author: PATTERSON, Chief Justice,

text:
    James Frank BETHUNE, et ux. v. John W. TURNER and Marsha McCormick and Magnolia Towers, Inc.
    No. 55237.
    Supreme Court of Mississippi.
    Dec. 19, 1984.

      Jack R. Davis, Claude W. Milstead, Jackson, for appellants.
    Thomas M. Murphree, Jr., Watkins & Eager, Robert E. Swindoll, Sr., Jackson, for appellees.
    Before PATTERSON, C.J., and DAN M. LEE and ROBERTSON, JJ.
   PATTERSON, Chief Justice,

for the Court:

James Frank Bethune and his wife Ruby Moon Bethune filed suit in the Circuit Court of the First Judicial District of Hinds County against John W. Turner, Marsha McCormick and Magnolia Towers, Inc., for assault and battery. All defendants filed answers and motions to dismiss, and defendants McCormick and Turner filed counterclaims for assault and battery. At the conclusion of the plaintiff’s case-in-chief, the court on the defendants’ motion peremptorily instructed the jury in favor of defendants Turner and McCormick on their counterclaims and allowed the jury to consider the issue of damages on the separate counterclaims. The jury then assessed damages for McCormick and Turner at $1,000.00 and $1,500.00 respectively.

The Bethunes appeal, assigning four errors:

“1. The trial court erred in permitting the testimony of appellees and precluding the testimony of appellants through invocation of Rule 3.04, Uniform Circuit Court Rules;

2.The trial court erred in unconstitutionally depriving appellants of property without due process of law;

3. The trial court erred in overruling appellants’ motion for new trial;

4. The trial court erred in directing a verdict for appellee Marsha McCormick and against appellant Ruby Moon Bethune in that a question of fact was for the jury to decide and the directed verdict was against the greater weight of the evidence.”

We dispose of this case on the Bethunes’ first contention: that the trial court improperly invoked Uniform Circuit Court Rule 3.04 to preclude their testimony. A brief synopsis of the testimony prior to James Frank Bethune’s attempt to testify is in order.

The plaintiffs first called John Turner as an adverse witness for the sole purpose of establishing the master-servant relationship between Turner and Magnolia Towers. From this evidence, which was not controverted, it was established that Turner managed the property for Magnolia Towers, Inc. Subsequently Turner’s attorney directly examined him concerning the facts of the altercation in question. Stated briefly, Turner’s testimony was that on the evening of May 14, 1981, Turner and his girlfriend, Marsha McCormick, were watching TV in Turner’s apartment in Magnolia Towers. On three different occasions Bethune approached Turner’s door and complained loudly about a fire hose in the hall. The first two times Turner explained there had been a fire that evening and asked Bethune to leave. When Bethune came to the door a third time, Turner opened the door and Bethune struck him on the side of his face. Bethune attempted to strike Turner again but Turner resisted and a brawl ensued. According to Turner,

We went up against the wall — the east side of the wall and I think we fell to the floor. The next thing I knew, Mrs. Bethune was on my back, screaming and hollering and scratching, and I was hollering at Marsha — at this time louder and more frequent — to get the guard and get the police. She had been trying, I think — I don’t know for sure but I think she’d been trying to get the police by phone. Anyhow, she came running out in the hall and pulled Mrs. Bethune off my back.

A tenant phoned the police, who arrived ■shortly thereafter and arrested the Be-thunes. Turner and McCormick went to the police station and pressed assault charges. Turner described his injuries as follows, “I had a big knot on the left side of my jaw; I had scratches on my back; I could hardly walk because of my back— him throwing me around and us wrestling.”

The Bethunes’ second witness was Fred Shanks, a college friend of Frank Bethune, who testified he had seen the Bethunes approximately an hour and a half before the altercation and that in his opinion they were not inebriated at that time. However, the Bethunes called as witnesses two other friends for the apparent purpose of testifying that the Bethunes were peaceful and law abiding citizens. On both occasions the court sustained the objection of Turner’s attorney to such testimony.

When Bethune took the stand, Turner’s attorney objected on the ground Bethune was an incompetent witness under the Uniform Rules of Circuit Court Practice since Bethune had offered four witnesses before taking the stand. The court sustained the objection and directed Bethune to step down.

While the general rule is that the trial court has discretion to enforce Rule 3.04 of the Uniform Rulés of Circuit Court Practice, the rule does not strictly apply to parties to the cause. Bernheim v. Dibrell, 66 Miss. 199, 5 So. 693 (1889). That case stated, “Where a party proposes to testify in his own behalf it is within the power of the court to require him to be first sworn, but this is the extent of the power....” 66 Miss. at 202, 5 So. at 693.

On similar facts the court reaffirmed the Bernheim holding in Moore v. Chambers, 199 So.2d 261 (Miss.1967). In Moore, the defendant attempted to testify after having heard the testimony of two of his own witnesses. Plaintiff’s counsel objected, and the court precluded the defendant’s testimony. We reversed, stating, “This Court has consistently followed the reasoning ... that before a party litigant can be kept from testifying ‘he must be given the alternative of testifying first or leaving the courtroom.’ The appellant was offered no such alternative in the instant case.” 199 So.2d at 263, citing VI Wigmore on Evidence, Section 1842 (3d ed. 1940). In explanation of its holding the court cited the following pertinent language from Wilson v. Peacock, 111 Miss. 116, 120-21, 71 So. 296, 297-98 (1916):

“Mere rules of practice should never stand in the way of permitting the jury to hear all the witnesses, and in this case the record discloses that nothing save a rule of practice denied this substantial mle of justice to the defendants. The trial court has the power, and should always exercise it, to relax or suspend all court rules, to the end that litigants may be assured of a full and fair hearing of this side of the controversy. The record does not show any reason why the discovery of the actual tmth would have been imperiled by the defendant’s testimony, and, in the absence of such showing, we think the trial court erred in refusing to permit the witness to testify.” (Emphasis added.)
199 So.2d at 263.

In this case the record does not indicate Bethune was granted the alternative of testifying first or leaving the courtroom.

We observe further plaintiffs’ counsel questioning of the four witnesses called prior to Bethune had little if anything to do with the events of the actual physical quarrel which was the basis of the suits and counter-suits. For this reason we do not think “the discovery of the actual truth would have been imperiled by the defendant’s testimony ...” 199 So.2d at 263.

We are of the opinion strict adherence to the above rule of practice not only denied Bethune the right of having the jury hear his testimony as the complainant but also precluded him from testifying as a counter-defendant. For the reasons stated we reverse the judgment of the trial court and remand the cause for a new trial on the merits.

REVERSED AND REMANDED.

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


source: Caselaw Access Project

author: JONES, Justice. EMBRY, Justice JONES, Justice.

license: Public Domain

text:
    Lavoid D. JOHNSON and Pauline Johnson v. James G. McMURRAY, et al.
    82-413.
    Supreme Court of Alabama.
    Sept. 7, 1984.
    As Modified on Denial of Rehearing Nov. 9, 1984.

      Joseph M. Cloud of Cloud & Cloud, and Robert H. Ford of Brinkley & Ford, Huntsville, for appellants.
    Harold F. Herring, H. Harold Stephens, and William W. Sanderson, Jr. of Lanier, Shaver & Herring, Huntsville, for appellee James G. McMurray.
    John S. Key of Eyster, Key, Tubb, Weaver & Roth, Decatur, for appellee James H. Griffith, M.D.
    Michael A. Worel of Emond & Vines, Birmingham, for amicus curiae The Alabama Trial Lawyers Ass’n.
   JONES, Justice.

This is a medical malpractice case. Plaintiffs/Appellants Lavoid D. and Pauline Johnson appeal from a judgment for Defendants Dr. James G. McMurray and Dr. Thomas G. Griffith, following a jury verdict. We reverse and remand.

FACTS

In May 1979, Lavoid Johnson, 68 years old, was referred by his family physician to Dr. James G. McMurray, a Huntsville urologist, for treatment of heart complications, emphysema, and swelling of the ankles, legs, and feet. After tests were performed, Mr. Johnson’s condition was diagnosed as a benign enlarged prostate, for which he was hospitalized. Upon removal of the prostate tissue and further examination, Dr. McMurray discovered “two nodules of well-differentiated carcinoma,” or cancer.

During the lymph node surgery, a 4" X 4" surgical sponge was left in Mr. Johnson’s lower abdomen. On August 28, 1979, Dr. McMurray advised Mr. Johnson of the presence of the sponge, as well as the need for its immediate removal. Because he objected to Dr. McMurray’s participation in the sponge removal surgery, Mr. Johnson requested, through his lawyer, that Dr. McMurray recommend other surgeons for the surgery. Dr. McMurray did so, and Mr. Johnson chose Dr. Thomas Griffith, a Huntsville urologist.

