Opinion
1940027.
July 3, 1996. As Modified on Overruling of Rehearing January 3, 1997.
Appeal from the Montgomery Circuit Court, No. CV-93-1602, Joseph D. Phelps, J.
Charles E. Vercelli, Jr. and Steven A. Higgins of Nix, Holtsford Vercelli, P.C., Montgomery, for Appellants.
Kenneth J. Mendelsohn of Jemison Mendelsohn, P.C., Montgomery, for Appellees.
Register Propane Gas Company, inc., and its owner, Jerry Register (together referred to as "Register"), appeal from a judgment granting a new trial in a wrongful death action commenced by Era L. Whatley and Dorothy Blair, co-administratrixes of the estates of Clemmie Seymore, Sr., and his wife Emily Woodsen Seymore. We affirm.
This action arose out of the deaths of Clemmie and Emily Seymore on or about December 26, 1992. The personal representatives allege that the Seymores were poisoned by carbon monoxide emanating from an unvented space heater in their mobile home. The complaint alleged that Register had negligently or wantonly installed the heater, and then had negligently supplied LP gas to it. Register challenged the plaintiffs' theory as to the cause of the deaths, contending instead, that the deaths were caused by a combination of heat exhaustion, poor health, and excessive use of alcohol.
The jury returned a verdict for Register, and the trial court entered a judgment on that verdict. Subsequently, the plaintiffs moved for a new trial, contending that they had "newly discovered evidence, material to the Plaintiffs, which could not, with reasonable diligence, have been discovered and produced at the trial." After three separate hearings, the trial court set aside the judgment and granted the motion. Register appeals from the order granting a new trial.
The standard of review of an order granting a new trial on the ground of newly discovered evidence is essentially two-pronged. First, the party seeking a new trial must show that in spite of the exercise of due diligence, she did not discover the evidence until after the trial. Fries v. Acme White Lead Color Works, 201 Ala. 613, 614, 79 So. 45, 46 (1918). Second, the evidence must be of such quality "as to render probable a different result on the retrial of the case." Id. Moreover, " '[t]he determination of whether to grant . . . a new trial is for the trial judge, and an order granting or denying a motion for new trial on the basis of newly discovered evidence will not be disturbed on appeal, unless it appears that the trial court abused its discretion.' " Campbell v. Williams, 638 So.2d 804, 814 (Ala. 1994). In the following two sections, we shall address these rules more fully.
I. Due Diligence
The newly discovered evidence at issue in this case consisted of circumstances surrounding the testing and handling of blood samples taken from the bodies of the plaintiffs' decedents. Because Clemmie and Emily Seymore had died from an undetermined cause or causes, Alabama State Medical Examiner Dennis Stilwell performed autopsies on both bodies, drew blood samples from each, and sent the samples to the Alabama Department of Forensic Sciences in Auburn ("the DFS"). Using a process known as "microdiffusion," "forensic scientist" Laura Shevlin tested the samples for the presence of, among other things, carbon monoxide. Shevlin found no significant carbon monoxide level in either blood sample.
Several weeks after the first tests were conducted, Shevlin retested the samples using a "propane analysis" and a "spectrophotometer." These additional procedures also failed to reveal the presence of a significant amount of carbon monoxide in either sample.
Before the trial of this action, both sides in the dispute determined to obtain from DFS quantities of the decedents' blood to be tested in facilities of their choosing. The plaintiffs contacted DFS director Carlos Rabren, seeking such samples but were told that DFS had none available for release. Similarly, Register's attorneys, who asked Laura Shevlin, personally, for samples, were told that no blood was available. Being pressed further about the matter, however, Shevlin ultimately provided Register with blood samples. Register's samples were sent to National Medical Services, Inc. ("NMS"), a laboratory in Philadelphia, Pennsylvania, for additional testing.
On March 30, 1994, Dr. Robert Middleberg tested the blood at NMS with a spectrophotometer; this test produced a graph showing a carbon monoxide level of 29.9898% in Emily Seymore's blood sample. On April 2, 1994, Middleberg telephoned Register's attorney and informed him of this graph showing. However, Middleberg also stated that the graph figure was a "false positive," and that testing on Emily's blood was not yet completed. Indeed, on April 4, 1994, personnel at NMS conducted a second spectrophotometric test on the blood sample, resulting in a graph figure of 33.8025%. Middleberg also retested Emily's blood using the micro-diffusion method. On or about April 4, 1994, Middleberg concluded — based, apparently, on the microdiffusion results and on his observations of the physical characteristics of Emily's blood — that it contained a carbon monoxide level of 2%. He concluded that Clemmie's blood contained a carbon monoxide level of 7%.
