author: ALMON, Justice.

text:
    Evelyn L. DENNEY v. Dr. Robert SERIO.
    82-654.
    Supreme Court of Alabama.
    Jan. 20, 1984.

      John David Knight, Cullman, and William W. Smith of Hogan, Smith & Als-paugh, Birmingham, for appellant.
    John S. Key of Eyster, Key, Tubb, Weaver & Roth, Decatur, for appellee.
   ALMON, Justice.

This is a medical malpractice case. Evelyn L. Denney appeals from the summary judgment granted in favor of Dr. Robert Serio, who was substituted for a fictitious party defendant after the statute of limitations elapsed.

On March 8,1978, Evelyn Denney sought emergency room treatment at Cullman County Hospital for injuries received in a fall in her home that same day. She was seen by an emergency room physician later identified as Dr. Robert Serio. Although Denney complained of severe pain in her left knee' and ankle, Dr. Serio failed to diagnose a fracture of her left ankle which she had sustained in her fall. Denney then went to see Dr. Robert M. Little on March 9, 1978, and after several weeks of treatment, he also had failed to diagnose her broken ankle. Denney continued to experience severe pain and consulted other medical specialists, who properly diagnosed her fractured ankle approximately six weeks after her injury. The delay in diagnosis protracted the medical treatment normally needed for a fracture of this type, and Denney continued to experience severe pain following reduction of the fracture.

On March 5, 1980, Denney filed a complaint in Cullman Circuit Court against Dr. Robert M. Little; Doctors Hospital, Inc.; Cullman County Hospital Board, d/b/a Cullman Medical Center; and several fictitious defendants described in the caption as

“JOHN DOE and RICHARD ROE, Individuals; A & B, a partnership; XYZ, A CORPORATION, and ABC, a corporation, being the persons, partnership, or corporations who provided negligent or wanton medical care to the plaintiff, whose names are otherwise unknown but will be furnished by way of amendment when ascertained....”

The complaint alleged that on March 8, 1978, and for a period of several weeks thereafter, Denney was at one time or another a patient of each of the defendants, and that during this period, the defendants’ negligent and/or wanton failure to diagnose Denney’s condition with regard to the injuries she sustained in a fall at her home proximately caused her permanent disability, continuing pain and suffering, and numerous medical and hospital bills.

Dr. Little and the Cullman County Hospital Board each filed motions to dismiss, which were denied, and on May 16, 1980, Denney amended her complaint, retaining the original defendants but substituting new counts. Denney now alleged that on March 8, 1978, a certain Cullman County emergency doctor whose name was unknown to Denney negligently and/or wantonly failed to X-ray and properly treat her broken ankle after Denney specifically told him that she thought her ankle was broken. Denney then alleged that this emergency room doctor’s conduct and Dr. Little’s negligent and/or wanton failure to diagnose her broken ankle for a period of six weeks following her injury each proximately caused the injuries alleged in her original complaint.

Doctors Hospital, after filing an unsuccessful motion to dismiss, filed a motion for summary judgment based upon the pleadings and an affidavit which stated that Denney was never a patient at Doctors Hospital when the diagnosis complained of was made. The motion was granted.

Denney then amended her complaint on February 25, 1982, and added Dr. Robert Serio, the emergency room doctor, as a party defendant. Dr. Serio then filed a motion to dismiss the action against him for failure to state a claim, noncompliance with Rule 21, A.R.Civ.P., and the statute of limitations. The motion was set for hearing and on April 9, 1982, the hearing date, Denney filed a motion for leave to amend to substitute Dr. Serio for the fictitious party defendant “John Doe.” The circuit court then granted Dr. Serio’s motion to dismiss and also granted Denney’s motion for leave to amend subject to a later determination that Dr. Serio could be substituted for a fictitious party in accordance with Rule 9(h), A.R.Civ.P.

On June 6,1982, because Denney had not yet amended her complaint to substitute Dr. Serio for a fictitious defendant, Dr. Serio filed a motion for reconsideration of the court’s order granting Denney’s motion for leave to amend. The court considered the motion and withdrew the grant of leave to amend on June 17, 1982. On July 22, 1982, Denney filed a second amendment to her complaint, substituting Dr. Serio in place of fictitious defendant John Doe. Dr. Serio filed an answer on August 23 and two motions for summary judgment on September 7, 1982, and February 18, 1983. On November 30, 1982, Denney reached a pro tanto settlement of her claims against Dr. Little and Cullman County Hospital Board, Inc., and the lawsuit was dismissed as to these defendants on March 11, 1983. The circuit court granted Dr. Serio’s motion for summary judgment on February 28, 1983, holding that because Dr. Serio was not properly substituted for a fictitious party defendant, the claim was barred by the statute of limitations. Denney filed notice of appeal to this Court on April 7, 1983.

The sole issue presented for review is whether Denney properly substituted Dr. Robert Serio for a fictitious defendant under Rule 9(h), A.R.Civ.P., so that the substitution related back, by operation of Rule 15(c), A.R.Civ.P., to the filing of the original complaint to avoid the statute of limitations bar.

Fictitious party practice in Alabama is governed by two provisions. Rule 9(h), A.R.Civ.P., provides that

“[w]hen a party is ignorant of the name of an opposing party and so alleges in his pleading, the opposing party may be designated by any name, and when his true name is discovered, the process and all pleadings and proceedings in the action may be amended by substituting the true name.”

In the event that the substitution of the true name for the fictitious name occurs after the expiration of the appropriate statute of limitations, Rule 15(c), A.R.Civ.P., provides that “[a]n amendment pursuant to Rule 9(h), Fictitious Parties, is not an amendment changing the party against whom a claim is asserted and such amendment relates back to the date of the original pleading.”

It is undisputed that Denney’s second amended complaint, which substituted Dr. Serio for fictitious defendant John Doe, was filed after the expiration of the appropriate statute of limitations. Code 1975, § 6-5-482(a), which governs Denney’s complaint, provides that all medical malpractice actions must be commenced within two years after the tortious event occurs. The two-year statute began to run against Den-ney’s claim on March 8, 1978, the date on which the first tortious act or omission allegedly occurred. Denney filed her original complaint, which included several fictitious parties defendant on March 5, 1980; the statute expired on March 8, 1980, and Denney filed her second amended complaint, which substituted Dr. Serio for a fictitious defendant, on July 22, 1982.

Denney contends, however, that this substitution complied with Rule 9(h) and, therefore, under Rule 15(c), A.R.Civ.P., related back to the date of her original complaint, which had been filed within the statute of limitations, and therefore that the trial court erred in granting summary judgment in favor of Dr. Serio.

Invocation of the relation-back principle in fictitious party practice is premised upon the plaintiff’s satisfaction of two conditions: 1) the plaintiff must state a cause of action against the fictitious party in the body of the original complaint; and 2) the plaintiff must have no knowledge of the identity of the fictitious party when filing the original complaint. Phelps v. South Alabama Elec. Co-op., 434 So.2d 234, 236 (Ala.1983) (related authority omitted).

This Court, in Columbia Engineering Int’l, Ltd. v. Espey, 429 So.2d 955 (Ala.1983), held that in order for a plaintiff to state a cause of action against a fictitious defendant in the body of the original complaint, the complaint' must contain a description of wrongdoing on the part of the fictitious defendant. We then delineated the standard used to test the sufficiency of the plaintiff’s allegations against a fictitious defendant contained in the body of the original complaint:

“Any count in a complaint which would state a cause of action under our liberal notice pleading rules would also state a cause of action against a fictitious party. One need not state with more particularity a cause of action against an unknown party as compared to a named party....”

Columbia Engineering Int’l, Ltd. v. Espey, 429 So.2d at 960.

Under this standard, the allegations contained in the body of Denney’s original complaint were clearly sufficient to state a cause of action against Dr. Serio.

Denney alleged that on or about March 8, 1978, and for several weeks thereafter, she was a patient at one time or another of each of the defendants, thereby incorporating by reference the fictitious defendants enumerated in the caption. Denney then described the allegedly wrongful conduct of each of the defendants, including the fictitious defendant Dr. Serio, when she alleged that during this period the defendants negligently and/or wantonly failed to diagnose her condition with regard to the injuries that she had sustained in a fall at her home. Denney then described the location of these injuries when she alleged that as a proximate result of the defendants’ negligent and/or wanton failure to diagnose her condition, her leg did not properly heal from the injuries sustained in the fall at her home.

Because evidence exists establishing that on March 8,1978, Dr. Serio did in fact treat Denney for leg injuries sustained in a fall at her home, the allegations contained in the body of Denney’s original complaint were sufficient to state a cause of action against Dr. Serio based upon his allegedly wrongful conduct in negligently and/or wantonly failing to diagnose her injuries.

Although Denney amended her original complaint to allege with greater particularity Dr. Serio’s identity as the emergency room doctor at Cullman County Hospital and his allegedly wrongful conduct in negligently and/or wantonly failing to X-ray her ankle and to properly treat her injury, this refinement does not detract from the sufficiency of her original cause of action. “The proper scope of comparison is whether there was a cause of action stated in the body of the complaint, not on the degree of particularity with which the fictitious defendant is described.” Columbia Engineering Int’l, Ltd. v. Espey, 429 So.2d 955, 959. See also, Harvell v. Ireland Electric Company, 444 So.2d 852 (Ala.1984), and Moorer v. Doster Constr. Co., 442 So.2d 97 (Ala.1983), holding that allegations in the original complaint that defendants committed actionable wrongs sufficiently stated causes of action against fictitious parties.

Moreover, because the amended complaint merely detailed the original negligent - and / or - wanton - failure - to - diagnose cause of action instead of substituting Dr. Serio for a fictitious defendant and simultaneously alleging a new cause of action against this defendant, the amendment does not flout the policy considerations underlying Rule 9(h), A.R.Civ.P., which do not give plaintiffs additional time beyond the statutorily prescribed period within which to formulate a cause of action. See Browning v. City of Gadsden, 359 So.2d 361 (Ala.1978).

The second condition precedent to the invocation of the relation-back principle in fictitious party practice is the plaintiffs ignorance of the fictitious party’s identity when filing the original complaint.

The record reveals evidence sufficient to establish that Denney first gained knowledge of Dr. Serio’s name on February 25, 1982, almost two years after filing the original complaint. Yet, because Denney did not formally substitute Dr. Serio for a fictitious party defendant until July 22, 1982, Dr. Serio argues that this delay destroyed her ignorance of his true identity, thereby precluding invocation of the relation-back principle to avoid the statute of limitations.