The testimony is in conflict as to the extent of Dr. McMurray’s involvement in the operation to remove the sponge. Mrs. Johnson testified that she told Dr. McMur-ray on three separate occasions that he was not to participate in any way in her husband’s surgery. Dr. Griffith testified that he told the Johnsons that he would not perform the operation unless Dr. McMur-ray was present during the surgery for assistance, and that the Johnsons did not object to his presence. According to the hospital report, Dr. McMurray signed as chief surgeon for the sponge removal operation. Also, Dr. McMurray’s name appears on the operating room registry and he dictated the operating report. Additionally, the record is clear that Mr. Johnson refused to sign a consent form with Dr. McMur-ray’s name on it, but did sign the form with Dr. Griffith’s name designated as the surgeon. The form reads, in pertinent part, as follows:

“1. I, Lavoid H Johnson, the un-(Patient, or nearest relative) dersigned, authorize Dr. F Griffith (Physician) and his assistant to perform, under anesthetic deemed advisable, the operation stated above on Lavoid D. Johnson, (Name of patient) and also, to perform such additional procedures as may be considered therapeutically necessary, based upon the findings in the course of the operation. Any tissue surgically removed may be disposed of by the physician, or assisting physician, or the hospital, in accordance with its accustomed practice.
“(Signed) Lavoid D. Johnson”

Shortly after the sponge removal surgery, Mr. Johnson was released from the hospital. He did not see Dr. Griffith after discharge, but did see Dr. McMurray. Throughout the remainder of 1979, he suffered from kidney infections and swelling in his legs. Upon his readmission to the hospital in December, it was discovered that the blood supply in his leg had been restricted, necessitating the amputation of his leg on January 1980.

STATEMENT OF THE CASE

The Johnsons filed suit against Dr. McMurray (later amended to include Dr. Griffith) alleging fraud, conspiracy to commit fraud, assault and battery, conspiracy to commit assault and battery, negligence, and wantonness. The trial court, at the conclusion of all the evidence, directed a verdict as to both Defendants on the Plaintiffs’ claims of fraud and conspiracy to commit fraud. The jury returned a verdict in favor of both Defendants on the remaining claims. This appeal followed.

THE DISPOSITIVE ISSUE

The primary issue presented on appeal is whether the trial court erred in directing a verdict for Defendants on the claims of fraud and conspiracy to commit fraud.

Appellants’ claim of error on this issue is grounded on Code 1975, § 6-5-102, which provides:

“Suppression of a material fact which the party is under an obligation to communicate constitutes fraud. The obligation to communicate may arise from the confidential relations of the parties or from the particular circumstances of the case.”

DECISION

Although the “Alabama Medical Liability Act” does not explicitly include fraudulent concealment as a cause of action, this Court has recognized such a cause of action against a physician and hospital in Horn v. Citizens Hospital, 425 So.2d 1065 (Ala.1982). The plaintiff in Horn began experiencing abdominal pain in 1972—one year following her appendectomy. It was not until 1979 that X-rays revealed the presence of a needle remnant at the site of the appendectomy. The trial court granted the defendants’ motion for summary judgment based solely on the statute of limitations defense. This Court affirmed, reasoning, under the facts of that case, that § 6-5-482(b), by its own terms, had pre-empted the fraudulent concealment statute of limitations and set the outer limits for the commencement of the action at four years.

Nevertheless, in its rationale for so holding, the Horn Court recognized fraudulent concealment as the basis for a medical malpractice context cause of action. Moreover, we find no justification for not following the traditional rules of statutory construction, which mandate that the two statutes—§ 6-5-102 and § 6-5-482—be construed in pari materia. Certainly, the holding in Horn—that the express wording of § 6-5-482 precluded the operation of § 6-5-102 as against the contention that the latter statute extended the statute of limitations—does not suggest that the medical malpractice statute has abrogated fraudulent concealment as the basis for a cause of action. To the same extent, see Benefield v. F. Hood Craddock Clinic, 456 So.2d 52 (Ala.1984).

Although silence ordinarily does not constitute fraud, in dealings between persons standing in a confidential relationship, the law, as codified in § 6-5-102, imposes an obligation on the part of the one to safeguard the interests of the other; and the withholding of material facts is a breach of that duty and constitutes actionable fraud. Chapman v. Rivers Construction Co., 284 Ala. 633, 227 So.2d 403 (1969).

This Court has determined that the relationship between a doctor and his patient is a “confidential” one. Hudson v. Moore, 239 Ala. 130, 194 So. 147 (1940). The policy considerations for confidentiality in the doctor/patient relationship are grounded in the necessity on the part of the patient to fully disclose to his doctor all information essential to the patient’s proper diagnosis and treatment, and in the corresponding duty on the part of the doctor to fully disclose to the patient facts necessary to enable the patient to intelligently exercise his right to control, to the extent feasible, his own health care. The John-sons ground their claim for fraudulent suppression on the doctors’ failure to inform them that Dr. McMurray would perform, or participate in, the sponge removal operation on Mr. Johnson. They point to the tendencies of the evidence indicating that Dr. Griffith knew that Mr. Johnson did not want Dr. McMurray to take any part in the second operation; and, yet, that at all times, both doctors intended for Dr. McMurray to participate in the surgery.

Additionally, they contend that the jury could reasonably infer from the evidence that Dr. McMurray failed to inform the Johnsons that he would be participating in the surgery, knowing that the Johnsons were adamant about his nonparticipation. At the same time, contend the Johnsons, Dr. McMurray intended to participate in the operation, with or without Mr. Johnson’s consent; and that if he could not convince Mr. Johnson to sign the consent form with his name on it, then he would convince Mr. Johnson to sign the form with Dr. Griffith’s name on it, knowing that he would perform, or participate in, the surgery, under the guise of being Dr. Griffith’s “assistant,” as designated by Dr. Griffith’s consent form.

This evidence, coupled with the undisputed fact that Mr. Johnson rejected Dr. McMurray’s initial offer to perform the removal surgery, sought out Dr. Griffith for that purpose, and declined to sign Dr. McMurray’s consent form, is sufficient to support the Johnsons’ claims for fraud.

Finally, the Appellees’ insistence that the trial court properly directed a verdict as to the fraud claims, because of the missing element of damages, is misplaced. If the jury is reasonably satisfied from the evidence that Mr. Johnson’s right to withhold consent to Dr. McMurray’s active participation in the removal operation was violated, then it is for the jury to determine what damages, if any, Mr. Johnson suffered. If the jury finds actual damages, its award, within its discretion, may also include punitive damages.

The point to be emphasized here is that, if the jury finds the requisite element of damages, it is not precluded, as a matter of law, from awarding damages for fraudulent concéalment of Dr. McMurray’s participation, even if it also finds that the removal surgery was successful and did not contribute to Mr. Johnson’s subsequent loss of his leg. Such latter finding, if made by the jury, may be considered in its assessment of damages on the fraud claim, but it is not controlling. In other words, our holding does not eliminate the element of damages as one of the essential elements of a fraud claim in the instant context. Rather, it is our holding that the issue of damages, under the circumstances of this case, is one for the jury as in fraud cases generally.

Therefore, because we find sufficient evidence to support each of the elements of fraudulent suppression of a material fact, we hold that the trial judge was in error in directing a verdict for each Defendant on this claim.

OTHER ISSUES

Although we reverse the judgment on the issues of fraud and conspiracy to commit fraud, we address two other issues raised by the Appellants that may recur upon retrial of the cause:

1) Whether the trial court erred in refusing to allow the Plaintiffs’ expert witness to refer to a pamphlet entitled “Current Opinions of the Judicial Council of the American Medical Association”; and

2) Whether the court erred by charging the jury that Dr. McMurray could not be liable for assault and battery if the Plaintiffs gave their consent to Dr. Griffith for the performance of the sponge removal surgery.

1. The “Learned Treatise" Issue

The rule in Alabama, generally, is that “a learned treatise, essay, or pamphlet on a subject of science or art, which is testified to by an expert on,the subject as being a standard or trustworthy authority on the subject, is admissible as an exception to the hearsay evidence rule.” C. Gamble, McElroy’s Alabama Evidence, § 258.01(1) (3d ed. 1977). Extracts from the treatise, however, “are not admissible unless the treatise is first approved by an expert as authoritative and standard,” and is relevant to the issue for which it is presented in the particular trial. C. Gamble, supra, § 258.01(2), (3).

In this case, the Plaintiffs attempted to introduce into evidence a pamphlet published by the American Medical Association entitled “Current Opinions of the Judicial Council.” While it is well settled in this State that medical treatises are admissible, as a precondition or predicate to their admission, the rule requires that the party seeking to introduce medical books authenticate them as “standard works within that profession.” Comment, Learned Treatises as Direct Evidence: The Alabama Experience, 1967 Duke L.J. 1169, 1171 (1969).

We have searched the record thoroughly for some indication that the Plaintiffs’ lawyer properly authenticated this pamphlet. The question that most closely bears on the requisite predicate is: “Does [the pamphlet] have within it pronouncements of standards of care for patients by doctors?” While that question is an appropriate preliminary inquiry, it falls short of the ultimate question: “Is the pamphlet recognized as an authoritative and standard work in the medical profession?” The requirement of the rule that the expert witness respond to this all-important question is more than a matter of form or a mere technicality.

What the writer in the Duke Law Journal called “The Alabama Experience” has been hailed for its liberality in relaxing the burden of proof as to scientific and artistic matters. But this liberality cannot be extended to preclude the necessity for authentication of the proffered publication as a recognized standard work within the particular field of art or science. This requisite predicate is the very foundation of the rule itself. Indeed, absent this authentication, there is no proof that the proffered document is in fact a learned treatise; thus its admissibility, as an exception to the hearsay rule, fails.