Meanwhile, on April 2, 1994, approximately 36 hours before the trial was scheduled to begin, Register's attorney telephoned the plaintiffs' counsel and apprised him, for the first time, that Register had commissioned these independent tests. Register's attorney stated that the testing on Emily Seymore's blood had not been completed, but that he would "produce the documents from NMS." Brief of Appellee, at 18.
The trial began on April 4, 1994. During the trial, Dr. Middleberg testified in person and submitted a three-page report containing his conclusions regarding the level of carbon monoxide in the body of each decedent. On April 7, 1994, the jury returned a verdict for Register.
On April 12, 1994, the plaintiffs moved for an order requiring DFS to provide them with samples of blood On April 15, 1994, the trial court ordered DFS to "produce to [the] Plaintiffs' attorneys the Seymore blood samples and one or more control samples taken from the same time period in a manner similar to the manner in which the blood samples were produced to the Defendant's attorney by Ms. Shevlin." (Emphasis added.)
The transfer of these samples from Shevlin to the plaintiffs' attorney was recorded on a videotape, which depicts the samples in plastic containers. The samples were then sent to Alabama Reference Laboratories, Inc. ("ARL"), for testing. According to ARL's tests, Emily Seymore's blood and Clemmie Seymore's blood contained carbon monoxide levels of 9.6% and 5.3%, respectively.
The circumstances under which the plaintiffs became aware of the availability of the blood samples and became aware of the containers in which they were being stored and transferred are significant in regard to the first prong of the new-trial standard. It is not disputed that the plaintiffs learned only after the trial that DFS was storing or shipping blood samples in plastic containers. The significance of the manner of containment and shipping will be discussed more fully in Part II.
Moreover, although the plaintiffs eventually — with the aid of a post-trial court order — were able to obtain blood samples from DFS, they can scarcely be charged with failure to exercise due diligence, given that the director misled them. In other words, the plaintiffs can hardly be faulted for failing to subpoena samples that they reasonably could have believed did not exist. Thus, we conclude that the first prong of the test is satisfied.
II. Probability of a Different Result on Retrial
As "corollaries" to the second prong of the new-trial test, "the courts have [stated] . . .: (a) That the newly discovered evidence must be material and competent to the issue of fact originally tried; (b) that it must be not merely impeaching evidence; (c) that it must not be merely cumulative." Fries v. Acme White Lead Color Works, 201 Ala. 613, 614, 79 So. 45, 46 (1918). See also Welch v. Jones, 470 So.2d 1103 (Ala. 1985). Satisfaction of these requirements tends to ensure that the retrial of the cause will not be a waste of time and resources. For the following reasons, we conclude that these requirements are satisfied in this case.
As to the first corollary, we note that the primary evidence material to the argument for a new trial is the videotape of the delivery of the samples to the plaintiffs' attorney. The materiality of that evidence lies in the manner in which the samples were stored at, and the manner in which they were shipped from, DFS. In this connection, the plaintiffs submitted the affidavit of Dr. Joseph L. Burton, identified as the "chief medical examiner for [certain] counties in metropolitan Atlanta, Georgia." He testified as follows:
"The method in which Ms. Shevlin maintained these blood samples that were furnished to the parties was not the recommended method of preserving blood for . . . carbon monoxide determination. The proper way to preserve such samples is to place blood in a vacutainer or a tightly stoppered container with a preservative, such as sodium fluoride. Any test run to determine carbon monoxide on samples taken from these plastic bottles most probably would not be reliable, especially blood that has remained in those plastic bottles for sixteen months.
"In my professional opinion, the test results performed [sic] by National Medical Services and by Alabama Reference Lab do not support Laura Shevlin's negative test results. In fact, they refute Ms. Shevlin's testimony.
"Virtually nothing can cause blood to produce carbon monoxide. Thus, if Ms. Shevlin's original tests were accurate, and the Seymores had not been exposed to carbon monoxide, nothing could have happened during the sixteen months between the deaths and these final tests that would produce carbon monoxide in the blood. The fact that unpreserved, deteriorated blood is positive for carbon monoxide shows that Ms. Shevlin's original tests were wrong and that the subsequent tests by National Medical Services and Alabama Reference Laboratory totally contradict her original test results.