Although this Court has refused to apply the relation-back principle to inordinate delays from the time of knowledge of the fictitious party’s true identity until actual substitution of the fictitious party’s true name — see Walden v. Mineral Equipment Co., 406 So.2d 385 (Ala.1981) (three-year delay too long); Shirley v. Getty Oil Co., 367 So.2d 1388 (Ala.1979) (17-month delay too long) — Dr. Serio proffered no evidence establishing that Denney’s dilatory substitution in fact prejudiced him. See generally Ex parte Tidmore, 418 So.2d 866 (Ala.1982) (two-year delay in substituting proper defendant too long where party sought to be added would be prejudiced thereby).

Where Dr. Serio retained counsel to defend himself against Denney’s claim as early as February 25, 1982, in response to Denney’s abortive attempt to add him as a party defendant, Denney’s five-month delay in properly substituting him for a fictitious defendant cannot be said to have prejudiced him.

Because we hold that Denney not only stated a cause of action against Dr. Serio in the body of her original complaint, but also lacked knowledge of his true name when filing the original complaint so as to invoke the relation-back principle of Rules 9(h) and 15(c), A.R.Civ.P., the circuit court erred in granting summary judgment in favor of Dr. Serio based upon the statute of limitations.

The judgment of the circuit court granting summary judgment in favor of Dr. Robert Serio is reversed and the cause remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

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

      . In light of our holding in Columbia Engineering Int'l, Ltd. v. Espey, 429 So.2d 955, 959 (Ala.1983), and its progeny, the federal case of Baggett v. Alto Corp., 459 F.Supp. 989, 991 (N.D.Ala.1978), is incorrect in stating that Alabama law does not require a plaintiff to make allegations of wrongdoing against a fictitious party in order to add him as a party under Rule 9(h) and obtain the benefits of Rule 15(c), A.R.Civ.P.


source: Caselaw Access Project

author: BEATTY, Justice. TORBERT, Chief Justice SHORES, Justice

license: Public Domain

text:
    Robert E. HOWE and Betty Howe v. Robert V. BISHOP, Robert H. Wallace, and Eli Younes.
    82-715.
    Supreme Court of Alabama.
    Jan. 20, 1984.

      John W. Haley of Hare, Wynn, Newell & Newton, Birmingham, for appellants.
    Dewayne N. Morris of Markstein, Morris, Sweeney & Liles and Whit Thomas, Birmingham, for appellees.
   BEATTY, Justice.

Plaintiffs appeal from grants of summary judgment for defendants. We affirm.

Plaintiffs-appellants present the following questions for review:

(1) Whether the trial court erred in granting summary judgment;

(2) Whether an original designer of an apartment project owes a duty to a subsequent owner of the project, not in privity with him, who claims injury due to the alleged failure of the designer to use due care;

(3) Whether an original builder of an apartment project owes a duty to a subsequent owner of the project, not in privity with him, who claims injury due to the alleged failure of the builder to use due care; and

(4) Whether the statute of limitations begins to run from the date of the alleged injury in an action by a subsequent owner of an apartment project who claims injury by the alleged negligence of a designer or builder of the apartment complex.

During 1974 and 1975, defendant Eli Younes, acting as general contractor, constructed the Moulin Rouge Apartments in Birmingham, Alabama. Mr. Younes constructed the apartments for himself and had no plans to sell them upon completion. After the apartments were completed and fully occupied, Wallace B. Riggins approached Younes about buying the apartment project. Younes and his wife sold the apartments to Mr. Riggins and several others. The completion of the apartments and the sale to Riggins occurred more than six years prior to the filing of this lawsuit.

The plaintiffs, Robert E. and Betty T. Howe, purchased the apartments in 1978 from Mr. Riggins and his co-owners. Plaintiffs allege that on November 14, 1981, they discovered that the apartments were defective and required extensive repairs.

The Howes filed suit on November 5, 1982, against Eli Younes, Robert Wallace and Robert Bishop. Bishop is the architect who designed the apartments. Wallace’s association with the apartment project is unclear. His own affidavit and Bishop’s affidavit allege that he is an engineer whom Younes consulted about leakage from the walkways after the apartments were completed. Younes’s answers to plaintiffs’ interrogatories allege that Wallace and Bishop designed the apartment project. Wallace’s association with the apartment project is not important, however, because we affirm the trial court’s grant of summary judgment for each of the defendants.

The complaint contained counts of negligent and wanton misconduct in the design and construction of the apartments, breach of warranty, and breach of contract. Plaintiffs also asserted in the complaint that the Alabama Extended Manufacturer’s Liability Doctrine applied to defendants’ design, construction, and sale of the Moulin Rouge Apartments.

Eli Younes filed a motion to dismiss and an answer, and Robert Wallace filed an answer. All defendants filed motions for summary judgment based on the pleadings and supporting affidavits.

The trial court granted summary judgment in favor of the defendants on all counts and entered the following order:

“This case was submitted to the court on motion for summary judgment filed in behalf of the defendants, Robert V. Bishop, Robert H. Wallace and Eli Younes, separately and severally, based upon the pleadings, affidavit of Robert H. Wallace, affidavit of Robert V. Bishop, affidavit of Eli Younes and exhibits attached thereto, and the court having considered all of the foregoing, the court is of the opinion that each said motion for summary judgment filed in behalf of each of the defendants should be granted, therefore, it is ordered and adjudged that there being no genuine issue of material fact as a matter of law, and there being no just reason for delay, judgment is hereby entered in favor of each of the defendants, and the plaintiffs’ complaint against each of the defendants is hereby dismissed with prejudice.”

Plaintiffs concede that the trial court was correct in entering summary judgment on all claims except the claim that defendants were negligent or wanton in designing and constructing the Moulin Rouge Apartments. The trial court did not state the grounds for granting defendants’ motions for summary judgment. Plaintiffs state in brief that “it appears from the affidavits filed by the defendants that the motion was directed to the contention that the defendants owed no duty to the plaintiffs or that the action was barred by the statute of limitations.” Plaintiffs therefore contend that the trial court granted the motions for summary judgment on those grounds.

According to the plaintiffs, the trial court could not have granted summary judgment for defendants if it had applied the foreseeability test of duty this Court used in Havard v. Palmer & Baker Engineers, Inc., 293 Ala. 301, 307, 302 So.2d 228, 232 (1974): “The ultimate test of the existence of a duty to use care is found in the foreseeability that harm may result if care is not exercised.”

In Zeigler v. Blount Brothers Construction Co., 364 So.2d 1163, 1167 (Ala.1978), this Court elaborated on Havard, stating:

“Havard dealt with a contract between an engineering firm and the City of Mobile. Under that contract the firm was to make annual inspections and recommendations pertaining to the safe operation of a vehicular tunnel operated by the city. This Court held that a duty to the plaintiff was alleged in a complaint which charged that the defendant knew that petroleum fires were to be reasonably anticipated and that the purpose of fire equipment located in the tunnel was to provide emergency protection to the travelling public....
“... The foreseeability aspect of Ha-vard was premised upon the relationship between the ultimate risk of harm and the professional knowledge of the engineer defendants. The availability of emergency firefighting equipment was viewed as a subject within the scope of their expertise, and it was foreseeable that the particular harm suffered would necessitate the use of such equipment. ...”

In Havard it was foreseeable that the defendants were being relied upon to make the tunnel safe for the public. In Zeigler, on the other hand, plaintiffs sought to impose liability on construction and engineering firms for higher utility rates which were imposed as a result of the collapse of a dam which defendants constructed. This Court held that it was not reasonably foreseeable to the defendants in Zeigler that the collapse of the dam would result in higher utility rates; therefore, plaintiffs had no cause of action in negligence. Id. at 1167-68. Applying Havard and Zeigler to the present facts, we must conclude that it was not reasonably foreseeable to these defendants that anyone other than Younes would own the apartments, and, therefore, not foreseeable that plaintiffs would be injured. Consequently,, defendants owed no duty to plaintiffs.

Plaintiffs have also cited decisions from other jurisdictions which have allowed causes of action in negligence against architects and engineers. Two of these decisions dealt with condominium developments in which it was foreseeable that they were built for sale to the public. Drexel Properties, Inc. v. Bay Colony, 406 So.2d 515 (Fla.App.1981); Cooper v. Jevne, 56 Cal.App.3d 860, 128 Cal.Rptr. 724 (1976). Another concerned a tenant who sued an architect for negligent construction and design of a commercial building. A.E. Investment Corp. v. Link Builders, Inc., 62 Wis.2d 479, 214 N.W.2d 764 (1974). In all of the above cases, the defendants knew the purposes for which the buildings were constructed, i.e., sales or rentals to the public, and thus it was foreseeable that the work being done was for the benefit of third parties. These decisions are, therefore, distinguishable from the present case in which it was not foreseeable that these plaintiffs would be harmed.

Defendants assert that the real cause of action here, if any, is an implied warranty of fitness and habitability under Sims v. Lewis, 374 So.2d 298 (Ala.1979). In Sims we adopted the following elements of this cause of action:

“(1) The plaintiffs purchased a new residence from the defendants; (2) The defendants had constructed the residence; (3) The residence had not been inhabited by any other person or persons prior to the purchase of the residence; (4) The residence was constructed by the defendants for purposes of sale and was sold in a defective condition, which defective condition impaired the intended use of the residence, namely, inhabitation; (5) Plaintiffs were not aware of the defective condition and were not possessed of any knowledge or notice by which they could have reasonably discovered it; (6) By reason of the defective condition, the plaintiffs suffered damages in the form of a decrease in the fair market value of the residence. Theis v. Heuer, 264 Ind. 1, 280 N.E.2d 300, 303 (1972).” 374 So.2d at 303.

In Stephens v. Creel, 429 So.2d 278 (Ala.1983), we held that the statute of limitations for an implied warranty on the sale of a new house begins to run six years from the date a contract is completed. Defendants argue that plaintiffs’ claim failed to meet the requirements of Sims and Stephens, and so “[t]he complaint attempts to get around the law with respect to breach of warranty by alleging that the Defendants negligently breached a duty owed by them to the plaintiffs.” However, plaintiffs concede that the trial court correctly granted defendants’ motions for summary judgment on the breach of warranty claim.