2. The Jury Charge Issue

Appellants also claim as error the trial judge’s charge to the jury as follows:

“If you are reasonably satisfied from the evidence that the Plaintiff La void Johnson gave his consent to Thomas Griffith for the sponge removal operation and that Dr. Griffith pursuant to that consent, was authorized, under the evidence in this case, to choose the Defendant Dr. McMurray as his assistant, then you cannot find that the Defendant Dr. McMur-ray was guilty of an assault and battery. ...”

At the time the above charge was initially given, Appellants made no objection. During deliberations, the jury asked the court for a recharge on the issue of assault and battery. The trial judge responded by giving the very same charge; thereupon, Appellants objected.

Recently, in Reece v. Simpson, 437 So.2d 68 (Ala.1983), this Court held:

“First, we note that no objection was made to the court’s oral charge and, therefore, we would be powerless to reverse even if the plaintiff's argument was meritorious. As we held in Record Data International, Inc. v. Nichols, 381 So.2d 1 (Ala.1979):
“ ‘Rule 51, ARCP specifies that error may not be assigned for the giving of a defective charge unless the party seeking to assign error objects to that portion of the charge which is defective before the jury retires to consider its verdict, and specifically states the matter to which he objects and the grounds of his objection....
“ ‘Rule 51 affords the trial court an opportunity to correct any error in its charge before it becomes error with injury to reversal.’
381 So.2d at 7.”

In Reece, we determined that the charge given by the trial judge was correct, and that plaintiff’s objection, even if timely, would not have been a meritorious one. Although the charge is hypothesized upon the jury’s belief of the evidence favorable to the Defendants, we think the charge as given is confusing and misleading in light of the evidence that the Johnsons affirmatively demanded that Dr. McMurray not participate in any manner in the sponge removal surgery. (This point of confusion is demonstrated by the jury’s inquiry during deliberations.) A jury question was presented with respect to the propriety of Dr. Griffith’s choice of Dr. McMurray as his “assistant” for the sponge removal surgery in light of Mr. Johnson’s insistence that he demanded of both doctors that Dr. McMurray take no part in the surgery. And we are confident that the trial court will encounter no difficulty in making this clear upon retrial.

Ordinarily, a doctor is within his. rights in choosing whomever he desires as his assistant, as long as the patient does not object. In this case, however, the jury was not bound, as a matter of law, to interpret Mr. Johnson’s execution of Dr. Griffith’s consent form as carrying with it the patient’s consent for Dr. McMurray to act as Dr. Griffith’s assistant, in view of the affirmative proof that Mr. Johnson did object. Therefore, because the charge is subject to being interpreted as “transferred intent,” as a matter of law, we hold that the trial judge erred in so instructing the jury. If this jury instruction had been properly objected to, and its misleading tendencies called to the trial court’s attention, the Johnsons’ claim of reversible error would have been meritorious.

CONCLUSION

We have reviewed closely each of the remaining issues presented; examined the voluminous record; considered each of the adverse rulings by the trial judge which are apt to recur on retrial; and we find no further error. For the error earlier noted, however, the judgment of the trial court is reversed and this cause is hereby remanded to the trial court for further proceedings against both Defendants consistent with this opinion.

REVERSED AND REMANDED.

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

MADDOX, FAULKNER, ALMON and EMBRY, JJ., dissent.

EMBRY, Justice

(dissenting):

I cannot agree with the majority that the trial court erred in directing a verdict for defendants on the Johnsons’ claims of fraud and conspiracy to commit fraud. Great reliance is placed upon Horn v. Citizens Hospital by the majority in reversing because of the trial court’s action regarding those claims. That reliance is grossly misplaced. Rather than recognizing a cause of action for fraudulent concealment, the Horn issue was whether fraudulent concealment could toll the statute of limitations as set out in § 6-5-482(b) of the Code. Indeed, I find no cases where an action for fraud against a doctor, for medical malpractice, has resulted in recovery absent evidence of fraudulent misrepresentation. The only alleged false misrepresentation was in connection with Dr. McMurray’s future participation in the surgery to remove the sponge. There is no evidence of the required then-present intent not to perform (by intending to participate in the future surgery). Stated otherwise, there is no evidence that McMurray falsely misrepresented a then-present existing fact. See Purcell Company v. Spriggs Enterprises, Inc., 431 So.2d 515 (Ala.1983). It should be noted that Mr. Johnson did not seek Dr. Griffith. Dr. McMurray procured his services for Mr. Johnson.

Contrary to the view of the majority, the jury could not have found damages had the question been submitted to it; there was no evidence of damages and none from which damages could be inferred.

Regarding the jury instruction issue: it shows that Dr. Griffith would not agree to perform the surgery unless Dr. McMurray assisted. It is logical to assume that the person who did the first surgery would be the most desirable assistant. Thus, the charge was correct and the jury’s acquittal on the assault and battery claim was, of necessity, a conclusion that Johnson had consented to McMurray’s participation in the sponge removal surgery.

Having found no error, I can only conclude that the judgment below should be affirmed.

MADDOX, FAULKNER and ALMON, JJ., concur.

ON APPLICATION FOR REHEARING

JONES, Justice.

OPINION MODIFIED; APPLICATION FOR REHEARING OVERRULED.

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

MADDOX, FAULKNER, ALMON and EMBRY, JJ., dissent.

      . As we construe the Plaintiffs’ statement of their respective claims (and as they concede on appeal), each of Mrs. Johnson’s claims is derivative merely, seeking damages only for loss of consortium.

      . Ordinarily, a claim for conspiracy to commit a wrong, and a claim for commission of that wrong, are not necessarily provable by the same evidence; i.e., the burden of proving the one is not necessarily met by proving the other. Here, however, the one (the alleged conspiracy to commit fraud) cannot exist without the other (the alleged commission of fraud), because the burden of proving fraudulent suppression, under the peculiar facts of this case, is met only if the proof also shows that the Defendants were acting in concert with respect to the alleged fraudulent concealment. Therefore, we need address only the single issue of Plaintiffs' fraud claim.

      . Because of Horn’s and Benefield's holdings, applying the medical malpractice act’s statute of limitations, it is worthy of note that the shortest period of limitations here applicable is two years, with the outer limits of four years (as opposed to one year from the date of discovery). The amendment adding Dr. Griffith was filed well within the prescribed period. Thus, the statute of limitations is not an issue in the instant case.

      . We note receipt, after release date of the original opinion, of the "Suggestion of Death” of Mr. Johnson. His death has no effect on these appellate proceedings. See A.R.A.P. 43(a). But, upon remand of this cause to the circuit court, the operative effect of A.R.Civ.P. 25 is invoked.


author: BEATTY, Justice.

text:
    MATRIX-CHURCHILL v. Richard SPRINGSTEEN. Richard SPRINGSTEEN v. MATRIX-CHURCHILL.
    Nos. 83-478, 83-479.
    Supreme Court of Alabama.
    Sept. 28, 1984.
    Rehearing Denied Nov. 30, 1984.

      Danny D. Henderson and John C. Hay, III of Williams, Spurrier, Rice, Henderson & Grace, Huntsville, for appellant cross-ap-pellee.
    Gerald R. Paulk of Livingston, Porter & Paulk, Scottsboro, for Richard Springsteen.
    W.W. Haralson, Scottsboro, for Cyril Bath Co.
   BEATTY, Justice.

The issue in this case concerns successor corporation liability and grows out of a products liability action filed by plaintiff Springsteen against Matrix-Churchill and the Cyril Bath Company, Inc., under the Alabama Extended Manufacturer’s Liability Doctrine. Matrix-Churchill cross-claimed seeking a declaratory judgment as to which of the defendant corporations would be liable to Springsteen should he prevail upon his claim. The trial court, sitting non-jury, found that Matrix-Churchill would be liable and dismissed the Cyril Bath Company, Inc., (Cyril Bath), directing an entry of final judgment pursuant to Rule 54(b), A.R.Civ.P. Both Matrix-Churchill and Springsteen appeal. We reverse and remand.

The original Cyril Bath was founded as a sole proprietorship in 1914 by Cyril J. Bath. This business specialized in manufacturing metal forming and bending equipment. In 1941, the company was incorporated in Ohio.

In 1969, a British company, Tube Investments, Ltd., through its subsidiary, Matrix-Churchill, purchased substantially all of the outstanding common stock, 99.7% of the “old” Cyril Bath.

In 1972 or 1973, the “old” Cyril Bath began to manufacture an automobile repair lift, the “Bradbury Lift.”

Sometime in 1975, Cyril Bath was advertised for sale, and, in 1976, negotiations began with Fairfield Machinery Company (Fairfield) of Columbiana, Ohio, for the purchase and sale of the entire operation of the “old” Cyril Bath, with the exception of the “Bradbury Lift” line of equipment. Ultimately, the agreement of purchase and sale was consummated, in June 1976. As evidence thereof, Cyril Bath, as “Seller,” Matrix-Churchill, and TCBC Company, as “Buyer,” executed an agreement containing some 36 pages of provisions.

TCBC was a corporation created in April 1976 as a vehicle for acquiring “old” Cyril Bath, and the name, TCBC, was intended as a temporary name while the purchase was being effected. The stockholders of TCBC were Fairfield and Robert C. McFarland, president of TCBC Company.