"In light of the fact that the blood tests were performed some sixteen months after the deaths of the Seymores, in my opinion, the carbon monoxide level in the Seymores at the time of their deaths, reasonably would have been much higher than that shown by Alabama Reference Lab or National Medical Services.
"At the trial, I testified, in substance, that Ms. Shevlin's blood tests should be disregarded. Now I am firmly convinced . . . that her test results were inaccurate. After seeing how the blood was preserved for the purpose of the tests by National Medical Services and Alabama Reference Laboratory, and in light of the tests run by those two labs, I am firmly convinced that the Seymores died of carbon monoxide poisoning."
(Emphasis added.) Additionally, Register, himself, introduced an article from a professional journal stating: "Postmortem carbon monoxide (saturation) may remain stable for at least 4 months in sealed vials. However, if the blood vial is not tightly sealed, the CO may be lost. These losses can be best explained by passive diffusion of CO gas. . . ." The Effects of Storage Conditions on the Stability of Carbon Monoxide in Postmortem Blood, Journal of Analytical Toxicology, Sept.-Oct. 1985, at 202, 205.
As this evidence demonstrates, the videotape interjected an entirely new theory as to the relevance of any of the various test results. At the trial, the evidence bearing most persuasively, perhaps, on the cause of death — the primary issue in the case — was the evidence of the blood test results, which tended to negate carbon monoxide as the cause. Under the facts as presented at that time, the tests performed by NMS and Dr. Middleberg appeared to reinforce Shevlin's results, even though Dr. Middleberg detected more carbon monoxide in the blood of the decedents than did Shevlin. However, because carbon monoxide apparently does not spontaneously materialize in blood, under the theory provoked by the videotape the presence — in allegedly improperly preserved samples — of significant carbon monoxide levels, strongly suggested, for the first time, that Shevlin's tests were flawed. In other words, the theory goes, storing and shipping blood in the plastic containers depicted in the videotape allowed an indeterminate volume of carbon monoxide to dissipate, effectively nullifying all the tests.
The logical result of the videotape evidence was thus to negate the blood samples as factors for consideration. The result of this new evidence, if believed by the jury, would posture the cause as if no blood samples had been taken in the first instance. The negation of blood test evidence would leave the jury with nothing but the general circumstances surrounding the deaths and the testimony of several witnesses, including Alabama State Medical Examiner Dennis Stilwell. He explained that he had initiated the carbon monoxide testing because, in his physical examinations of the bodies, he had "detected a slight pinkish tint to the bodies, which," he stated, "is also suspect to carbon monoxide poisoning." Moreover, he stated that he had been "surprised" by the negative results of Shevlin's tests and that he could determine no other cause of the deaths.
Finally, where the newly discovered evidence "tends to destroy or obliterate the effect of the evidence upon which the verdict rested it is more than impeaching for . . . its tendency would be to defeat the verdict returned." Reynolds v. City of Birmingham, 29 Ala. App. 505, 507, 198 So. 360, 362 (1940) (emphasis added). Such is the evidence in this case.
In short, we cannot say that the trial court abused its discretion in granting a new trial. Consequently, the new trial order is affirmed.
AFFIRMED.
SHORES, KENNEDY, and INGRAM, JJ., concur.
ALMON, J., concurs in the result.
HOOPER, C.J., and MADDOX, HOUSTON, and BUTTS, JJ., dissent.
Emily Seymore was found dead in her mobile home on December 20, 1992. At the time of her death, Ms. Seymore was over 60 years of age, had a blood alcohol content of approximately .266%, and had a history of health problems. Ms. Seymore's body had already begun to decompose when it was discovered. Clemmie Seymore was found alive and gasping for breath in the same room with his wife Emily; however, he died shortly thereafter. Mr. Seymore, who was in his mid-60s, also had a history of health problems. The room in which the Seymores were discovered was extremely hot. The witness who discovered the Seymores described the temperature in the room as being like that in an enclosed automobile that has been exposed for an extended period to the summer sun — hot to the point of causing difficulty in breathing. Tests using infrared technology indicated that the surface temperatures in the area of the room where Ms. Seymore was found could have been between 140° and 150° F. and that the surface temperatures in the area where Mr. Seymore was found could have approached 120° F. The excessive heat within the mobile home was caused by a 40,000 BTU unvented gas space heater that had been operating on high for an undetermined time. The windows and doors of the mobile home were closed; the temperature outside was in the "upper 50s." Because of Mr. Seymore's cold-natured tendencies, it was not unusual for the Seymores to keep their mobile home uncomfortably hot throughout the year.