Because we hold that plaintiffs failed to show a duty owed them by defendants, and, therefore, failed to prove a cause of action in negligence, we need not reach the statute of limitations issue.

For all of the reasons set out above, the trial court correctly granted summary judgments for defendants. The judgment is due to be, and it is hereby, affirmed.

AFFIRMED.

FAULKNER, J., concurs.

TORBERT, C.J., concurs in the result, with opinion in which EMBRY, J., joins.

SHORES, J., concurs in the result, with opinion in which MADDOX, JONES and ALMON, JJ., join.

ADAMS, J., concurs in the result.

TORBERT, Chief Justice

(concurring in the result).

I concur in the holding that defendants owed no duty of care to plaintiffs in the design and construction of the apartments in issue. I reach that decision by applying a broader test for determining the existence of a duty to a non-contractual, third party. This test includes foreseeability of harm, the majority rationale, but establishes other factors to be balanced in each case.

Recent Alabama decisions have focused on foreseeability of harm if care is not exercised as “the ultimate test of the existence of a duty” to a third party. Zeigler v. Blount Bros. Constr. Co., 364 So.2d 1163, 1167 (Ala.1978); Havard v. Palmer & Baker Eng’rs, Inc., 293 Ala. 301, 306-07, 302 So.2d 228, 232 (1974). While I concede that foreseeability of harm is perhaps the most important element in analyzing the duty of care owed to parties not in privity of contract, other jurisdictions have identified additional factors which may be considered.

“Whether or not a party has placed himself in such a relation with another so that the law will impose upon him an obligation, sounding in tort and not in contract, to act in such a way that the other will not be injured calls for the balancing of various factors: (1) the extent to which the transaction was intended to affect the other person; (2) the foreseeability of harm to him; (3) the degree of certainty that he suffered injury; (4) the closeness of the connection between the defendant’s conduct and the injury; (5) the moral blame attached to such conduct; and (6) the policy of preventing future harm.”

United Leasing Corp. v. Miller, 45 N.C.App. 400, 406-07, 263 S.E.2d 313, 318 (1980). See Biakanja v. Irving, 49 Cal.2d 647, 650, 320 P.2d 16, 19 (1958) (liability to third party not in privity “is a matter of policy”). See also Quail Hollow E. Condominium Ass’n v. Donald J. Scholz Co., 47 N.C.App. 518, 524-25, 268 S.E.2d 12, 17 (1980) (construction industry).

An analysis of these factors justifies the trial court’s summary judgment on the basis that Younes and his agents did not owe a duty of reasonable care to the Howes. Because Younes built the facility for himself, he obviously did not intend for the construction to affect the Howes. The intended “ultimate consumer-purchaser” of the apartments was Younes himself. See Quail Hollow, 47 N.C.App. at 525, 268 S.E.2d at 17.

The second factor of foreseeability of harm is a closer issue. Whether or not one intends to affect another does not determine whether a reasonable person in the defendants’ position would foresee harm as a result of some course of action. It is certainly foreseeable that design and construction defects would generate repair costs to an apartment owner. This fact is tempered by the undisputed evidence that Younes planned to own the project for an indefinite time. An owner is legally allowed to build for himself a structure which requires substantial maintenance. Under such circumstances, at the time of design and construction a reasonable person would not foresee harm to a subsequent purchaser. This case is distinct from the case where defendant can foresee some harm to others but cannot reasonably foresee the particular kind of harm. See Zeigler, 364 So.2d at 1167 (construction firm cannot foresee utility rate increases due to failure of a dam).

The third factor relates to the certainty of injury. Although the briefs do not discuss the damages issue, it seems likely that the purchase price paid by the Howes reflected the poorly maintained condition of the property. Therefore, the alleged harm suffered is not certain. This concern is part of the rationale which distinguishes economic damages from physical injuries for the purpose of ascertaining a tort duty. Compare Restatement (Second) of Agency § 357 (1958) with id. § 354. Because of the lack of any discussion of this issue, I do not give it any weight.

The fourth factor, closeness of connection between the conduct and the injury, also argues against imposing a duty of care. The alleged damages occurred more than six years after construction. The property was sold to an intervening party who then sold to the Howes. Clearly, the conduct of defendants and the harm to the Howes were separated by time and transaction.

The fifth and sixth factors, moral blame and the policy of preventing future loss, relate to cases where the conduct has moral overtones or the harm identified is so significant or frequent as to justify special attention. These considerations do not come into play in this case.

An analysis of these factors reveals defendants owed no duty under the undisputed facts. Where these factors are in conflict, the trial court must balance them to answer the legal question of the existence of duty. In this case, the factors consistently point to the conclusion that no duty was owed. Therefore, I concur in the result of the majority opinion.

EMBRY, J., concurs.

SHORES, Justice

(concurring in the result):

I also concur in the result. I would simply hold that the doctrine of caveat emptor applies to the sale of used structures, whether one-family residences, apartments, or otherwise. See Cooper & Company, Inc. v. Bryant, 440 So.2d 1016 (Ala.1983); Blankenship v. Ogle, 418 So.2d 126 (Ala.1982); Harrell v. Dodson, 398 So.2d 272 (Ala.1981); Ray v. Montgomery, 399 So.2d 230 (Ala.1980).

MADDOX, JONES and ALMON, JJ., concur.


author: EMBRY, Justice.

text:
    Edward GREEN, Jr. v. AMERICAN CAST IRON PIPE COMPANY.
    82-763.
    Supreme Court of Alabama.
    Jan. 20, 1984.

      Harold P. Knight, Birmingham, for appellant.
    Robert G. Tate and Julia Smeds of Thomas, Taliaferro, Forman, Burr & Murray, Birmingham, for appellee.
   EMBRY, Justice.

Edward Green, Jr., appeals from the order denying his motion for new trial filed after judgment entered on a jury verdict in favor of American Cast Iron Pipe Company. The verdict and judgment were in Green’s action for damages for his alleged wrongful discharge for violation of ACIP-CO’s Plant Rule 17. That rule prohibits an employee from “selling, furnishing, or otherwise trafficking in illicit drugs” on company property.

There are two issues, the resolution of which will determine whether the trial court erred in denying his motion for new trial:

I
Whether the trial court abused its discretion in admitting into evidence the results of a polygraph examination upon which ACIPCO based its decision to discharge Green.
II
Whether the jury correctly found that ACIPCO complied with its plant rules which required a unanimous vote of the Discipline Committee to discharge Edward Green.

The Facts

Green, an employee of the General Yards Department of ACIPCO, was discharged for violating ACIPCO’s Plant Rule No. 17, which prohibits:

“Selling, furnishing or otherwise trafficking in illicit drugs on Company property.”

The Discipline Committee of ACIPCO, which is responsible for investigating and voting on disciplinary actions for violation of company rules, unanimously voted to discharge him.

At ACIPCO, the Board of Operatives is composed of twelve employee representatives, each representative coming from a different area of the plant, who have been elected to hold that position by their fellow employees. The Board of Operatives assists in developing the rules and regulations for ACIPCO employees. These are set out in the employee handbook given to each employee.

Matters involving discipline of employees are investigated and handled by a Discipline Committee, composed of five members from management and four members of the Board of Operatives. Those who serve on the Discipline Committee are the Chairman of the Board of Operatives and three other members appointed by him.

Before the Discipline Committee considers any disciplinary action, the matter is first referred to its Investigating Committee. The latter is composed of the four employee representatives who serve on the Discipline Committee. The Investigating Committee makes an investigation into the matter in its capacity as a representative of the employee, after which it recommends to the Discipline Committee regarding what action that committee should take. If there is some discrepancy or dispute concerning the facts or there is need for further information in aid of the investigation, the employee can be asked to submit to a polygraph examination. Under the plant rules an employee can be required to submit to such an examination. Should the employee submit to the examination, the results can be considered by the Investigating Committee or by the Discipline Committee when considering the charges. Green was aware of the polygraph examination provision of the plant rules.

Joe Curtis, Manager of Employment Safety and Security in the Personnel Department, had reason to believe Green was involved both in the use of marijuana and in trafficking in the drug on the job. This information came to Curtis from another employee at the plant, whereupon, Curtis called Green in to discuss the matter. Curtis informed Green that someone had turned him in for smoking marijuana and trafficking in it on company property. Then Curtis asked whether Green had done so. Initially, Green denied having used marijuana on the job; however, he later changed his story and told Curtis he, Green, had used it on company property within the last four or five years. He continued to deny trafficking in the drug.

Because Green changed his story during the interview and appeared to be uncertain about a number of his answers to Curtis’s questions, the latter decided to hold the matter for a period of time. The plant was about to close for its customary shutdown during the week of July 4th and Curtis told Green they would discuss the matter further after the vacation break.

After vacation, Curtis had another meeting with Green to discuss the subject previously discussed. Again Green admitted using it on company property, but denied ever sharing, selling, furnishing or trafficking.

Subsequently, Curtis drew up a charge against Green for the possible violation of Plant Rule 17, and then turned it over to Sam Phelps, Personnel Director and Chairman of the Discipline Committee. A violation of that rule results in immediate discharge.

Curtis filed the charge because of his experience in dealing with numerous people using and trafficking in drugs at ACIPCO. He had found from his experience that users normally share and traffic in drugs. Further, he had received specific information that Green had trafficked in it. Phelps, in turn, turned the charge over to the Investigating Committee of the Discipline Committee.

At that time the four members of the Investigating Committee, who were the employee representatives on the Discipline Committee, were Luke Walker, Ira T. Read, Roy Howell, and Alex Fitts. It was these four individuals who met with Green to discuss the charge.

Roy Howell, Chairman of the Board of Operatives, and a member of the Discipline Committee and its Investigating Committee, suggested to Green that he, Green, take a polygraph test. Green agreed to do so.

Green, accompanied by Roy Howell and Luke Walker and also by George Headley, Manager of Employee Relations and Services, went to Alabama Polygraph Consultants, Inc., for the purpose of Green submitting to a polygraph examination.

When they arrived at the offices c Alabama Polygraph Consultants, Jim Rivers, President of that company, met first with George Headley and the two ACIPCO employee representatives. At that time the questions to be asked Green were discussed and agreed upon.

Rivers then met with Green and advised him that the polygraph examination was voluntary. Green then signed a consent form, after which Rivers conducted a pretest interview with Green, reviewing the questions Green would be asked during the examination:

“(1) In the past year, have you dealt in marijuana on ACIPCO property?