The purchase agreement recognized that the “old” Cyril Bath organization involved “separate identifiable businesses,” the Bradbury lift business, on the one hand, and “the manufacture and sale of press brakes, stretch forming machinery, and contract forming services, on the other hand. It was this second business that was the subject of the sale agreement. The purchase price was $802,958. This amount allocated $702,958 to the purchased assets and the remainder to the value of an option to purchase the land and building of the “old” Cyril Bath. A press release was delivered to the Cleveland Plain Dealer newspaper to the effect that Fairfield, through a subsidiary, “will purchase a substantial portion of the assets and business of Cyril Bath,” which was described as “a manufacturer of metalforming machinery [which] also does contract work.” It added:

“According to Mr. Alex Shashaty, President, Fairfield intends to continue the present operations of The Cyril Bath Company, and believes that significant growth will result from this acquisition.”

The purchase and sale agreement included the sale of the name “The Cyril Bath Company.” Thus approximately one month after the sale, TCBC changed its name to Cyril Bath, referred to hereinafter as “new” Cyril Bath.

The agreement also provided that the seller, “old” Cyril Bath, would change its name to one not similar to Cyril Bath. Pursuant thereto, on June 7, 1976, “old” Cyril Bath changed its name to AQL, Inc. The only assets owned by AQL, Inc., at that time were the plant and building which were subject to the option purchased by “new” Cyril Bath.

The agreement also contained a non-competition clause whereby “old” Cyril Bath and Matrix-Churchill agreed not to engage directly or indirectly with the business conducted by TCBC, later “new” Cyril Bath, the business described as “the manufacture and sale of press brakes, stretch forming machinery and contract forming services and commercial use thereof.”

Additionally, the agreement contained the following disclaimer:

“Section 1.02. Buyer is expressly not assuming any liabilities of Seller whatsoever except with regard to:
“(a) Performance after the Closing of the leases of tangible chattel property listed on Exhibit ‘D’;
“(b) Performance after the Closing of the license agreements, contracts and contract orders listed on Exhibit ‘E’;
“(c) Performance of contracts with customers entered into in the ordinary course of business; and
“(d) Performance after the Closing under the Lease with regard to real property, taxes and other charges, which, but for the Lease, would be liabilities of Seller.”

In an equity distribution conducted early in 1978, Matrix-Churchill, as a major stockholder, received the plant and building of AQL, Inc., which had continued in existence since the 1976 transaction. It also continued to collect receivables and to make payments. Although operations closed down and no employees were retained, officers and directors continued as required by Ohio law. On October 10, 1978, AQL, Inc., was formally dissolved and a final distribution of remaining assets was made to its shareholders, primarily to Matrix-Churchill.

After the 1976 purchase and sale, “new” Cyril Bath manufactured and sold six press brakes to the United States Government. These machines were made to government specifications and were dissimilar to the “old” designs and engineering files of the “old” Cyril Bath. There is some evidence that the press brake line of the “old” Cyril Bath had become unprofitable by 1975 and was considered by the “new” Cyril Bath as a “dead line,” i.e., an obsolete product.

From the time of the sale in 1976 until 1979, “new” Cyril Bath occupied the building which had housed “old” Cyril Bath, at which time “new” Cyril Bath moved its operation to Monroe, North Carolina.

Plaintiff, Richard Springsteen, was an employee of Halstead-Mitchell Company at its plant in Scottsboro, Alabama. He claimed to have suffered an injury while working at a press brake manufactured by Cyril Bath- He filed an action against the “new” Cyril Bath, against certain co-employees, and against Matrix-Churchill as successor in interest to the “old” Cyril Bath. Extensive pleading and discovery ensued. As indicated above, Matrix-Churchill asked for a declaratory judgment determining the responsibility as between it and “new” Cyril Bath for an injury to Springsteen.

I. The Potential Liability of Matrix-Churchill

The trial court, sitting without a jury by agreement of the parties, heard the case on August 31, 1983. The testimony of Robert McFarland, President of “new” Cyril Bath was taken, and the depositions of Messrs. Homza, Kiggen, and Ellis were admitted into evidence. On October 4,1983, the trial court entered a final order finding that a de facto merger had occurred between “old” Cyril Bath and Matrix-Churchill before the sale of the Cyril Bath assets to “new” Cyril Bath. The trial court cited our cases of Andrews v. John E. Smith’s Sons Co., 369 So.2d 781 (Ala.1979), and Rivers v. Stihl, Inc., 434 So.2d 766 (Ala.1983), and noted that those cases had spoken approvingly of Turner v. Bituminous Casualty Company, 397 Mich. 406, 244 N.W.2d 873 (1976).

Following this order, Matrix-Churchill moved for a new trial on the following ground, among others:

“2. For that the testimony presented in this cause namely that of Robert McFarland, the president of the New Cyril Bath Company indicated that the new company, that is the New Cyril Bath Company, did not advertise press brakes or promote their sales in any way or identify themselves with the press brake or product brake line. Further, that in the deposition taken by Cyril Bath Company in this cause, Mr. McFarland testified at Page 14 of that deposition that they did not advertise in any trade publication. That subsequent to the trial and the testimony taken in this cause, the defendant, Matrix-Churchill has ascertained that the said New Cyril Bath Company does, in fact, advertise and in fact has a listing in the Thomas Register of 1983, a copy of listing in the register is attached hereto wherein the New Cyril Bath Company advertises that they do, in fact, manufacture press brakes....
“3. For that the attorneys for the defendant, Matrix-Churchill did not have this information in hand at the trial of this cause which was tried before this Honorable Court on the 31st day of August 1983.
“4. For that the findings of the court are based upon the testimony of Mr. McFarland and in the findings of the court, the court states that the New Cyril Bath Company did not hold itself out as a manufacturer of press brakes when, in fact, the advertisement from the Thomas Register showed that this is incorrect.
“5. For that the finding of the court would have been changed had the defendant, Matrix-Churchill been allowed to have the information regarding the advertisements in the Thomas Register.
“6. For that the knowledge of this advertisement was totally within the hands of the defendant, Cyril Bath Company, and that the testimony offered by Cyril Bath Company did not lead one to conclude that such advertisements were made.”

After a hearing on this motion, the trial court amended its order of October 4, 1983, abandoning the earlier finding of a “de facto merger” and substituting the “instrumentality doctrine” for piercing the corporate veil set out in Forest Hill Corporation v. Latter & Blum, 249 Ala. 23, 29 So.2d 298 (1947), as applied in Krivo Industrial Supply Co. v. National Distillers and Chemical Corporation, 483 F.2d 1098 (5th Cir.1973), and Kwick Set Components v. Davidson Industrial, Inc., 411 So.2d 134 (Ala.1982), again holding Matrix-Churchill liable. Springsteen, the plaintiff, and Matrix-Churchill, the cross-claimant, appealed from that order.

The liability vel non of a successor corporation has been explored previously by this Court, the applicable principles having been set forth in a recent decision, Rivers v. Stihl, Inc., 434 So.2d 766, 771 (Ala.1983):

“Liability of a successor corporation under corporation law is largely dependent on the form of the acquisition. When corporations merge, the successor remains liable for its predecessors’ liabilities. Birmingham Trust National Bank v. State, 292 Ala. 335, 294 So.2d 153 (1974). This result is also obtained where, regardless of the denomination of the transaction by the parties, the acquisition constitutes a de facto merger. See Shannon v. Samuel Langston Co., 379 F.Supp. 797 (W.D.Mich.1974). When, on the other hand, a corporation purchases the assets of another company the transferee is generally not liable unless (1) there is an express agreement to assume the obligations of the transferor, (2) the transaction amounts to a de facto merger or consolidation of the two companies, (3) the transaction is a fraudulent attempt to escape liability, or (4) the transferee corporation is a mere continuation of the transferor. 15 Fletcher, Cyclopedia Corporations § 7122 (Perm. ed. 1973); 19 Am.Jur.2d Corporations § 1546 (1965).
“In the emerging field of products liability a separate body of law regarding the liability of successor corporations has begun to develop. See, e.g. Ramirez v. Amsted Industries, 86 N.J. 332, 431 A.2d 811 (1981); Ray v. Alad Corp., 19 Cal.3d 22, 136 Cal.Rptr. 574, 560 P.2d 3 (1977); ‘Products Liability — Liability of Transferee for Defective Products Manufactured by Transferor,’ 30 Vand.L.Rev. 238 (1977). While recognizing that all of the policies underlying the rationales of other courts may not be applicable to the Alabama Extended Manufacturer’s Liability Doctrine, this court adopted a ‘basic continuity of enterprise’ test regarding the issue of transferee liability derived from Turner v. Bituminous Casualty Co., 397 Mich. 406, 244 N.W.2d 873 (1976), which contains an extensive analysis of the issues involved. See Andrews v. John E. Smith’s Sons Co., 369 So.2d 781 (Ala.1979). We ruled that a transferee may be held liable for its predecessor’s liabilities ‘where the totality of the transaction demonstrates a basic continuity of the enterprise.’ Andrews at 785.”

In the present case, the trial court first found that there had been a de facto merger between “old” Cyril Bath and Matrix-Churchill, observing that “the management, and operations, of these two corporations were so interwoven that they were one in [sic] the same, and Cyril Bath was merely an instrumentality of Matrix-Churchill.”