Multiple tests performed on the Seymores' blood by state forensic toxicologist Laura Shevlin of the Alabama Department of Forensic Sciences were negative for the presence of "carboxyhemoglobin." According to Ms. Shevlin, the results of her tests did not indicate that the Seymores had died of carbon monoxide poisoning. At the defendants' request, Ms. Shevlin provided them one-half of her remaining samples of the Seymores' blood for further independent testing. The defendants submitted their blood samples for testing to National Medical Services, Inc. ("NMS"), an established medical testing laboratory in Pennsylvania. Dr. Robert Middleberg, the director of forensic toxicology at NMS, telephoned the defendants' attorney two days before the trial and discussed with him the fact that Mr. Seymore's blood had tested positive for an insignificant level of carboxyhemoglobin. Dr. Middleberg further acknowledged that an initial test on Ms. Seymore's blood had suggested the presence of a significant level of carboxyhemoglobin at the time of her death. Dr. Middleberg explained, however, that the presence of a large concentration of decomposition products in the blood had distorted the result of the initial test and, therefore, that the initial "false positive" result was scientifically incorrect. Dr. Middleberg told the defendants' attorney that Ms. Seymore's blood would be retested two days later. The defendants' attorney immediately notified the plaintiffs' attorney that Dr. Middleberg had found an insignificant level of carboxyhemoglobin in Mr. Seymore's blood, but that he had not determined whether Ms. Seymore's blood also contained the substance. The defendants' attorney did not inform the plaintiffs' attorney that the initial test performed by Dr. Middleberg on Ms. Seymore's blood had produced a "false positive" result. NMS notified the defendants' attorney on the first day of the trial that Ms. Seymore's blood contained an insignificant level of carboxyhemoglobin. This information, which strongly supported the defendants' position that heat stroke, not carbon monoxide, had caused the Seymores' deaths, was immediately relayed to the plaintiffs' attorney. The parties proceeded to try the case. The plaintiffs presented the testimony of Dr. Joe Burton, a forensic pathologist, who testified that, in his opinion, the Seymores had died of carbon monoxide poisoning. Dr. Burton had nothing to say at the trial that was critical of the way in which Ms. Shevlin had received, tested, and stored the Seymores' blood samples at her laboratory. Dr. Burton's conclusion that the Seymores had died of carbon monoxide poisoning was based on his belief that any other conclusion "just [wouldn't] add up." In addition to the testimony of Ms. Shevlin and Dr. Middleberg that the Seymores had an insignificant (nonlethal) level of carboxyhemoglobin at the time of their deaths, the defendants also presented the testimony of Dr. Kris Sperry, deputy chief medical examiner for the Fulton County medical examiner's office in Atlanta, Georgia; his testimony supported their theory that the Seymores had not died of carbon monoxide poisoning. After considering all of the evidence, the jury found for the defendants.
Carbon monoxide is a gas. When inhaled, it bonds much more easily with a person's hemoglobin (the oxygen-carrying cells in the blood) than oxygen does. The bonding of the carbon monoxide with the hemoglobin produces carboxyhemoglobin. Thus, the tests conducted by Ms. Shevlin were for the purpose of detecting carboxyhemoglobin.
Ms. Shevlin reserved the other half of her samples for the plaintiffs in the event that they also made such a request. The plaintiffs contacted the director of the Alabama Department of Forensic Sciences, who erroneously informed them that there was no additional blood left for testing. The plaintiffs never contacted Ms. Shevlin. Thus, the plaintiffs had no independent tests run on the remainder of the Seymores' blood samples before the trial.