“(2) In the past year, have you worked under the influence of marijuana on ACIP-CO property?

“(3) In the past year, have you brought any marijuana to work with you in ACIP-CO property?

“(4) In the past year, have you smoked marijuana on ACIPCO property?”

During the pre-test interview Green initially answered “no” to each of these questions.

However, just before being hooked up to the polygraph machine, Green changed his answers to the questions which inquired about Green’s use on the job within the last year. He admitted he had used drugs on the job within the past six months. Green requested Rivers to re-phrase the question whether Green had used marijuana on the job within the last two months.

Although at the trial of this case, Green denied changing his story, he admitted to Rivers during the pre-test interview that he had smoked marijuana on approximately six occasions during the past six months, excepting the immediate past two months, while on company property. He continued to deny to Rivers having ever used any marijuana in those last two months, having brought any to work within that period of time, having worked under the influence of any during the same period, and having ever sold or dealt in narcotics while on ACIPCO property.

Based upon this change of testimony, Rivers had Green sign the following voluntary statement:

“7/21/77
“I Eddie Green ACIPCO during past year I have not sold any drugs at ACIP-CO during last six months. I have smoke[d] pot on the job maybe six times but not in the past two months.
“I have made this statement to Mr. Rivers at my own free will because it is the truth. Mr. Rivers has treated me fairly and [has] not promise[d] me anything in return.
/S/ Eddie Green”

Green admitted signing this statement and Rivers then conducted the polygraph examination. Based upon the results, Rivers concluded that, in his opinion, Green had not answered truthfully the following questions:

“(1) In the past 2 months, have you worked under the influence of marijuana while on ACIPCO property?
“(2) In the past 2 months, have you brought any marijuana to work with you?
“(3) In the past 2 months, have you smoked any marijuana while on ACIPCO property?
“(4) In the past year, have you dealt in any marijuana while on ACIPCO property?

Rivers then orally advised Green of his opinion and results, and also orally advised George Headley and the two employee representatives, Roy Howell and Luke Walker, of his findings. Roy Howell also told Green that Rivers had reported to Howell, Headley, and Walker, the results of the examination. A written report to the Discipline Committee followed.

The Discipline Committee then convened with six of its nine members being present. Present were: Roy Howell, Alex Fitts, Luke Walker, S.F. Carter, E.D. McCauley, and Charles Meads. Absent members were S.P. Phelps, J.F. Curtis, and Ira Read.

If a Board of Operatives member who is also a member of the Discipline Committee is to be absent from a particular Discipline Committee meeting, the normal procedure for appointing his replacement is for the Chairman of the Board of Operatives to appoint an employee representative for that absent member. This ensures that the employee representatives have at least four of their number present at any Discipline Committee meeting. In this case, Roy Howell, Chairman of the Board of Operatives, appointed Charles Meads, then a member of the Board of Operatives, to take the place of Ira T. Read at the meeting.

Green was present when someone reported the results of Green’s polygraph examination to the Discipline Committee, after which a vote was taken whether to discharge Green for violating Plant Rule 17. The motion to discharge Green was made by S.F. Carter, and seconded by Charles Meads, one of the employee representatives on the Board. The Committee members present, a quorum, voted unanimously to discharge Green for violation of the rule.

The minutes of the Discipline Committee were duly recorded by George Headley, who, in the absence of Curtis, the Recording Secretary, had been asked by the latter to record them.

Green’s matter was handled before the Discipline Committee in a customary and routine manner. After Green was discharged, ACIPCO paid him everything he had earned while working there, including any bonus, any paid vacation, and any severance pay owed him.

I

ACIPCO’s Plant Rules provide that an employee can be requested to submit to a polygraph examination. Green voluntarily did so; the Discipline Committee considered the results when deciding to discharge him and after doing so, terminated his employment. In Smith v. American Cast Iron Pipe Co., 370 So.2d 283 (Ala.1979), this court held that an employee could properly be discharged for refusing to submit to a polygraph examination when requested to do so (where the company rules provided for such request and examination). In Smith, this court discussed the distinction between admissibility of such examination in criminal and civil cases, referring to the fact that the polygraph requirement is not void as against public policy. We today hold that under the facts of this case, results of the polygraph test given Green were admissible in the trial of his action for wrongful discharge. The trial court did not err in admitting this evidence.

II

Green contends that because less than the total number of members of the Discipline Committee voted that he be discharged, the action of the unanimous vote of a quorum present was ineffective and failed to comply with ACIPCO’s work rules.

ACIPCO’s work rules, in effect during and throughout the term of Green’s employment, contains the following:

“The Discipline Committee has jurisdiction over all disciplinary cases which involve violation of plant rules serious enough that more than a reprimand is involved. This means every case involving a week layoff or more. Cases of Plant Rule violations are brought before the committee for review and action. The four employee representatives must be completely informed about the case and their votes count the same as other committee members. If an employee is to be laid off or discharged, the committee must vote unanimously. In the event the committee cannot agree the case is referred to the Board of Management.

There were six of the nine members present at the Discipline Committee meeting. Charles Meads was appointed by the Chairman of the Board of Operatives to sit on the Discipline Committee in the stead of Ira T. Read, absent from the meeting as one of the employee representatives. Read was, at the time, also an employee representative member of the Board of Operatives. This was in accord with long established custom and was the normal practice followed in the case of an absent Discipline Committee employee representative member of the latter committee. This ensures that the employee representatives have at least four representatives present at any Discipline Committee meeting. As stated, this was a well-established, accepted practice at ACIPCO, acquiesced in by the employees. Under the facts in this case, that acquiescence works an estoppel of Green’s assertion to the contrary regarding any improper composition of the Discipline committee.

As stated by the Supreme Judicial Court of Massachusetts:

“ ‘Where one, without objection, suffers another to do acts which proceed upon the ground of authority from him, or by his conduct adopts and sanctions such acts after they are done, he will be bound, although no previous authority exists, in all respects as if the requisite power had been given in the most formal manner.’ Circumstances may warrant' an inference that acts of a committee, openly done, and extending over a considerable period of time, were known and assented to by those who appointed the committee....”

McNeil v. Boston Chamber of Commerce, 154 Mass. 277, 285, 28 N.E. 245, 248 (1891).

The language of the employee handbook requiring the Discipline Committee to vote unanimously clearly requires those present to vote unanimously to discharge an employee. It does not, however, require that all the members of the Discipline Committee be present and vote unanimously.

It is a generally accepted principle that a committee of a body may act when a quorum or a majority is present. See Roberts Rules of Order, § 52. See also Canada-Atlantic & Plant S.S. Co. v. Flanders, 145 F. 875 (1st Cir.1906); Gumm v. City of Lexington, 247 Ky. 139, 56 S.W.2d 703 (1933); McNeil v. Boston Chamber of Commerce, supra, Harroun v. Brush Electric Light Co., 152 N.Y. 212, 46 N.E. 291 (1897).

The harshness of a general rule requiring all members of a committee to be in attendance to vote on committee matters is apparent. Again, from McNeil:

“It would be very inconvenient in practice if a committee of this character, whose duties involve many acts in carrying out the general purpose of their appointment, could do nothing if a single member should be absent. There is sufficient precedent for holding that a majority may act, and such is the better rule....”

It is completely consistent with logic, reason, and precedent, that we hold there was due compliance, in all respects, with ACIPCO’s work rules, as set in the Employees Handbook of Plant Work Rules, in and about both the composition of the Discipline Committee (including designation of a substitute member) and that the procedures followed culminated in Green’s discharge.

For the reasons set forth above, the judgment below is due to be and is hereby affirmed,

AFFIRMED,

TORBERT, C.J., and FAULKNER, AL-MON and ADAMS, JJ., concur.


author: BEATTY, Justice.

text:
    Frank MADISON, et al. v. Wiley Scott WELDON, etc., et al. Don Edwin ADKINS v. Wiley Scott WELDON, etc., et al.
    82-467, 82-507.
    Supreme Court of Alabama.
    Jan. 27, 1984.

      Fite, Davis & Atkinson, Hamilton and Harvey Jackson, Jr. of Tweedy, Jackson & Beech, Jasper, for appellant City of Win-field.
    Morris W. Savage of Bankhead & Savage, Jasper, for appellant Frank Madison.
    John W. Williams, Jr., Homewood, for appellant Max Brasher.
    Michael G. Kendrick, Charlie D. Waldrep, and Thomas L. Stewart of Gorham, Wal-drep, Stewart & Kendrick, Birmingham, for appellees.
    Charles A. Graddick, Atty. Gen. and Thomas R. Allison, Asst. Atty. Gen., in support of appellant’s position.
   BEATTY, Justice.

Defendant Don Edwin Adkins appeals from the trial court’s denial of his motion for a new trial. Defendants Frank Madison, Max Brasher, and City of Winfield filed a separate appeal from the trial court’s denial of their motions for new trial.

These appeals arise from a personal injury action brought by the minor plaintiff and his mother. That action was tried to a jury, which returned a general verdict against all defendants for $180,000 compensatory damages and $40,000 punitive damages. We reverse and remand on the refusal of the trial court to grant the motions for a new trial for Madison, Brasher, and the City of Winfield. We affirm the trial court’s denial of Adkins’s motion for a new trial.

Although several issues are argued in the briefs, the dispositive issue for review with respect to appellants Madison, Brasher, and the City of Winfield is whether the trial court erred in failing to give these appellants’ requested charges to the jury.

The issues raised by appellant Adkins are:

(1) Whether the trial court erred in denying a continuance due to Adkins’s absence;

(2) Whether the trial court erred in issuing an attachment for Adkins based upon a subpoena which was executed by a co-defendant;

(3) Whether the trial court erred in making certain remarks during the trial;

(4) Whether the trial court complied with Rule 51, A.R.Civ.P., which requires the attorneys to be notified, prior to closing arguments, as to which legal theories will go to the jury;

(5) Whether the trial court erred in allowing a juror to consult with the partner of an attorney representing a co-defendant in the case; and

(6) Whether the trial court erred by denying. Adkins’s motion for a new trial based upon the alleged errors set out above.