In making this finding, the trial court doubtless was applying the “basic continuity of enterprise” test adopted by the Court in Andrews v. John E. Smith’s Sons Co., 369 So.2d 781, 785 (Ala.1979), derived from Turner v. Bituminous Casualty Co., 397 Mich. 406, 244 N.W.2d 873 (1976), which contains an extensive study of this aspect of products liability, including this quotation from Cyr v. B. Offen & Co., 501 F.2d 1145 (1st Cir.1974), at 1154:

“ ‘ * * * The very existence of strict liability for manufacturers implies a basic judgment that the hazards of predicting and insuring for risk from defective products are better borne by the manufacturer than the consumer. The manufacturer’s successor, carrying over the experience and expertise of the manufacturer, is likewise in a better position than the consumer to gauge the risks and the costs of meeting them. The successor knows the product, is as able to calculate the risk of defects as the predecessor, is in position to insure therefor and reflect such cost in sale negotiations, and is the only entity capable of improving the quality of the product.
“ ‘... [I]t is true that the successor, by definition, was not the legal entity which launched the product on the stream of commerce or made an implied representation as to its safety. But in the most real sense it is profiting from an exploiting all of the accumulated good will [sic] which the products have earned, both in its outward representations of continuity and in its internal adherence to the same line of equipment.’ ...”

Turner, supra, added at 244 N.W.2d 882:

“Where the successor corporation represents itself either affirmatively or, by omitting to do otherwise, as in effect a continuation of the original manufacturing enterprise, a strong indication of continuity is established. Justice would be offended if a corporation which holds itself out as a particular company for the purpose of sales, would not be estopped from denying that it is that company for the purpose of determining products liability....”

That court ultimately adopted as guidelines for determining continuity of interest, and therefore responsibility, the first, third, and fourth criteria quoted in Shannon v. Samuel Langston Co., supra:

“(1) There is a continuation of the enterprise of the seller corporation, so that there is a continuity of management, personnel, physical location, assets, and general business operations.
“(3) The seller corporation ceases its ordinary business operations, liquidates, and dissolves as soon as legally and practically possible.
“(4) The purchasing corporation assumes those liabilities and obligations of the seller ordinarily necessary for the uninterrupted continuation of normal business operations of the seller corporation.”

Under these guidelines, was the trial court’s finding of a de facto merger between “old” Cyril Bath and Matrix-Churchill supported by the facts?

Matrix-Churchill purchased 99.7% of Cyril Bath’s common stock in 1969. James Kiggen, who was president and chief executive officer of the “old” Cyril Bath, also assumed those same positions with Matrix-Churchill following the purchase by Matrix-Churchill, and in fact operated both companies from the same office. Both companies had a common secretary-treasurer and comptroller, a common purchasing agent, and a common board of directors. Cyril Bath’s operations continued in the same plant location as before, under Matrix-Churchill’s substantial, though not complete, ownership. Thus, there was a continuation of “old” Cyril Bath’s enterprise under the first criterion. Neither the second nor the third criterion was established, however. Quite the contrary, the record discloses that the “old” Cyril Bath’s operations continued separately from those of Matrix-Churchill’s operations after its purchase by the latter. It is not contended that “old” Cyril Bath ceased its operations and liquidated. In fact, it continued, albeit under joint management by Matrix-Churchill, until the sale to Fairfield.

In the continuation of “old” Cyril Bath’s operations after its stock had been purchased by Matrix-Churchill, nothing is shown to justify the conclusion that Matrix-Churchill, the purchaser, assumed Cyril Bath’s liabilities and obligations “ordinarily necessary for the uninterrupted continuation of [“old” Cyril Bath’s] normal operations.” Thus, the third component of a de facto merger was also missing.

Accordingly, there was no “continuity of enterprise” by Matrix-Churchill in its purchase of Cyril Bath in 1969, under Andrews, supra, and Rivers, supra. What is shown by the record is that Matrix-Churchill purchased 99.7% of “old” Cyril Bath’s stock in 1969 and continued to operate it as a separate company. By purchasing substantially all of that stock, Matrix-Churchill did not effect a consolidation or merger which could be construed as an implied assumption of “old” Cyril Bath’s obligations.

“ ‘[T]he test [of a “mere continuation”] is not the continuation of the business operation but the continuation of the corporate identity.’ The indicia of ‘continuation’ are a common identity of stock, directors, and stockholders and the existence of only one corporation at the completion of the transfer_” (Emphasis added.) Travis v. Harris Corp., 565 F.2d 443, 447 (7th Cir.1977).

The record clearly establishes that Matrix-Churchill and “old” Cyril Bath carried on distinct businesses. The former’s business was importing and selling, and servicing, British-made machine tools used in cutting metals. “Old” Cyril Bath manufactured and serviced metal forming and stretch forming equipment, press brakes, and contracted for metal forming services. These two businesses maintained separate facilities, although they were located in the same building. Their sales and engineering departments were distinct, and each served different customers in different industries. “Old” Cyril Bath employed approximately 45 persons; Matrix-Churchill about 12. While their managements overlapped, that fact in itself does not establish resulting control by the successor. Krivo Industrial Supply Co. v. National Distillers and Chemical Corporations, supra. Finally, the record does not disclose any express agreement between Matrix-Churchill and “old” Cyril Bath whereby the former was to assume the obligations of “old” Cyril Bath, nor any facts justifying the conclusion that Matrix-Churchill’s purchase of “old” Cyril Bath’s stock was “a fraudulent attempt to escape liability.” Quite the contrary, the press brake in question was manufactured by “old” Cyril Bath before the 1969 purchase of Cyril Bath stock by Matrix-Churchill, and plaintiff Springsteen was injured five years after “new” Cyril Bath acquired “old” Cyril Bath’s operation. Neither those circumstances nor any others contained in the record allow any conclusion of fraud on the part of either Matrix-Churchill or “old” Cyril Bath.

Under these circumstances, the general rule applies to the questioned liability of Matrix-Churchill: the corporation purchasing the assets of another company generally is not liable. Rivers v. Stihl, Inc., supra, at 771. None of the exceptions to that rule can be applied to render Matrix-Churchill liable as “old” Cyril Bath’s successor under the facts adduced.

We conclude, moreover, that the trial court’s application of the “piercing the corporate veil” doctrine in order to impose potential liability upon Matrix-Churchill, likewise was erroneous. The facts of this case negate the conclusion that Matrix dominated and controlled “old” Cyril Bath to the extent that “old” Cyril Bath became the “mere instrumentality” • of Matrix-Churchill so as to enable Matrix-Churchill to become a vehicle for evading responsibility. Krivo, supra; Forest Hill Corp. v. Latter & Blum, supra. The control required under the “instrumentality” rule amounts to “total domination of the subservient corporation [“old” Cyril Bath], to the extent that the subservient corporation manifests no separate corporate interests of its own and functions solely to achieve the purposes of the dominant corporation.” Kwick Set Components, Inc. v. Davidson Industries, Inc., 411 So.2d 134 (Ala.1982), quoting Krivo, supra, at 1107.

Nor is there any evidence that Matrix-Churchill itself, by its stock purchase or otherwise, caused Springsteen any harm or injury through misuse of any control. Krivo, supra.

II. The Potential Liability of “New” Cyril Bath

In its second order, which found Matrix-Churchill responsible for any liability to plaintiff under our products liability doctrine by virtue of “piercing the corporate veil,” the trial court rejected the allegations of Matrix-Churchill by which the principle of estoppel was argued against “new” Cyril Bath:

“Matrix-Churchill offers, in support of its motion, evidence of a listing by new Cyril Bath Company, Inc., in the Thomas Register for 1983 as a manufacturer of ‘press brakes.’
“This evidence, along with the letter from new Cyril Bath offered by Matrix-Churchill as Exhibit 10 at trial, would likely have been sufficient for the Court to have applied the estoppel theory as set out in the John Smith’s Sons ease as to new Cyril Bath, if it had been properly before the Court at the time of trial.”

As has been shown, neither the de facto merger theory nor the “[same] instrumentality doctrine” theory sustains the trial court’s imposition of potential liability upon Matrix-Churchill. That portion of the trial court’s second order discloses that the issue of estoppel was rejected by the trial court, because, in its opinion, evidence in support of an estoppel against “new” Cyril Bath was presented too late, i.e., on motion for a new trial. We disagree with that conclusion.

Matrix-Churchill’s Exhibit 10 was introduced during trial. That exhibit is a letter written on letterhead stationery of “The Cyril Bath Company,” dated August 26, 1976, after the purchase of “old” Cyril Bath by Fairfield, and sent to Clerkin Machinery Company of Indianapolis, Indiana. The letter contains a solicitation for business:

“Gentlemen:
“The Cyril Bath Company was recently acquired by Fairfield Machine Company, Inc., of Columbiana, Ohio. Fairfield is a designer and builder of machinery for the steel industry with excellent engineering and fabrication experience. This new association has enabled us to make substantial cost improvements in our line of mechanical press brakes. Therefore, we are in a position to pass these savings along to our prospective customers. We are pleased to submit our new prices which we are certain will give you added impetus to promote and sell our line. Formerly you sold ‘Quality.’ Now we have added the competitive price factor. We are certain that your sales efforts will result in many orders for Cyril Bath Press Brakes.” (Emphasis added.)

The portions of the purchase agreement described earlier support the inference that “new” Cyril Bath not only contemplated using the Cyril Bath name, but had the seller agree to terms which prevented the seller from using that name and from competing in “the manufacture and sale of press brakes.” It was also shown by the evidence that “new” Cyril Bath acquired from “old” Cyril Bath the right to manufacture press brakes. Matrix-Churchill and “old” Cyril Bath were obliged by the agreement to preserve the trade secrets and know-how; and the president of “old” Cyril Bath, James Kiggen, was by the terms of the agreement to be made available to the purchasing company “for no more than ten (10) working days within the first thirty (30) days following the closing.”