The plaintiffs subsequently moved to compel the Alabama Department of Forensic Sciences to produce the remainder of the Seymores' blood samples for further testing. The trial court granted that motion, and the plaintiffs sent the blood samples to Alabama Reference Laboratories, Inc., in Montgomery. A legal assistant to the plaintiffs' attorney also contacted Dr. Middleberg by telephone. During this conversation, Dr. Middleberg discussed the tests that he had performed on Ms. Seymore's blood, and he mentioned that he had conducted tests during the week before the trial. After Alabama Reference Laboratories had reported to the plaintiffs that the blood samples submitted to it had also revealed insignificant levels of carboxyhemoglobin (levels consistent with that of a tobacco smoker), the plaintiffs moved to compel the production of all the documents in the possession of Dr. Middleberg and NMS relating to NMS's testing of the Seymores' blood. The trial court granted the motion, and the plaintiffs learned of the "false positive" result obtained by Dr. Middleberg. The plaintiffs then moved for a new trial, arguing that the "false positive" test result was newly discovered evidence that probably would have changed the jury's verdict if it had been presented during the trial. Dr. Middleberg testified during the hearing on the new trial motion, without contradiction, that the "false positive" result obtained from the first test conducted by NMS on Ms. Seymore's blood was caused by decomposition products in the sample and that that result was confirmed to be scientifically incorrect. With this evidence before it, the trial court granted the plaintiffs' motion for a new trial on the ground of newly discovered evidence.
Our standard of review in this case was succinctly stated in Weeks v. Danford, 608 So.2d 387, 388-89 (Ala. 1992):
"The ruling on a motion for new trial is within the trial court's discretion and will not be disturbed on appeal 'unless some legal right was abused and the record plainly and palpably shows that the trial court was in error.' Gold Kist, Inc. v. Tedder, 580 So.2d 1321, 1322 (Ala. 1991) (citations omitted). In order to be entitled to a new trial on the ground of newly discovered evidence, the movant must show that the evidence was discovered after trial, that it could not have been discovered with due diligence prior to trial, that it is material to the issue and not merely cumulative or impeaching, and that it is of such a nature that a different verdict would probably result if a new trial were granted. Talley v. Kellogg Co., 546 So.2d 385 (Ala. 1989)."
The defendants concede that the "false positive" test result came to the attention of the plaintiffs after the trial. However, the defendants argue, among other things, that the evidence of the "false positive" result was not material to the issue concerning the carboxyhemoglobin content of Ms. Seymore's blood; was possibly relevant only for impeachment purposes; and was not sufficient to support the trial court's finding that the presentation of the evidence to another jury would probably result in a verdict for the plaintiffs.
After carefully examining the record and the briefs, I can conclude only that the trial court abused its discretion in granting the plaintiffs a new trial on the ground of newly discovered evidence. The record clearly indicates that although a fact question was presented as to whether the Seymores had died from carbon monoxide poisoning or from heat stroke, there was more than ample evidence to support a finding that heat stroke was the cause of the Seymores' deaths. Obviously impressive to the jury was the complete absence of any toxicological evidence suggesting that the Seymores had died of carbon monoxide poisoning. The record also clearly indicates that the evidence of the "false positive" test result obtained by Dr. Middleberg was discovered by the plaintiffs after the trial. Thus, the dispositive issue presented to the trial court was whether this evidence was material and justified allowing the plaintiffs the opportunity to present the evidence to a new jury.
The only witness to testify at the hearing on the new trial motion was Dr. Middleberg. Dr. Middleberg testified that the "false positive" result obtained from the first test conducted by NMS on Ms. Seymore's blood was unquestionably caused by decomposition products in the blood sample (the undisputed evidence showed that Ms. Seymore had died before Mr. Seymore died and that when her body was found she had been dead long enough for rigor mortis to set in) and that that result was subsequently confirmed to be scientifically incorrect. The plaintiffs presented no evidence to dispute Dr. Middleberg's testimony in this respect. It is quite obvious from my reading of the record that the intricacies of toxicological testing of the nature involved in this case are well beyond the knowledge and understanding of the average layman. The results of complicated blood tests do not stand alone, totally independent of the interpretations placed on those results by the individuals possessing the expertise to evaluate them. The trial court had no evidence before it from which it could reasonably conclude that the "false positive" test result was anything other than meaningless, from a scientific viewpoint. Thus, there was no evidentiary basis to support the trial court's finding that the evidence of the "false positive" test result was "material," in the sense that it could assist another jury by shedding light on the issue of the cause of the Seymores' deaths. Furthermore, without some evidence calling into question the correctness of Dr. Middleberg's assessment of the "false positive" test result, the trial court had no evidentiary basis for concluding that the "false positive" result was substantive evidence that the Seymores had died of carbon monoxide poisoning. The evidence would possibly have been useful to the plaintiffs for impeachment purposes when cross-examining Dr. Middleberg; however, under our case law, a new trial is not warranted if the newly discovered evidence is useful only for impeachment purposes. Finally, the uncontradicted nature of Dr. Middleberg's testimony with respect to the "false positive" test result foreclosed the finding by the trial court that the evidence of that result would probably cause a different jury to reach a different verdict if the case were tried again. Another jury would most certainly be instructed to base its verdict on the evidence and not to speculate as to whether the "false positive" test result indicated that Ms. Seymore might have had a significant amount of carboxyhemoglobin in her blood at the time of her death. In the absence of other evidence suggesting that Dr. Middleberg was wrong about the relevance of the "false positive" result, it is not reasonable to conclude that another jury, even if presented with the "false positive" test result, would probably return a verdict for the plaintiffs.
