged:

“§ 11-46-69. Contest of elections— Grounds; commencement of action.
“(a) The election of any person declared elected to any office of a city or town may be contested by any person who was at the time of the election a qualified elector of such city or town for any of the following causes:
“(1) Misconduct, fraud or corruption on the part of any election official, any marker, the municipal governing body or any other person;
“(2) The person whose election to office is contested was not eligible thereto at the time of such election;
“(3) Illegal votes;
“(4) The rejection of legal votes; or
“(5) Offers to bribe, bribery, intimidation or other misconduct calculated to prevent a fair, free and full exercise of the elective franchise.
“(b) Any contest of such an election must be commenced within five days after the result of the election is declared. Such contest shall be instituted in the manner prescribed by Section 17-15-29 and, except as otherwise provided in this article, all proceedings relative to contests of elections to municipal offices shall be governed by the provisions of articles 2 and 3, chapter 15, Title 17 of this Code, insofar as they are applicable.”

The trial court’s jurisdiction was invoked in this case by candidate Yeargan’s complaint in which he specifically alleged that legal votes had been rejected, § 11-46-69(a)(4), in Box Four. Petitioner Vines contends here, however, that the relief fashioned by the trial court is not authorized by statute, and that § 17-5-6 expressly prohibits the fashioning of equitable relief. We agree. Section 11-46-70 governs where, as here, no candidate received or would have received (but for the defect in the election process in Box Four) the requisite number of votes for election. Section 11-46-70 reads:

§ 11-46-70. Same — Trial; entry of judgment.
“If, on the trial of the contest of any municipal election, it shall appear that any person other than the one whose election is contested, received or would have received, had the ballots intended for him and illegally rejected been received, the requisite number of votes for election, judgment must be entered declaring such person duly elected, and such judgment shall have the force and effect of investing the person thereby declared elected with full right and title to have and to hold the office to which he is declared elected.
“If it appears that no person has or would have had, if the ballots intended for him and illegally rejected had been received, the requisite number of votes for election, judgment must be entered declaring this fact, and such fact must be certified to the municipal governing body and the vacancy in the office, election to which had been contested, shall be filled in the manner prescribed by law for filling the vacancy in such office.
“If the person whose election is contested is found to be ineligible to the office, judgment must be entered declaring the election void, and the fact must be certified to the municipal governing body. The vacancy in such office shall be filled in the manner prescribed by law.
“If the party whose election is contested is found to have been duly and legally elected, judgment must be entered declaring him entitled to have and to hold the office to which he was so elected.”

Candidate Yeargan did not contend, nor could he, that had the votes intended for him not been illegally rejected in Box Four, he would have received the requisite number of votes for election as mayor (one half of the votes cast plus one). Instead, it was his contention that if he received the number of votes to which he was entitled, he would be eligible for a run-off position in the coming election.

Therefore, the second paragraph of § 11-46-70 controls, and, once it was shown that no person “ha[d] or would have had, if the ballots intended for him and illegally rejected had been received, the requisite number of votes for election,” the trial court should have entered judgment “declaring this fact.” Thereupon, the court should have ordered another election held to fill the office of mayor.

There is simply no statutory authority for holding an election limited to Box Four and also limited to those electors who voted in the July 10 election.

The trial judge correctly declined to substitute Mr. Yeargan for Mr. Vines in the run-off election, even though he found, and the evidence supported his conclusion, that had Mr. Yeargan received the legal votes cast for him, the results of the election held on July 10 would have been different. The only statutory remedy, however, was to order another election.

In Turner v. Cooper, 347 So.2d 1339 (Ala.1977), the Court said:

“Contests of elections are statutory creations, except insofar as we have noted, and the statutory requirements must be strictly complied with. Longshore v. City of Homewood, 277 Ala. 444, 171 So.2d 453 (1965); Black v. Pate, 130 Ala. 514, 30 So. 434 (1920); Pearson v. Alverson, 160 Ala. 265, 49 So. 756 (1909).”

The good faith of all the parties, as well as the trial judge, is apparent in this case, and we appreciate the trial court’s effort to fashion what appears to be a simple solution to an unfortunate incident. However, the legislature has restricted judicial authority to do so. No remedy exists by statute under the facts of this case, other than the holding of another election for the office of mayor of Lafayette under the provisions of the second paragraph of § 11-46-70, Code 1975.

If one of the candidates receives a majority as defined by § 11 — 46—55(b), he shall be certified as elected thereunder. If no candidate receives a majority of all the votes cast in such election, then pursuant to § 11 — 46—55(d), a run-off election shall be held between the two candidates who received the most and second most votes.

The petition for writ of prohibition is granted.

WRIT GRANTED.

All the Justices concur, except FAULKNER, J., who is recused.