Plaintiff Scott Weldon was injured when defendant Don Edwin Adkins drove his ear into the truck in which Scott was a passenger. Scott, a minor, brought suit through his mother, Myrtle Weldon, as next friend, and Mrs. Weldon joined in the action in her own behalf. The Weldons filed suit against Adkins and two police officers of the City of Winfield. The officers, Max Brasher and Frank Madison, had been involved in a high speed chase with Adkins for about fifteen minutes prior to the accident. The Weldons later amended their complaint to include the City of Winfield as a party defendant, alleging that the combined negligent and wanton acts of defendants proximately caused injury to the plaintiffs. Scott requested compensatory dam.ages for personal injury and punitive damages. Mrs. Weldon requested compensatory damages for Scott’s medical expenses and the loss of his services, as well as punitive damages.

At the time of the pursuit, Officers Brasher and Madison were in separate police cars. Madison was the first to observe Adkins travelling toward Jasper on Highway 78 at 74 miles per hour in a 50 mile per hour zone within the city limits of Winfield. Officer Brasher then spotted Adkins travel-ling at 100 miles per hour, still within the Winfield city limits. Brasher turned on his blue light and siren and began to pursue Adkins. Before Madison turned around to follow Adkins, he heard Brasher say over the police radio that he was in hot pursuit of a speeding car on Highway 78 moving toward Jasper. Madison then turned on his blue light and turned around to pursue Adkins.

Brasher continued to pursue Adkins toward Jasper on Highway 78 at speeds approaching 100 miles per hour. The chase continued through several intersections and turns over several different stretches of road, including a two-lane farm-to-market residential road; Brasher remained in contact with the Winfield base station on his police radio to keep the base informed of his location. Brasher at one point-pulled alongside Adkins’s vehicle, and he testified that Adkins appeared to be intoxicated. Adkins lost control of his car on the Dog-town Cutoff Road, but regained control and continued his attempt to elude the police.

The pursuit ended when Adkins ran a stop sign, and collided with the truck in which Scott Weldon was riding. Adkins later admitted at his deposition that at the time of the wreck he had drunk five or six beers. He also testified that he was speeding when he saw the two officers and that he “took of£” hoping he could lose them. In spite of the blue light flashing and the officer’s gestures to Adkins to pull over, he continued driving “wide open” to get away. He stated that he did not put on brakes at the intersection where he hit the truck in which Scott Weldon was riding.

The trial court submitted to the jury the counts of negligence and wantonness against all defendants. The jury returned a general verdict against all defendants for compensatory and punitive damages.

The Madison, Brasher, and City of Winfield Appeal

Defendants Madison, Brasher, and City of Winfield contend that the trial court erred in refusing the following written requested charges:

“14. The court charges the jury that speed limitations as provided for under the laws of the State of Alabama do not apply to vehicles operated with due regard for safety and under the direction of police officers of the law in the case of apprehension of violators of the law or of persons charged with or suspected of any such violation.
“The court further charges the jury that in determining whether the police officers Max Brasher and Frank Madison, or either of them, acted negligently or were guilty of wanton conduct on the occasion complained about, you are to consider that they and each of them were charged with the duty of arresting law violators and if you are reasonably satisfied from the evidence that the defendant Adkins was on the occasion complained about a law violator and was committing violation of the speed laws of the State of Alabama in the presence of the officers, then you are to also consider that the police officers must and often have to exceed the speed limits of the laws of the State of Alabama and exceed precautions normally imposed upon other individuals and further that under such conditions the police officers were not obliged to allow the defendant Adkins to escape, even though pursuit may contribute to defendant Adkins’s reckless driving while being pursued.”
“15. The court charges the jury that if in the presence of the police officers on the occasion complained about the defendant Adkins violated the speed laws of the State of Alabama, it was the police officers’ duty to take steps to suppress the offense and apprehend the defendant Adkins.
“The law imposes upon the City of Winfield and the police officers Brasher and Madison duties which they must perform; in the performance of these duties, the City of Winfield and the police officers must take actions which an individual is not ordinarily called upon to take, such as exposure to the dangers of traffic, and therefore the standard of care exercised by the police officers must be judged more liberally.”
17. The court charges the jury that police officers have a duty to pursue and attempt to apprehend speed law violators and in doing so may drive at such speeds and take such steps as may be necessary to apprehend the violator so long as an officer does not exceed proper and rational bounds or act in a negligent or wanton manner and if you are reasonably satisfied from the evidence in this case that the defendant Adkins was violating the speed laws of the State of Alabama on the occasion complained of, then the court charges the jury the police officers involved had a duty to pursue him and drive at such speeds and take such steps as were necessary to apprehend the defendant Adkins, so long as the officers did not exceed proper and rational bounds nor act in a negligent or wanton manner. If you are further reasonably satisfied from the evidence that the officers did not exceed proper and rational bounds on the occasion complained about, nor acted in a negligent and wanton manner as directed by the court, then you cannot return a verdict for the plaintiffs and against the defendants City of Winfield, Max Brasher and Frank Madison for such actions or conduct on the part of Max Brasher and Frank Madison.
“The court further charges the jury that the police officers, while in pursuit of the defendant Adkins, were entitled to have any negligent conduct on their part directed by a standard of care different from that normally imposed upon individuals, giving due regard to the type of duty they are required to perform in the public interest in that they should not be held responsible for the action of the defendant Adkins although the pursuit may have contributed to his driving recklessly since the officers were not obliged to allow him to escape.”
“21. The Court further charges the jury that if you are reasonably satisfied from the evidence that the defendant, Adkins violated the speed laws of the State of Alabama, in Marion County, Alabama, which was the county of the police officers, Brasher and Madison, and that the speeding offense was committed in said officers’ presence, then the Court charges the jury that said police Adkins in Walker County, Alabama.”

As we explain later in this opinion, the trial court was unable to inform defendants of its rulings on their written requested charges prior to their arguments to the jury because defendants submitted to the court a large number of requested charges at a time later than that requested by the court. Defendants objected to the trial court’s refusal to rule on the written requested charges, and the court informed the parties that they could object to the oral charge after it had been given to the jury. Following the oral charge, these defendants excepted to the court’s failure to submit to the jury the legal principles encompassed in charges 14,15,17, 21, supra, and others. Defendants stated these principles in their objection and also referred to the requested charges by number. Therefore, these defendants properly preserved the alleged error for review. See Rule 51, A.R.Civ.P.

Defendants submitted the above charges for the purpose of having the court instruct the jury that the officers had the duty and responsibility to enforce the law, and that, accordingly, they should be judged by a more liberal standard of care. Additionally, defendants offered an instruction that the officers were not liable for the conduct of defendant Adkins, even though the pursuit might have contributed to his reckless driving. Because of extensive testimony about the chase being conducted across county lines, defendants also sought to have the court instruct the jury that the officers had the authority to arrest Adkins in Walker County.

We hold that the trial court committed prejudicial error in refusing to charge the jury on the law as reflected in charges 17 and 21 (charge 17 repeats substantially all of the legal principles contained in charges 14 and 15).

The trial court correctly, but incompletely, charged the jury:

“Remember that negligence is doing something that a reasonably prudent person would not have done under the same or similar circumstances, or failing to do something that a reasonably prudent person would have done under the same or similar circumstances.
“Now, when applying this measure to these defendants, and in particular, these police officers, we are talking about what a reasonably prudent police officer would have done under the same or similar circumstances. And we are talking about what a reasonably prudent police officer would not have done under the same or similar circumstances.
“Now, in determining ... what a reasonably prudent police officer would have done under the same or similar circumstances, you may take into consideration the generally accepted standards and practices which you have heard about and which were applicable to police in similar situations at that time.
“Let me see if I can untangle that.
“In determining whether or not these defendants, especially the police officers, were wanton or negligent, you must look at what would a reasonably prudent police officer have done under the same or similar circumstances, or what would he not have done? Did he do something that he ought not to have done?
“And in making this decision, you may use the generally accepted standards, adopted and in practice and used by police officers similarly situated at the time that this transaction took place.”

The error in this instruction lies in the court’s failure to clearly distinguish between the standard of care to be applied for the officers’ own personal acts and the standard of care of the officers for their official acts in pursuing a law violator.

This Court recognizes that there are no Alabama decisions which directly address this question which was before the trial court. The only prior Alabama decision concerning the duty of care of a police officer performing his duty is Swift & Co. v. Payne, 223 Ala. 25, 134 So. 626 (1931). In Swift, a motorcycle policeman on his way home for dinner collided with another vehicle. In dicta, this Court stated:

“[T]he rights and duties of the parties to this accident — by parties in this connection we mean plaintiff and the driver of defendant’s truck — were just what they would have been had plaintiff not been an officer of the law; that is to say, plaintiff was not performing any official duty requiring unusual speed nor was he relieved of any duty of due care which would have rested upon a private citizen in the same situation.” 223 Ala. at 26, 134 So. at 627.

Nevertheless, Swift implies that the duty of care for a policeman performing an official duty requiring unusual speed is different from that of a private citizen.

A statute in effect at the time of this collision, September 23,1978, exempted law enforcement officers from statutory speed limitations in certain situations. Code of 1975, § 32-5-96, provides:

“The speed limitations as set forth in this article shall not apply to vehicles when operated with due regard for safety and under the direction of state troopers, police or road or other officers of the law, as herein provided, in the case of apprehension of violators of the law or of persons charged with or suspected of any such violation, nor to fire departments or fire patrol vehicles when traveling in response to a fire alarm, nor to public or private ambulances when traveling in emergencies. The exemption shall not however protect the driver of any such vehicles or his principal from the consequences of a reckless disregard of the safety of others, as provided by law.” (Repealed effective May 19, 1980).

Therefore, a police officer could exceed the speed limit so long as he did not drive in reckless disregard of the safety of others. Neither the statute nor Swift addresses the question of the police officer’s responsibility for the behavior of the pursued, however, because both focus on the officer as driver.

Cases from other jurisdictions, however, are persuasive on that point. The question presented in Wrubel v. State, 11 Misc.2d 878, 879, 174 N.Y.S.2d 687, 689 (N.Y.Ct.Cl.1958), was almost identical to the one at issue in the case at bar: “Is the State liable for damage occasioned by a fleeing lawbreaker while being pursued by a state trooper who was performing his duty?” The Wrubel court held that the State was not liable under the circumstances of that ease.

The facts themselves in Wrubel and those in the present case are quite similar. The state trooper in Wrubel observed a speeding automobile and gave chase with siren blowing and red lights flashing. Five times the officer pulled abreast of the automobile to signal the motorist over, but each time the driver swerved toward the trooper’s car to force him back. The automobile, while being pursued, collided with another automobile, causing injuries to the driver and passenger. The Court found that the State was not liable, because the proximate cause of the wreck was the speed of the pursued automobile and not the conduct of the trooper. The Court expressed concern that if it held the State liable in such circumstances police officers might be reluctant to act in an emergency, with the consequences that the community could be stripped of proper and adequate protection against malefactors.