Accordingly, there was evidence before the trial court, even without the listing referred to in the motion for a new trial, which made an issue of estoppel against “new” Cyril Bath. This is so because the evidence raises an inference that “new” Cyril Bath was intended by the purchaser to be a continuation of “old” Cyril Bath for the purpose of sales. As stated in Turner, supra, and adopted by this Court in Andrews, supra:

“Where the successor corporation represents itself either affirmatively or, by omitting to do otherwise, as in effect a continuation of the original manufacturing enterprise, a strong indication of continuity is established. Justice would be offended if a corporation which holds itself out as a particular company for the purpose of sales, would not be estopped from denying that it is that company for the purpose of determining products liability....” 244 N.W.2d at 882.

Accordingly, we have concluded that the trial court was incorrect when it did not consider the issue of estoppel under the evidence shown by the record. For that reason, the judgment must be reversed and the cause remanded for a new trial. It is so ordered.

REVERSED AND REMANDED.

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

      . This company is referred to by the parties as "old" Cyril Bath because a "new" Cyril Bath came into being later, as the facts disclose.

      . Then known as Matrix-Froriep.


author: TORBERT, Chief Justice.

text:
    Billy E. FISHER v. SPACE OF PENSACOLA, INC.
    83-610.
    Supreme Court of Alabama.
    Nov. 30, 1984.

      E. Ashton Hill III of Hill & Hill, Mobile, for appellant.
    Frank G. Taylor of Sintz, Pike, Campbell & Duke, Mobile, for appellee.
   TORBERT, Chief Justice.

Billy E. Fisher (“Fisher”) appeals from a summary judgment in favor of Space of Pensacola, Inc. (“Space”). The trial court "granted the motion for summary judgment based on the doctrines of res judicata and collateral estoppel. We reverse.

Fisher and Space were adjoining property owners in Mobile. During 1975 or 1976, Space built a parking lot on its property that allegedly channeled surface waters onto Fisher’s property, causing flooding and littering Fisher’s property with sediment and debris. In 1981, Fisher sued Steak-One, Inc. (“Steak”), the lessee of Space’s property, for (1) breach of its common law duty not to interfere with the natural flow of water onto the lower property; (2) trespass; (3) willful, wanton, or reckless trespass; (4) “continuing nuisance of trespass.” Fisher’s attorney in the action against Steak was advised that Space had leased the property to Steak. Fisher did not add or substitute Space as a party. The jury returned a verdict in favor of Steak. Fisher then filed suit against Space, using the same theories set forth above. The trial court granted Space’s motion for summary judgment, based on Space’s argument that Fisher’s claims against Space were barred by the doctrines of res judicata and collateral estoppel as a result of the jury verdict entered against Fisher and in favor of Steak in the first action.

Fisher appeals the granting of summary judgment on three grounds:

1. Under his theory of recovery, the only party who can be held liable is the one who owns the property and constructs the improvements which divert the water.
2. The second suit was not barred by the doctrine of res judicata because the parties to both suits were not substantially identical and because the same cause of action was not present in both suits.
3. The second suit is not barred by collateral estoppel because the mutuality requirement was not met, the issues were not identical to the one in the previous suit, and resolution of the issue was not necessary to the prior judgment.

Summary judgment should be granted only when the moving party has shown that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Missildine v. Avondale Mills, Inc., 415 So.2d 1040 (Ala.1981). Space did not meet this burden.

Space did not show that it was entitled to prevail on the defense of res judicata. In Wheeler v. First Ala. Bank of Birmingham, 364 So.2d 1190, 1199 (Ala.1978), we listed the elements of res judicata:

“(1) prior judgment rendered by court of competent jurisdiction; (2) prior judgment rendered on the merits; (3) parties to both suits substantially identical; and (4) same cause of action present in both suits.”

The only issue presented is whether the third and fourth elements of the test have been met.

Space failed to show that the parties to both suits were substantially identical. In determining whether there is substantial identity of parties, the Court must look at not only those who were actual parties but also all persons who are in privity with them, that is, all persons who have a mutual or successive relationship to the same rights of property. Interstate Electric Co. v. Deposit Co. of Maryland, 228 Ala. 210, 153 So. 427 (1934), cited in AAA Equipment & Rental, Inc. v. Bailey, 384 So.2d 107 (Ala.1980).

Space urges this Court to disregard our privity and mutuality requirements in determining whether the parties are substantially identical, since Fisher has had his day in court. We decline to abandon our privity and mutuality requirements. In the alternative, Space argues that we have recognized that a lessor and a lessee are in privity with one another. Krasner v. Reed, 33 Ala.App. 85, 30 So.2d 731 (1947); Weston v. King, 206 Ala. 574, 90 So. 802 (1921). Wright and Miller suggest that a landlord and tenant are not in such a relationship that they could bind each other, 18 C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure: Jurisdiction § 4461, at 543-44, n. 3 (1981):

“ ‘While ... under some circumstances, the “privity of estate” between landlord and tenant may cause the latter to be bound by prior judgments to which the landlord only was a party, ... those cases appear to involve only disputes relating to either title to, or right to possession of, real property.’ Show-World Center, Inc. v. Walsh, D.C.N.Y.1977, 438 F.Supp. 642, 648 (per Motley, J.).”

Krasner and Weston were, indeed, cases involving disputes over right to possession of and title to real property. These cases do not persuade us that the landlord-tenant relationship is the kind of “privity of estate” relationship that should, in cases other than possession and title disputes, cause one person to be bound by a prior judgment in which only the other person was a party.

Having found that the parties were not substantially identical, we need not reach the issue of whether the same cause of action was presented in both suits. If one element of res judicata is not met, the doctrine of res judicata is inapplicable.

In addition, a material issue of fact exists as to whether Space was entitled to prevail on the defense of collateral estop-pel. In Wheeler, supra, at 1199, we said there were three requirements for collateral estoppel to operate:

“(1) issue identical to one involved in previous suit; (2) issue actually litigated in prior action; (3) resolution of the issue was necessary to the prior judgment.”

Fisher claims that under his theory, the only person who could be held liable is the one who owned the property and constructed the improvements which diverted the water onto his land. Fisher argues that the jury decided Steak was not the owner of the property and that the jury was thus precluded from addressing the other issues presented in the first suits.

“The first rule for identifying the issues to be precluded is that if there is no showing as to the issues that were actually decided, there is no issue preclusion. The burden is on the party asserting preclusion to show actual decision of the specific issues involved.”

18 C. Wright, A. Miller, & E. Cooper, supra, § 4420, pp. 184-85.

In Amoco Production Co. v. White, 453 So.2d 358 (Ala.1984), we held that a ruling by the Choctaw County Circuit Court that the Choctaw County Severance Tax Act was unconstitutional did not preclude litigation of the issue of the constitutionality of the Baldwin County Severance Tax Act. We found that the third requirement, that the resolution of the same issue was necessary to the prior judgment, was not met because the court “did not state the grounds of its decision,” and, we noted, “Any of the four grounds alleged by the oil companies in Choctaw County could have supported the judgment, without any determination of the remaining grounds.” 453 So.2d at 360.

Little v. Pizza Wagon, Inc., 432 So.2d 1269 (Ala.1983), was even more similar to the case before us. In Little, the lessor (Little) entered into a lease agreement with Pizza Wagon, with Wolf signing as surety. The lease agreement contained a “no assignment” provision. Pizza Wagon later assigned its leasehold interest to Adams. Adams assigned the lease to First Southeast Foods, which abandoned the premises. Two suits arose as a result of the lease and assignments. Adams filed suit in federal court against Little, and Little filed suit in state court against Adams, Pizza Wagon, and Wolf. The state court dismissed Little’s action against Adams because it should have been asserted in federal court as a compulsory counterclaim. The state court also granted summary judgment in favor of Pizza Wagon and Wolf on the grounds of res judicata and collateral es-toppel. We held that the court erred in granting summary judgment, because the jury in the federal court had found only that Adams did not owe Little anything under the terms of the lease. There was no determination of whether Pizza Wagon and Wolf owed Little any obligation under the lease. Since there was an unchallenged assertion that the issues raised by Little against Pizza Wagon and Wolf had never been decided in any court, Pizza Wagon and Wolf were not entitled to summary judgment based on res judicata and collateral estoppel.

In the present case, it is not clear from the general verdict of the jury whether the jury determined that Fisher was not tor-tiously injured or whether the jury determined that Fisher sued the wrong party. Since the jury may have rendered its verdict in favor of Steak on the basis that Steak was not the party responsible for the damage, Fisher is not estopped from litigating the issue of whether he was tor-tiously injured by Space.

In light of the above, Space’s motion for summary judgment on the grounds of res judicata and collateral estoppel should have been denied.

REVERSED AND REMANDED.

FAULKNER, ALMON, EMBRY and ADAMS, JJ., concur.


author: JONES, Justice.

text:
    Dr. Robert L. WHITE v. Charles F. FRIDGE, Sr.
    83-590.
    Supreme Court of Alabama.
    Dec. 21, 1984.

      James J. Duffy, Jr. and Dennis McKenna of Inge, Twitty, Duffy & Prince, Mobile, for appellant.
    M.A. Marsal and George L. Simons, Mobile, for appellee.
   JONES, Justice.