The plaintiffs submitted an affidavit from Dr. Burton.
I further note that the majority's reliance on evidence concerning the manner in which Ms. Shevlin stored the Seymores' blood samples is misplaced. (In fact, the plaintiffs do not even argue this particular issue in their brief. The plaintiffs argue that the "false positive" test result was the newly discovered evidence that required a new trial.) As noted, I can find no evidence in the record critical of the manner in which the blood samples were received, tested, and stored by Ms. Shevlin (other than Dr. Burton's -affidavit, which was submitted after the trial in support of the new trial motion). Even Dr. Burton testified during the trial as follows:
"Q. As I understand your testimony to the ladies and gentlemen of the jury, it's your opinion that the Seymores died of carbon monoxide asphyxiation?
"A. Yes, sir.
"Q. And it is your opinion, despite the evidence that there is negative CO returned by Laura Shevlin from the Alabama Forensic Laboratory?
"A. Yes, sir. I fully appreciate the fact that more than one test was done on the samples and they were all negative.
"Q. And you, in fact, don't know of anything wrong with the way any of those tests were done; do you?
"A. I don't, no, sir.
"Q. And you don't know [of] anything wrong with any of the chain of custody in any of those cases; do you?
"A. No, sir.
"Q. In fact, you can't criticize the way in which Dr. Stillwell drew his test samples; can you?
"A. I'm not criticizing either Dr. Stillwell, the lab, or anything else, no, sir.
"Q. They just don't add up, in your opinion?
"A. That's right."
Any inquiry as to whether the test results that were obtained by Ms. Shevlin, or those that were later obtained by Dr. Middleberg, could have been distorted as the result of the manner in which the blood samples were stored at the Alabama Department of Forensic Sciences, could have, and should have, been made before the trial. All the people responsible for collecting, handling, and testing the Seymores' blood samples were known to the plaintiffs before the trial. Although the plaintiffs' attorney was notified of Dr. Middleberg's test results only two days before the trial, the record quite clearly shows that the defendants' attorney offered to delay the trial so that the plaintiffs could adequately explore the importance of the new test results. The plaintiffs' attorney declined this offer on the ground that he believed the new test results, which showed the presence of low levels of carbon monoxide in the Seyrnores' blood, actually supported the plaintiffs' theory of the case. Thus, the plaintiffs proceeded to trial after making a conscious, tactical decision that they did not need to explore any issue concerning whether the test results obtained by either Ms. Shevlin or Dr. Middleberg could have been skewed by the manner in which Ms. Shevlin had stored the blood samples. Simply put, the evidence concerning the manner in which Ms. Shevlin stored the Seymores' blood after she had received and initially tested it was not newly discovered evidence. Evidence is not newly discovered if, through the exercise of due diligence, it could have been discovered before the trial. Weeks v. Danford, supra.
Based on the above, I would hold that the trial court's order granting the plaintiffs a new trial, lacking, as it does, an evidentiary foundation, is plainly and palpably wrong; therefore, I would reverse and remand.
HOOPER, C.J., and MADDOX and BUTTS, JJ., concur.
On Application for Rehearing
COOK, Justice.
APPLICATION OVERRULED; OPINION MODIFIED.
ALMON, SHORES, KENNEDY, and INGRAM, JJ., concur.
HOOPER, C.J., and MADDOX, HOUSTON, and BUTTS, JJ., dissent.