The following analysis in Wrubel is especially significant:

“In the presence of a violation of law it is the officer’s duty to take steps to suppress the offense and apprehend the offender. At its inception the offense being committed was only a traffic infraction. However, it developed, in the opinion of the Court, into reckless driving, a misdemeanor, also into resisting an officer, and other crimes which could be made out of the incident as it developed.
“Claimants’ predication of liability on the State is founded on the novel position that the trooper, in attempting to halt one increasing the danger on the highway, did by his attempt alone increase the danger himself. To extend this position to the ultimate would require a police officer to pursue, at an otherwise lawful rate of speed, a lawbreaker traveling at an unlawful rate of speed, or to ignore him in the first place.
“An operator who is speeding, or who is a reckless driver on the highway, would know that all he had to do was to go faster — and under claimants’ theory escape would be possible — there would be no chase. A burglar, bank robber or any other felon could threaten to shoot and under claimants’ theory escape would be possible and arrest avoided. It is fantastic to further expand claimants’ theory — such thinking would place a police officer in the same category as the Marquis of Queensbury in a pier six brawl.
“In so holding we do not say that it is impossible for an officer to be negligent or reckless in the performance of his duties. That it is possible is amply pointed out by some of the cases cited by claimants. However, we do not feel those cases to be applicable or controlling in the present instance.
“A police officer has a right to use whatever means necessary to make an arrest and unless he exceeds proper and rational bounds or acts in a negligent, careless or wanton manner, he is not liable for damages sustained, even by innocent parties, under the circumstances that arose herein. We think the action of the trooper was proper. The contention of claimants is unsound.” 11 Misc.2d at 879-80, 174 N.Y.S.2d at 689.

Florida has followed the Wrubel analysis in finding that a city is not liable for the wrongful death of a third person killed by one attempting to escape the police in the absence of evidence of lack of due care in operation of the police officer’s automobile, City of Miami v. Horne, 198 So.2d 10 (Fla.1967). In Horne, at 13, the court, citing Wrubel, set out the following standard of care:

“The rule governing the conduct of [a] police [officer] in pursuit of an escaping offender is that he must operate his car with due care and, in doing so, he is not responsible for the acts of the offender. Although pursuit may contribute to the reckless driving of the pursued, the officer is not obliged to allow him to escape.”

Based upon the preceding authorities, it was error for the trial court to refuse to give requested charge 17. Additionally, under the authority of Raughley v. State, 398 So.2d 414 (Ala.Cr.App.1981), the jury should have been instructed that the officers had the authority to arrest Adkins in Walker County. Therefore, it was also error to refuse to give requested charge 21. Because the trial court failed to properly instruct the jury, these defendants were prejudiced and, therefore, their motions for a new trial should have been granted.

The Adkins Appeal

The first issue for review concerning Adkins is whether the trial court erred in refusing to continue the case due to Adkins’s absence at trial. Adkins alleges that the court forced his attorney to try the case without allowing any opportunity to procure Adkins’s attendance.

The record shows that the case was continued twice, and that on three occasions when the case was set for trial Adkins was absent. When the case was set for September 20, 1982, the trial court informed the parties that if Adkins failed to appear before the court at that time no more continuances would be granted.

The grant or denial of a motion for a continuance is discretionary with the trial court and will not be reversed unless gross abuse of discretion is shown. Perdue v. Mitchell, 373 So.2d 650, 652 (Ala.1979). Adkins has not shown this Court that the trial court abused its discretion in this case. Accordingly, the trial court will not be reversed for denying his motion for a continuance.

Adkins’s next contention of error is that the court issued an attachment for him based upon a subpoena issued August 10, 1982, which was executed by C.P. Lyons and J. Max Brasher, a co-defendant in the case. Rule 45(c), A.R.Civ.P., prohibits a party to an action from serving a subpoena in that action.

The record affirmatively shows that on July 7, 1982, Adkins was served with the same subpoena informing him of the September 20, 1982, trial date. That subpoena was executed by one Ingram and one Purser, neither of whom were parties to the case. The record also discloses another subpoena informing Adkins of the June 3, 1982, trial date issued on May 28,1982, and executed by one Tice on June 1, 1982. Any error, therefore, in the service of the subpoena issued August 10, 1982, and served by Brasher and Lyons on August 25, 1982, was not prejudicial to Adkins, because Adkins had been notified of the trial dates numerous times by other duplicative subpoenas.

Adkins claims that the trial court erred in making certain statements in front of the jury. A review of the record and the context in which the statements complained about were made shows that those statements were not comments on the evidence and were not prejudicial. The observations in question were made to counsel and were either expressive of the reason for the court’s ruling on objections by counsel or for the purpose of directing the line of questioning away from topics which would not help the jury to decide the case. See Buzzanca v. Hagwood, 265 Ala. 404, 91 So.2d 703 (1956) (court’s comments were not comments on the evidence). Additionally, the court instructed the jury as follows at the beginning of the case: “Likewise, statements made by the Court are not evidence in the case either, and are not to be so considered by you.” Again, during the oral charge, the court instructed: “Likewise, statements made by the Court are not evidence in the case either and should not be considered by you.”

First, those statements were not prejudicial, and the court committed no error for which we should reverse. Second, the court instructed the jury to disregard its comments. Therefore, Adkins’s contention that the trial court usurped the function of the jury to determine the credibility of the evidence is without merit.

Adkins alleges that the trial court failed to comply with Rule 51, A.R.Civ.P., which states:

“At the close of the evidence or at such earlier time during the trial as the court reasonably directs, any party may file and, in such event, shall serve on all opposing parties written requests that the court instruct the jury on the law as set forth in the requests. The court shall inform counsel of its proposed action upon the requests prior to their arguments to the jury, but the court shall instruct the jury after the arguments are completed.”

The record shows that the court told the parties, prior to closing arguments: “Gentlemen, I would be inclined to let both counts of negligence and wantonness go to the jury.” Therefore, counsel were generally informed that the court would instruct the jury on wantonness and negligence. The rule “is designed to afford counsel an opportunity to know in advance of the argument, the guiding principles under which the argument should be made.” Dallas Railway & Terminal Co. v. Sullivan, 108 F.2d 581, 583 (5th Cir.1940).

Furthermore, the trial court stated:

“Gentlemen, I’m sorry. Let the record show that I requested counsel on Friday or Thursday to get me the written charges so that I would have an opportunity to go over them and that counsel has favored the Court this morning after nine o’clock with about a hundred and fifty some odd written charges, requested charges, and that I just don’t have time to look at all of those charges and I wish I did, but that the Court will look at those charges and try to cover everything that is requested that is felt material and pertinent to this case. And then, if I don’t, I will give counsel the chance to call that to my attention after I have finished my oral charge and I will — but as far as having an opportunity of reading the charges before the argument, I haven’t been able to do that.”

The trial court’s reference to charges pertains to those requested by Madison, Brasher, and the City of Winfield. Adkins, apparently relying on his co-defendants, did not request any charges of his own.

The trial court, in accord with Rule 51, asked the parties to submit their requests in time for him to read them. Therefore, it is Adkins, and not the trial court, who failed to comply with Rule 51. The trial court did not commit error on this point.

The next allegation of error which Adkins makes is that Jimmy Dickerson, a juror, was allowed to consult with Mr. Tweedy, a partner of Harvey Jackson, the attorney representing Adkins’s co-defendants in the case. The jury returned the same verdict against Mr. Jackson’s clients as against Adkins; therefore, it is impossible to conclude from the record that the consultation had any prejudicial effect on the jury against Adkins. Additionally, the record shows that the attorney for the Weldons and an attorney for the City of Winfield had notes reflecting that Dickerson had responded on voir dire that he was represented by Mr. Tweedy in a land transaction. Yet, none of the parties moved to strike Mr. Dickerson from the jury. Accordingly, we cannot conclude that the trial court committed any reversible error in allowing Dickerson to consult with Tweedy during the trial.

For all of the reasons discussed previously, the trial court did not commit any error which would require a new trial for Adkins, and, accordingly, the court properly denied Adkins’s motion for a new trial.

The next issue before us is whether it is proper to allow the verdict to stand against Adkins alone; when the other defendants’ motions for new trial must be granted.

Rule 59, A.R.Civ.P., states in part: “A new trial may be granted to all or any of the parties_” (Emphasis added.)

This Court addressed the issue of partial new trials in Young v. Woodward Iron Co., 216 Ala. 330, 335, 113 So. 223, 228-29 (on rehearing) (1927). In that case, the Court stated:

“At common law a judgment against two or more defendants jointly was regarded as an entirety, so that a reversal of the judgment as to one defendant required a reversal as to all. This rule, founded chiefly upon technical considerations, and now generally disfavored by the courts has been recognized as existing in this state. [Citations omitted.]
“In later cases, while the general rule is not defined, exceptions have been recognized, and the force of the old rule is now materially weakened. North Alabama Traction Co. et al. v. Hays, 184 Ala. 592, 64 So. 39; Southern R. Co. et al. v. Harris, 207 Ala. 534, 93 So. 470.
“As noted in the text of 2 Ruling Case Law, 268, § 220:
“ ‘The tendency of modern decisions is, however, to modify the strictness of the common-law rule to the extent of holding that a judgment, though joint in form, is not necessarily entire, and that, where it is several in effect, and the adjudication as to one cannot affect the rights of the others, such judgment may be reversed as to some and affirmed as to others.’ ”

The majority of decisions following the rationale of Young, and allowing a new trial for some defendants and not others, concerns defendants who received jury verdicts in their favor and whose interests would not be affected by a partial new trial. See, e.g., Trimble v. Bramco Products, Inc., 351 So.2d 1357 (Ala.1977); Harnischfeger Corp. v. Harris, 280 Ala. 93, 190 So.2d 286 (1966). On the other hand, the decisions in which this Court has held that the entire case must be remanded for a new trial deal with co-defendants whose interests are closely related. See, e.g., Lloyd Wood Construction Co., v. Con-Serv., Inc., 285 Ala. 409, 232 So.2d 649 (1970) (defendants were principal and surety on a bond); Toranto v. Hathaway, 219 Ala. 520, 122 So. 816 (1929) (defendants were master and servant).