This is an appeal from a jury verdict for Plaintiff Charles Fridge in a medical malpractice action. Defendant Dr. White’s motions for judgment notwithstanding the verdict or new trial or remittitur were denied. On appeal, Dr. White challenges the trial court’s denial of his new trial motion, asserting only that the $60,000 damages award was so excessive as to indicate a mistake or an improper motive on the part of the jury.

The law which governs this appeal is stated with such frequency in the opinions of this Court and is so well-settled in the law of Alabama that it is axiomatic.

Jury verdicts are presumed to be correct (Southern Railway Co. v. Roberts, 380 So.2d 774 (Ala.1980)), and the power of a trial court to set aside these verdicts,

“while inherent in order to prevent irreparable injustice, is a power hesitantly exercised because of the solemnity of a jury verdict regarded in the background of that most precious of rights, the right of a trial by jury.” Walker v. Henderson, 275 Ala. 541, 544, 156 So.2d 633, 636 (1963).

This presumption of correctness which attends a jury verdict is strengthened by the trial court’s denial of a motion for new trial. Osborne v. Cobb, 410 So.2d 396, 397 (Ala.1982); Southern Railway Co. v. Roberts, supra.

In cases such as the one now before us, in which pain and suffering are at issue, there exists no absolute standard by which to measure the adequacy of damages (Central of Georgia Railway Co. v. Steed, 287 Ala. 64, 248 So.2d 110 (1971)), and the trial court is not authorized to interfere with the jury’s verdict simply because the court may believe the jury gave too little or too much. Airheart v. Green, 267 Ala. 689, 104 So.2d 687 (1958). Only where it clearly appears that the jury’s verdict is so excessive as to indicate that it is either the result of “bias, passion, prejudice, corruption or other improper motive” or “some mistaken view of the merits of the case,” can the trial court properly interfere. Vest v. Gay, 275 Ala. 286, 154 So.2d 297 (1963).

Similarly, this Court accords due deference to the discretion of the trial court in these matters. The trial court and jury are present to see and to hear the testimony of each witness, which was, in this particular case, “a peculiar advantage upon the issue[s] of fact for determination.” Jacks v. City of Birmingham, 268 Ala. 138, 143, 105 So.2d 121, 126 (1958). See, also, Southern Railway Co. v. Roberts, supra.

We have reviewed the entire record of the trial, giving special attention to the evidence from which the jury could have made its determination of the amount of the award. A detailed discussion of the evidence is unnecessary. We note, however, that the evidence relating to the issue of the injury incurred by Plaintiff Fridge reveals that Fridge began to experience the symptoms of headaches and spasms of severe facial pain in the summer of 1980. By 1981, the symptoms had become much more frequent (as much as three times in one night) and severe (the testimony of a neurosurgeon at trial indicated that the severity and frequency of the pain of this condition had caused suicide in some patients). Fridge’s medication had been increased, but to no effect.

In 1981, a neurologist diagnosed Fridge’s ailment as that of trigeminal neuralgia or tic douloureux of the right side of the face. The neurologist determined that Fridge’s condition could not be successfully treated with medication and requested the consultation of a neurosurgeon.

On February 6, 1981, after the consultation with the neurologist and Fridge, Defendant Dr. White, a neurosurgeon, performed a surgical procedure known as thermal percutaneous rhizotomy to deaden the trigeminal nerve and relieve Fridge’s pain.

The procedure involves the insertion of a needle containing a temperature electrode at the corner of the patient’s mouth through to the area of the pain, usually below and behind the cheekbone. When the needle/electrode is in place, the patient, who has not been anesthetized, is asked about the location of his pain and is then given a short-duration anesthetic. The lesion is made and the patient is revived and questioned as to whether the procedure has been effective in relieving the pain. The procedure is repeated until it is successful or until the patient’s tolerance for the anesthetic is reached or exceeded. The surgery was performed on the left side of Fridge’s face, and Fridge was anesthetized six times before Dr. White determined that the procedure had been unsuccessful.

After the surgery, Fridge’s face was bruised and bloodshot, and his left eye drooped and was bloodshot. The numbness created by the procedure on the left side of Fridge’s face remained at the time of trial, was noticeable when Fridge shaved, and caused problems with chewing on the left side. After the procedure, Fridge developed pneumonia while still in the hospital and remained in the hospital until February 13, 1981.

Fridge testified that the procedure had not relieved the pain on the right side of his face and that he has continued to experience effects of the condition since the surgery. Fridge and his wife testified as to the emotional effects of the surgery in that Fridge suffered from depression following the procedure and would begin to cry and stutter whenever anyone spoke to him.

In light of the evidence, and giving every presumption to be accorded the determination of the jury, we cannot find that the damages awarded are so excessive as to evidence either an improper motive or a mistaken view of the case. We cannot conclude that the verdict was based upon any improper reasoning as opposed to its being a reasonable verdict based upon a careful consideration of the evidence.

The judgment appealed from is hereby affirmed.

AFFIRMED.

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

      . For an excellent discussion of the foregoing, see C. Gamble and D. Corley, Alabama Law of Damages, § 7-6 (1982).


author: MADDOX, Justice.

text:
    Benjamin Franklin PHILLIPS v. Reynold T. ALONZO, Jr., and Associated Law Firm; J.D. Quinlivan and Associated Law Firm.
    83-793.
    Supreme Court of Alabama.
    Dec. 21, 1984.
    Benjamin Franklin Phillips, pro se.
    A. Neil Hudgens and Michael S. McGlo-thren of Brown, Hudgens, Richardson, Mobile, for appellees.
   MADDOX, Justice.

This is an appeal from denial of a Rule 60(b)(6), Ala.R.Civ.P., motion for relief from judgment.

Phillips (plaintiff) has been before this Court twice previously, once seeking review of his conviction for robbery, and once to challenge a summary judgment granted his appointed attorneys in the legal malpractice suit he brought against them arising out of their representation of him in those criminal proceedings. As in the two previous appeals, we find no reversible error and affirm.

On June 5, 1981, Phillips was indicted for first degree robbery. Defendant Alonzo was appointed to represent him at trial. Phillips was convicted and sentenced, as a habitual offender, to life in prison without parole. Defendant Quinlivan, who was appointed to represent Phillips on appeal, filed a timely notice of appeal and a brief in the Court of Criminal Appeals. That court affirmed Phillips’s conviction, without opinion, and denied rehearing. This Court denied certiorari.

While the appeal of his conviction was still pending final disposition, Phillips, acting pro se, brought suit for legal malpractice against Alonzo and Quinlivan, praying for $1,000,000 in damages. Both defendants moved for summary judgment, pursuant to Rule 56(b), Ala.R.Civ.P., and submitted personal affidavits which refuted plaintiff’s claim that they were negligent. Phillips, too, filed a personal affidavit, in effect, restating the allegations in his complaint. Both defendants’ motions were granted, and Phillips appealed here. This Court, speaking through Mr. Justice Faulkner, affirmed, holding that Phillips’s failure to present an expert’s affidavit showing defendants’ negligence made summary judgment appropriate. Phillips v. Alonzo, 435 So.2d 1266 (Ala.1983).

After this Court’s opinion was rendered, Phillips filed in the trial court a Rule 60(b)(6) motion seeking relief from the summary judgment entered against him. His only basis for that motion was the trial judge’s failure to inform him of the necessity of expert testimony in malpractice cases; he alleges that the failure of the trial judge to inform him of this necessity was an abuse of judicial discretion. The motion was promptly denied. Phillips then filed a motion to reconsider, and, before that motion could be ruled upon, filed with this Court a notice of appeal from the denial of his 60(b)(6) motion.

As this Court stated in Textron, Inc. v. Whitfield, 380 So.2d 259 (Ala.1980), a 60(b)(6) motion should be granted only in those exceptional circumstances when the moving party can show the court sufficient equitable grounds to be entitled to relief. The decision of whether to grant or deny a 60(b)(6) motion is within the sound discretion of the trial judge, whose judgment will not be reversed on appeal absent an abuse of discretion. Textron, Inc., supra, at 260.

The only grounds that Phillips alleged in support of his motion was that he did not know that he needed to file a coun-teraffidavit of an expert in order to defeat the motion for summary judgment. In an almost identical case, Malloy v. Sullivan, 431 So.2d 514 (Ala.1983), this Court held that the plaintiff in a legal malpractice case was not entitled to 60(b)(6) relief from a summary judgment granted because of his failure to file a proper counteraffidavit. In that case, the court stated that the plaintiff, who proceeded pro se and failed to file a counteraffidavit, had failed to demonstrate extraordinary or compelling circumstances justifying relief under 60(b)(6). Malloy, supra, at 515.

Like the plaintiff in Malloy, we hold that Phillips failed to show exceptional or compelling circumstances which would show an abuse of judicial discretion justifying the extraordinary relief provided by 60(b)(6). This is especially true in the present instance, where the plaintiff seeks by way of 60(b)(6) what he is not otherwise entitled to, a second bite at the apple, a second appellate review of the same unfavorable summary judgment. This we do not believe is the intent of 60(b)(6). Because in his earlier appeal Phillips could have raised the identical legal question he sought to raise in his 60(b)(6) motion but he failed to do so, we cannot say that the trial judge abused his discretion by refusing to allow the issue to be raised by way of 60(b)(6).

AFFIRMED.