In the case at bar, the adjudication of the interests of defendants Madison, Brasher, and City of Winfield would have no effect on the interest of Adkins. Therefore, the verdict and judgment as they relate to Adkins will stand, because the trial court committed no error with respect to him.

Because of the errors discussed above, the judgment as it relates to Madison, Brasher, and the City of Winfield must be reversed, and the cause remanded. Because Adkins failed to show any errors committed against him, the judgment denying his motion for a new trial is affirmed. It is so ordered.

AFFIRMED IN PART; REVERSED AND REMANDED IN PART.

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

      . The prejudicial error claimed by Adkins is based upon statements made by the trial court. Because many of the statements were repetitious, a partial list follows:
      "That’s enough. I think that is good enough.”
      "Gentlemen, I’m not sure that that’s going to help us in this case.
      "I’m not sure that would help us in this case, what training he had received in 1951 wherever he received it."
      “So, in considering the evidence in this case, apply your own everyday experiences in life and your own common sense. And in that respect, cut through all of the red tape or whatever — the confusion and so on, and read between the lines, so to speak, and get to the truth in the matter_”


author: ADAMS, Justice.

text:
    WARRIOR DRILLING AND ENGINEERING COMPANY, INC. v. Martha McCracken KING.
    82-568.
    Supreme Court of Alabama.
    Jan. 27, 1984.
    Mary R. McKay of Watson & Harrison, Tuscaloosa, for appellant.
    Isaac P. Espy of Gray, Espy & Nettles, Tuscaloosa, for appellee.
   ADAMS, Justice.

This is an appeal from an order granting the plaintiff’s motion for summary judgment. In the order the trial court also denied the defendant’s motion for summary judgment, and ordered the defendant, Warrior Drilling and Engineering Company, Inc. (Warrior) to pay the plaintiff, Martha McCracken King (King), $19,306.26 for royalties owed under certain mineral leases.

The case arose out of the following facts:

On November 27, 1973, D.D. McCracken and his wife, and J.E. King and his wife (the appellee in this case), executed two oil and gas leases (leases 1 and 2) to Warrior. Lease 2 included McCracken’s ⅛ interest in 180 acres of land lying to the south of the land included in lease 1, as well as all the land in lease 1. Lease 2 also provided a larger sum of money for delay rental than lease 1. Lease 2 contained a clause voiding the lease unless drilling began on the property within one year. The leases were the same in all other respects. Both allowed a ¾6 royalty to the lessors. (See diagrams following this opinion.)

On May 24, 1974, another lease (lease 3) was executed. Lease 3 mistakenly overlapped 35 acres covered by leases 1 and 2, but otherwise covered the 180 acres included in lease 2 but not in lease 1. Lease 3 included not only McCracken’s Vs interest in the 180 acres, but also the other % owned by his co-tenants. Lease 3 provided only a ⅛ royalty. Subsequent to the death of McCracken and one of his co-tenants, appellee King became owner of a Vi mineral interest in this tract. (Tract 1. See diagram.)

A well was completed on land in the North Vi of Section 4 on August 4, 1974. This land was included in leases 1 and 2. The well was capable of production, but was not connected to a pipeline until June 13,1977. In the interim, it was shut in and operations ceased. Warrior tendered, and the lessors accepted, four annual delay rental payments in the amount provided in lease 1. The first payment specifically referred to lease 2; the second did not make specific reference; and the last two referred to lease 1. After McCracken’s death, King signed a ratification showing change of ownership of lease 1. Later, she ratified lease 3. Lease 2 was never ratified.

A well was completed on the South Vi of Section 4, covered by leases 2 and 3, and began producing July 17, 1979. The question before the trial court in this case was whether King is entitled to a ¾6 royalty or a Vs royalty in this well. In its summary judgment, the trial court allowed King a ¾6 royalty in the Vs interest which came to her from McCracken, and a Vs royalty in the Vs interest which came to her from one of the other co-tenants. In other words, the trial court held that lease 2 applied to McCracken’s interest, rather than lease 3.

Warrior generally argues that the trial court’s grant of summary judgment in favor of King was error. In doing so, he raises the following questions:

1. Does the record show a genuine issue of material fact as to whether lease 2 is void?
2. Does the record show a genuine issue of material fact as to whether lease
3 was a novation, extinguishing lease 2 as to McCracken?
3. Is King estopped from asserting that lease 2 controls in this case?

We decline to consider the question of estoppel, raised for the first time on appeal. As to the other questions, we find that there are genuine issues of material fact in the record, and reverse the summary judgment.

The rule of review of a summary judgment has been set out by this court many times. The movant has the burden of negating the existence of any issue of material fact. Ryan v. Charles Townsend Ford, Inc., 409 So.2d 784 (Ala.1981); Plant v. Reid, Inc., 365 So.2d 305 (Ala.1978). All reasonable inferences from the facts are viewed most favorably to the nonmoving party. Pittman v. Martin, 429 So.2d 976 (Ala.1983); Bryant v. Morley, 406 So.2d 394 (Ala.1981). If there is any evidence supporting the position of the party against whom the motion for summary judgment is made, so that a triable issue is raised, summary judgment cannot be entered. Pittman v. Martin, supra. See also Mountain v. Collins, 430 So.2d 430 (Ala.1983); Harold Brown Builders, Inc. v. Jordan Company, 401 So.2d 36 (Ala.1981); Campbell v. Alabama Power Company, 378 So.2d 718 (Ala.1979).

With regard to the construction of instruments, this court has said that if an instrument is unambiguous, its construction and effect are questions of law which may be decided, under appropriate circumstances, by summary judgment. Federal Land Bank of New Orleans v. Terra Resources, Inc., 373 So.2d 314 (Ala.1979); Wheeler v. First Alabama Bank, 364 So.2d 1190 (Ala.1978). The case before us is unusual in that it involves three overlapping leases, all, apparently, equally unambiguous, containing conflicting provisions. Because questions of fact arise in determining which provisions apply in the present circumstances, we find summary judgment inappropriate.

Appellant Warrior argues that lease 2 terminated automatically for failure of Warrior to meet a condition of the lease, namely, the payment of delay rentals under the lease for the period of time when a well was complete, but not in production. See H. Williams, Oil and Gas Law, § 601.5 (1981). Warrior states that all delay rentals paid during that period of time were paid under lease 1. Warrior further argues that lease 2 was intended by the parties to terminate, as evidenced by the ratification by King of leases 1 and 3. We agree that the facts outlined by Warrior are evidence that lease 2 may have terminated. On the other hand, the facts that lease 2 was executed and filed in the probate court, that lease 2 contained provisions not found in lease 1, that Warrior’s president wrote a letter to King and her husband in which he referred to a lease that appears to be lease 2, and that one of the delay rental payments made reference to lease 2, are evidence that lease 2 was intended to have effect, and may not have terminated. It is true that the lease required delay rentals to be paid. However, the lease also contained the following language:

Said delay rental shall be apportionable as to said land on an acreage basis, and a failure to make proper payment or tender of delay rental as to any portion of said land or as to any interest therein shall not affect this lease as to any portion of said land or as to any interest therein as to which proper payment or tender is made. Any payment or tender which is made in an attempt to make proper payment, but which is erroneous in whole or part as to parties, amounts or depository, shall nevertheless be sufficient to prevent termination of this lease ...; provided, however, Lessee shall correct such error within thirty (30) days after Lessee has received written notice thereof from Lessor.

The foregoing language makes the payment of delay rentals in an amount other than that called for in the lease of little significance as a factor in terminating the lease, where the lessor accepted the payments without complaint. In short, we find an issue of fact regarding the effect of lease 2, rendering summary judgment in favor of either party inappropriate.

Warrior next argues that, if lease 2 did not terminate, lease 3 constituted a novation of lease 2 regarding D.D. McCracken’s interest in Tract 1.

This court has held that to establish a novation there must be: (1) a previous valid obligation; (2) an agreement of the parties thereto to a new contract or obligation; (3) an agreement that it is an extin-guishment of the old contract or obligation; and (4) the new contract or obligation must be a valid one between the parties thereto. St. Clair Industries, Inc. v. Harmon’s Pipe and Fitting Company, 282 Ala. 466, 213 So.2d 201 (1968); Friday Lumber Company v. Johnston, 278 Ala. 661, 180 So.2d 259 (1965). The trial court, in its order and judgment, found that Warrior had failed to prove the third element of a novation. It then went on to grant King a summary judgment, finding that “it would be speculative at best to determine that D.D. McCracken (from whom Plaintiff derives the ⅛ interest in Tract One) voluntarily voided a lease with a ¾6 royalty in order to bind himself to a ⅛ royalty.”

We agree with the trial court that Warrior has not proved all the elements of a novation as a matter of law. However, we find that the very fact that all of Tract 1 was covered by lease 3, while only McCracken’s interest was covered by lease 2, could have constituted incentive or consideration for McCracken to accept a lesser royalty in exchange for a greater likelihood that drilling would actually take place. In Placid Oil Company v. Taylor, 325 So.2d 313, 53 O. & G.R. 477 (La.App.1975), the Louisiana court said:

The determining factor in deciding whether a novation has been effected is the intention of the parties. The intention to novate may be shown by the character of the transaction, and by the facts and circumstances surrounding it, as well as by the terms of the agreement itself.

Placid Oil Company, 325 So.2d at 316.

There is little evidence in the record to indicate the character of the transaction surrounding the execution of lease 3, or the facts and circumstances thereof. For this reason we hold that summary judgment is not appropriate on the issue of novation.

Finally, Warrior argues that King should be estopped to assert the validity of lease 2. Warrior admits in its brief that estoppel was not pleaded or argued before the trial court. Estoppel is an affirmative defense, which must be specially pleaded. Rule 8(c), A.R.Civ.P.; Hendricks v. Blake, 291 Ala. 575, 282 So.2d 82 (1973). Generally, a defense not asserted in the trial court will not be considered for the first time on appeal. Green v. Standard Fire Insurance Company of Alabama, 398 So.2d 671 (Ala.1981). In this case we find no circumstances which would justify overriding the general rule. Therefore, we decline to consider the issue of estoppel.

The summary judgment of the trial court is reversed, and the cause is remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

TÓRBERT, C.J., and FAULKNER, AL-MON and EMBRY, JJ., concur.

      . This company is presently operating under the name of Howell Pipeline Company, Inc.

      . We note that if lease 2 terminated between 1974 and 1977, then 180 of the 185 acres composing Tract 1 (see diagram) are covered only by lease 3, which provides a ⅛ royalty.


text:
    Janice Marie Brooks ANDERSON v. Harold P. BROOKS, et al.
    82-704.
    Supreme Court of Alabama.
    Jan. 27, 1984.
    Carl W. Stolsworth, Tuscumbia, for appellant.
    Roger H. Bedford of Bedford, Bedford & Rogers, Russellville, for appellees.
   EMBRY, Justice.

This is an appeal from a trial court’s disposition of the proceeds of an insurance policy between the holders of undivided interests in business property destroyed by fire.

I

Appellant, Janice Marie Brooks Anderson, and appellee Harold P. Brooks were formerly wife and husband, but were divorced in May of 1980. Their divorce decree incorporated a separation agreement which provided that the business property would remain in the joint names of the parties.

Prior to their divorce, Anderson and Brooks purchased an interest in a tract of property. The deed to the property conveyed an undivided interest therein to Anderson, Brooks, Jerry T. Mays, Sandra Mays, Gary Vandiver and Alice Vandiver as cotenants. (The Vandivers later sold their interest in the property to the remaining cotenants.) The property and the buildings thereon were used as a furniture manufacturing plant under the business name of Southland Manufacturing Company, Inc. (Southland). Southland’s business affairs were overseen by Jerry Mays and Brooks, both before and after the divorce.

In May of 1978, Anderson and the appel-lees joined to execute a mortgage to the First National Bank of Russellville, Alabama. After the divorce of Brooks and Anderson, Brooks and Jerry and Sandra Mays executed and delivered a mortgage conveying their three-fourths interest in the business property to the First State Bank of Franklin County, Alabama.

In June of 1982, Penn American Insurance Company (Penn American) issued a policy of insurance covering the equipment and machinery of Southland Manufacturing Company against loss from fire. By endorsement dated 12 June 1982, Southland, Jerry Mays, Harold Brooks and Janice M. Brooks were listed as named insureds. At trial, there was testimony by a representative of the insurance company that this endorsement was actually backdated by the insurance company after the fire loss when they found Anderson’s name was on the deed. The policy was also endorsed: (1) to provide coverage on the two buildings situated on the business property; (2) to add as mortgagees under a “loss payable” clause the First State Bank of Phil Campbell and the First National Bank of Russellville; and (3) to name as “insureds” under the policy Southland, Jerry Mays, and Harold Brooks.

In October of 1982, Anderson filed this suit. She sought the sale and division of certain jointly owned lands, including, but not limited to, the lands the subject of the issue raised on this appeal.

In November of 1982, a fire destroyed the two buildings located on the business property and the equipment housed in those buildings. Losses were assessed by the insurance company as follows:

Contents of the buildings - $ 99,905.00
Building structures - $ 52,145.04
Total - $152,050.04

For the purposes of this appeal, the above estimates of monetary loss are not disputed.

Penn American prepared and issued a draft payable to Southland, Jerry Mays, Harold Brooks, and Janice Anderson. When Anderson refused to endorse the draft, appellees filed a motion to compel endorsement of that negotiable instrument.

The trial court granted the motion to compel and decreed that the respective ownership interests of the parties to the business property were as follows:

Janice Marie Brooks Anderson ¼ undivided interest
Harold P. Brooks 'A undivided interest
Jerry T. Mays ¼ undivided interest
Sandra Mays ¼ undivided interest

It further determined that the real estate could not be equally partitioned among the owners, and ordered that it be sold at public auction.

After the property was sold, the trial court ordered the clerk to disburse the insurance proceeds and the proceeds of the sale for division as follows:

$43,041.10 to First State Bank of Phil Campbell
$62.37 to be applied to the costs of sale
$530.00 to Hon. Carl W. Stolsworth as an attorney’s fee
$64.50 to State General Fund (Commission on Judicial Sales)
$2,006.29 to Jerry T. Mays
$2,006.30 to Sandra Mays
$2,006.29 to Harold P. Brooks
$2,006.30 to Janice Marie Brooks Anderson

Janice Anderson contends the trial court erred in the above disposition by subtracting, from her one-fourth interest in the proceeds, payment for a mortgage to which she was not a party. She contends that the “loss payable” clause under the terms of the policy gave the First State Bank of Phil Campbell no greater interest in insurance proceeds than the three-fourth interest the bank held in the real property by virtue of its mortgage.

II

Prior to our consideration of the issue presented by Anderson, we must note that this case was heard ore tenus. We will therefore not disturb the trial court’s findings of fact unless those findings are plainly and palpably erroneous. We must affirm if that court’s decree is “fairly supported by credible evidence under any reasonable aspect and is not palpably wrong or manifestly unjust.” Caudle v. Ellison, 401 So.2d 38 (Ala.1981).

III

Appellees contend the trial court should be affirmed because any error in its decision was not injurious to Anderson because she has no right to the insurance proceeds and thus no right to maintain an action against appellees for a portion of those proceeds. They rely on Independent Fire Insurance Co. v. Hagler, 434 So.2d 277 (Ala.Civ.App.1983), where it was recently held that interests of joint owners who had not contributed toward payment of an insurance premium, and who were not intended beneficiaries of the insurance contract, were not protected by that policy. The Court of Civil Appeals, in Hagler, reviewed Alabama law relative to the issue whether joint owners have an interest to insurance monies. In doing so, it quoted extensively from Miles v. Miles, 211 Ala. 26, 99 So. 187 (1924), where this court analyzed the rights of joint owners under various circumstances:

“ ‘Where one joint owner insures his interest in the property separately, he is, of course, entitled in case of loss, to recover and retain the insurance. If he insures for the benefit and at the expense of all, each is entitled to a share of the proceeds. So, if the one takes out insurance on the whole, and calls on the co-tenants to contribute to payment of the premiums, or pays them from rents of the common property, they should share therein in ease of loss. These principles are clear enough. [Citations omitted.]
“ ‘But if the insurance is taken by one only on the property as sole owner for its full insurable value, who pays the. premiums thereon, the other joint owner being no party to the transaction in any way, whether the insurance, in case of loss, inures to both, is not free from difficulty. Manifestly, the insurer in such case would have the right to avoid the policy or limit payment to the insurable value of the interest of the insured, in a proper case; but whether the other joint owner has an interest in law or equity in the insurance money so collected may properly turn on the equities of the particular case. [Emphasis added in Hagler.']
“The court [in Miles ] concluded:
“ ‘We declare it the law of Alabama that if the wife insures for her own benefit the family dwelling, owned by herself and husband jointly, pays the premiums thereon from the earnings of her .own labor, and collects the insurance, the husband cannot maintain an action at law or in equity against her for any portion thereof.’ ”

434 So.2d at 278-279.

In Hagler, the Court of Civil Appeals correctly surmised from the above, and other, authorities, that it is the law of this state that whether joint owners should share in insurance monies depends upon the equities of the particular case. See also Murray v. Webster, 256 Ala. 248, 54 So.2d 505 (1951).

We have examined the equities of this particular case and find they do not favor Anderson and do not warrant reversal of the trial court’s decision.

The insurance policy was procured by appellees, unknown to Anderson. It is undisputed she made no contribution toward the purchase of the policy and made no effort to procure insurance coverage for her one-fourth interest in Southland.

Anderson’s one-fourth interest in the business property was in no way encumbered by either the mortgage held by First State Bank or the trial court’s disposition of the insurance monies. Payment of the mortgage from the insurance proceeds under a “loss payable” clause is a matter of contract. The terms in a policy of insurance are to be given a rational and practical construction. Globe Life Insurance Company v. Howard, 41 Ala.App. 621, 147 So.2d 853 (1961).

At the time of the fire loss, Anderson was not a named insured under the policy. Mr. Odum, a representative of Penn American, made the following statement of the company’s responsibility under the policy:

“The company’s legal payment is based on the insured at the time of the loss, and if they went on that basis, then she would not have an insurable interest in this policy, because her name was not on the policy. The company did this as a back date to protect her interest after we found that her name was on the deed.
“... I asked the company to include her name on the policy, even though her name wasn’t on the policy at the time of the loss.”

The fact that the insurance company chose to issue a draft for the proceeds to all who had an insurable interest in the property and did not limit payment to the insurable value of the interests of the named insureds will not extend the coverage of the policy or alter Anderson’s interests in the monies. See Home v. Campbell, 227 Ala. 499, 150 So. 486 (1933); and Home Indem. Co. v. Reed Equipment Co. Inc., 381 So.2d 45 (Ala.1980). Because Anderson had no interest in the policy, she had no standing to raise the issue whether the proceeds were properly disposed of.

We find, based on the above facts and analysis, any error by the trial court was harmless error and did not prejudice Anderson’s rights. The judgment below is, therefore, due to be, and it is hereby, affirmed.

AFFIRMED.

TORBERT, C.J., and FAULKNER, AL-MON and ADAMS, JJ., concur.


text:
    Wilmer E. BAKER v. E.E. BALL, individually, and d/b/a Owen and Ball, Attorneys at Law.
    82-784.
    Supreme Court of Alabama.
    Feb. 10, 1984.

      Wilmer E. Baker, pro se.
    Carroll H. Sullivan of Gaillard, Little, Hume & Sullivan, Mobile, for appellees.
   EMBRY, Justice.

This is an appeal from a judgment dismissing Wilmer E. Baker’s action for damages for alleged negligence of attorney E.E. Ball in and about the handling of matters for Baker as a client of Ball.

Ball filed a Rule 12(b)(6), ARCP, motion in response to Baker’s complaints. The trial court granted the motion and denied Baker’s motion to reconsider.

Although we need not address the issue, the trial court based its ruling upon the one-year statute of limitations applicable to torts in general. This was a negligence action against an attorney. The complaint is sufficient to withstand a 12(b)(6) motion. Under the present rules of pleading, dismissal of the action was error. Rule 8(a), ARCP.

The statute of limitations is an affirmative defense and must be so pleaded. Rule 8(c), ARCP.

The applicable statute of limitations is six years. § 6-2-34, Code 1975. The action was filed well within that time period.

Por the reasons stated, the judgment below must be and it is hereby, reversed.

REVERSED AND REMANDED.

TORBERT, C.J., and MADDOX, FAULKNER, ALMON, SHORES, BEAT-TY and ADAMS, JJ., concur.

JONES, J., not sitting.