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


text:
    Lashunda BLAND, Angela Bland and Consuella Bland, minors, By and Through their mother and next friend Glenda BLAND v. Virgil HUNTER.
    83-1049.
    Supreme Court of Alabama.
    Dec. 21, 1984.

      David A. Sullivan, Birmingham, for appellants.
    M. Wayne Wheeler, Birmingham, for ap-pellee.
   MADDOX, Justice.

This case involves a conflict in determining which party has a higher priority right to redeem certain real property pursuant to Code 1975, § 6-5-230.

In October 1978, Chester Bland, husband of appellant Glenda Bland, executed a first mortgage on certain property to Davis and Marion King. On February 15, 1979, Chester Bland executed a second mortgage to Virgil Hunter, appellee.

The second mortgage was foreclosed on by a foreclosure sale on July 24, 1979. Virgil Hunter purchased the property at this sale. There was no redemption within one year of this foreclosure. Later, the first mortgage was foreclosed on by a foreclosure sale on January 5, 1982, and the Kings were purchasers at that sale. On February 12, 1982, the Kings transferred all their rights, title, and interest in the property to Virgil Hunter by way of a deed of redemption.

Within one year of the first mortgage foreclosure on January 5, 1982, Glenda Bland made a demand for a statement of debt and other lawful charges, and then filed a complaint for redemption on behalf of her minor children. Later, the trial court granted summary judgment in favor of Hunter. Glenda Bland appealed to this Court. This Court, unable to determine the rights of the parties, remanded with instructions for the trial court to determine whether the February 12, 1982, transaction was a purchase or a redemption. Bland v. Hunter, 448 So.2d 330 (Ala.1984) (hereinafter referred to as Bland I). On remand, the trial court determined the priority of the parties under § 6-5-230 and found that Hunter was the vendee of the debtor and that he had a higher priority than the Bland children to redeem the property. As such, Hunter was not required to give the Bland children written notice of his intent to redeem the real property prior to the February 12, 1982, transaction. On behalf of her children, Glenda Bland appeals here.

Code 1975, § 6-5-230, provides as follows:

“Where real estate, or any interest therein, is sold under execution or by virtue of any judgment in a court of competent jurisdiction or under any deed of trust or power of sale in a mortgage, the same may be redeemed by the debtor, junior mortgagee, vendee of the debtor or as-signee of the equitable or statutory right-of redemption, wife, widow, child, heir at law, devisee or any vendee or assignee of the right of redemption under this Code from the purchaser or his vendee within one year thereafter in the manner provided in this article.”

Code 1975, § 6-5-231, provides:

“(a) The priority of the rights of the several persons or parties mentioned in section 6-5-230 to redeem shall be in the order in which they are mentioned therein; but any person or party who is entitled to redeem may give notice of his intention to redeem to those having prior rights to redeem; and if such persons to whom notice is thus given do not redeem or commence an action to redeem within 60 days after the service of such notice, then the party giving the notice may, within 30 days thereafter, exercise his right to redeem by an action or otherwise, and no further redemption by the parties so notified may be made.”

On appeal, Glenda Bland argues that Hunter falls within the category “any vendee or assignee of the right of redemption under this Code,” which is below the children of the mortgagor on the list of priorities set out in § 6-5-230. Bland contends that although prior to January 5, 1982, Hunter was the owner or assignee of the equity of redemption, this was extinguished and non-existent on January 5, 1982, the day of King’s mortgage foreclosure sale. Bland cites Allison v. Cody, 206 Ala. 88, 89 So. 238 (1921), for the proposition that “the valid foreclosure of a first mortgage completely extinguishes the equity of redemption under such mortgage.” Thus, Bland contends that after the Kings’ mortgage foreclosure, Hunter did not own the equity of redemption, but retained only his statutory rights of redemption obtained and acquired when he became the purchaser at his mortgage foreclosure sale. As such, Bland contends that Hunter was required to give written notice to the minor children of the mortgagor, of his intent to redeem the first mortgage from the Kings. His failing to do so, she contends, allowed the Bland children the right to redeem the first mortgage from the Kings. We disagree.

While the equitable right of redemption may have been extinguished on January 5, 1982, the statutory right to redeem was still in existence. In Bland I, this Court stated the following:

“When Hunter foreclosed his second mortgage, and was the purchaser at the foreclosure sale, he became the owner of' the equity of redemption in the property subject to the senior mortgage. Hunter, who purchased at his foreclosure sale, ceased to be the junior mortgagee. Instead, he became the owner or assignee of the equity of redemption.”

Bland I, supra, at 332. (Footnote omitted.)

Thus, the fact that Hunter owned the equity of redemption in the property subject to the senior mortgage determined Hunter’s priority pursuant to the statute. We find that the lower court properly concluded that Hunter was in the category of “vendee of the debtor or assignee of the equitable or statutory right of redemption,” which is a higher priority than “child” in the statute.

AFFIRMED.

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


author: PER CURIAM.

text:
    Ex parte Brenda P. MACK. (In re Brenda MACK v. BEACON LIGHT CLINIC, et al.)
    84-10.
    Supreme Court of Alabama.
    Dec. 21, 1984.

      Frank M. Wilson of Beasley & Wilson, Montgomery, for petitioner.
    John A. Henig, Jr. of Copeland, Franco, Screws & Gill, Montgomery, for respondent Beacon Light Clinic.
    Tabor R. Novak, Jr. and Joana S. Ellis of Ball, Ball, Duke & Matthews, Montgomery, for respondent The Women’s Clinic, Inc.
    Fred W. Tyson of Rushton, Stakely, Johnston, & Garrett, Montgomery, for respondent Dr. Hugh MacGuire, M.D.
   PER CURIAM.

The trial court denied petitioner’s motion to compel answers to her interrogatories and upheld objections to her subpoena for production of documents. She then filed this petition for writ of mandamus, asking this Court to require the trial court to compel this discovery. We deny the petition.

Petitioner Brenda Mack filed suit against the Beacon Light Clinic, Inc., and Dr. Hugh MacGuire to recover damages for personal injuries arising out of the defendants’ allegedly negligent performance of an abortion. During the course of discovery, she propounded interrogatories to Beacon Light Clinic, Inc. Among the questions were:

“5. Please give the name and current address of each person who received an abortion at Beacon Clinic on December 2, 1983.
“6. Please give the name and current address of each person who was present during any counseling given Brenda Mack at Beacon Clinic on December 2, 1983.”

The defendants objected to the release of any names and addresses of patients treated on that date, and petitioner’s subsequent motion to compel answers was denied. When petitioner learned that Beacon Light Clinic, Inc., had sold the clinic to a third party, she propounded a Rule 34(b)(2), A.R. Civ.P., subpoena to the custodian of records of the new Beacon Clinic for production of documents, which included a request for medical records and various other documents, all of which would reveal the names of those patients who had abortions on December 2, 1983. The defendants and the current owners of the clinic again objected to the release of this information. Those objections were upheld by the trial court. The petitioner argues that the information which she seeks is necessary to her case and that the trial court abused its discretion in denying her motion to compel and in upholding the objections to the subpoena. We disagree.

While mandamus is a proper means of review to determine whether a trial court abused its discretion in limiting a party’s right to discovery, the utilization of such a writ to compel or prohibit discovery is restricted because of the discretionary nature of a discovery order. Ex parte Dorsey Trailers, Inc., 397 So.2d 98 (Ala.1981). The Alabama Rules of Civil Procedure permit very broad discovery; however, Rule 26(c) recognizes that this right to discovery is not unlimited and accordingly vests the trial court with broad discretionary power to control the use of the process and prevent its abuse by any party. As a result, the writ will not issue unless the right sought to be enforced is clear and certain, with no reasonable basis for controversy about the right to relief. For this reason, mandamus will issue to compel discovery only in those cases where a clear abuse of discretion is shown. Ex parte Dorsey Trailers, Inc., supra.

This Court has recognized that patients enjoy a right to privacy and confidentiality with regard to disclosures made within the doctor-patient relationship. In Horne v. Patton, 291 Ala. 701, 287 So.2d 824 (1974), the Court held that there was a confidential relationship between the defendant doctor and the plaintiff, who was his patient, which imposed a qualified duty upon the doctor not to reveal confidences obtained through the doctor-patient relationship, and that a breach of that duty would give rise to a cause of action. It was also recognized in that case that a doctor’s unauthorized disclosure of a person’s medical records constituted an invasion of that person’s right of privacy and, further, that by entering into the doctor-patient relationship, the doctor impliedly contracted to keep confidential all personal information disclosed by the patient. We note from Horne, supra, that the aforementioned duty is not absolute, but subject to certain exceptions where the supervening interests of society or the private interests of the patient intervene. See also Mull v. String, 448 So.2d 952 (Ala.1984).

It is the trial court’s role to exercise its broad discretion in a manner that will implement the philosophy of full disclosure of relevant information and at the same time afford a party, or others, maximum protection against unnecessary disclosure. Ex parte Guerdon Industries, Inc., 373 So.2d 322 (Ala.1979).

The disclosure of the information sought by the petitioner in this case could prove most embarrassing or harmful to the other patients. The trial court took this under consideration and determined that those patients’ rights to privacy and confidentiality in this respect were paramount to any gain that might be achieved by the disclosure of the information sought by the petitioner. There being no abuse of discretion on the part of the trial court, we deny the writ of mandamus.

WRIT DENIED.

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