FILED

February 21, 1997

Cecil W. Crowson

Appellate Court Clerk

IN THE COURT OF APPEALS OF TENNESSEE

MIDDLE SECTION AT NASHVILLE

WASTE MANAGEMENT, INC. )

OF TENNESSEE, )

)

Plaintiff/Appellee, )

) Davidson Circuit

) No. 88C-462

VS. )

) Appeal No.

) 01A01-9504-CV-00182

SOUTH CENTRAL BELL )

TELEPHONE COMPANY, )

)

Defendant/Appellant. )

APPEAL FROM THE CIRCUIT COURT FOR DAVIDSON COUNTY

AT NASHVILLE, TENNESSEE

THE HONORABLE THOMAS W. BROTHERS, JUDGE

For the Plaintiff/Appellee: For the Defendant/Appellant:

Angus Gillis, III Steven E. Anderson

SCHULMAN, LeROY & BENNETT BASS, BERRY & SIMS

Nashville, Tennessee Nashville, Tennessee

MODIFIED AND REMANDED

WILLIAM C. KOCH, JR., JUDGE
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O P I N I O N

This appeal stems from an incident in which a piece of broken telephone

pole being dragged behind a garbage truck struck a pedestrian. The pedestrian

sued the owner of the truck, the truck driver, and the telephone company in the

Circuit Court for Davidson County. After the truck’s owner settled all the

pedestrian’s claims, the trial court conducted a bench trial on the remaining claims

between the truck owner and the telephone company and awarded the truck owner

a $27,114.47 judgment against the telephone company. On this appeal, the

telephone company asserts that the final judgment is inconsistent with the trial

court’s initial finding that the intervening negligence of an unknown driver, not

the telephone company’s installation or maintenance of its equipment,

proximately caused the pedestrian’s injuries. We find that the judgment must be

modified because of the lack of evidence establishing a causal connection between

the pedestrian’s injuries and the telephone company’s installation and

maintenance of its lines and poles.

I.

Glenn Griggs drove a garbage truck for Waste Management, Inc. in

Nashville. On October 17, 1987, a metal bracket on the right rear of his truck

snagged some overhead telephone lines as he made a right turn from Wedgewood

Avenue onto Beech Avenue. Mr. Griggs did not realize that the telephone lines

had become ensnarled on the back of his truck and kept driving down Beech

Avenue. The increased tension on the lines broke a nearby telephone pole, and

the top piece of the pole, still attached to the tangled lines, careened down the

street behind Mr. Griggs’s truck. Mr. Griggs did not stop his truck until he heard

the second telephone pole break. Only then did he discover that he had been

dragging a piece of the broken telephone pole behind his truck and that it had

struck and injured Mary Owen who had been standing in the roadway on Beech

Avenue. 

Ms. Owen sued Waste Management, Inc. and Mr. Griggs for $750,000.

Waste Management, Inc. filed a third-party complaint against South Central Bell
1The challenge to Waste Management, Inc.’s contribution claim was based on the

apparent repudiation of contribution among joint tortfeasors in McIntyre v. Balentine, 833

S.W.2d 52, 58 (Tenn. 1992) (holding that “the Uniform Contribution Among Joint Tort-feasors

Act . . . will no longer determine the apportionment of liability between codefendants”).

2The trial court stated: “But most importantly, I specifically - this is for the purposes of

the record - do find that the technical violation of the statutory provisions as far as the height of

the wire is not the proximate cause of this particular event which has occurred and the injuries

which were suffered which were the basis of this settlement.”

3The trial court stated: “The absolute most guilty party in this matter is whoever hit this

guy wire. That’s whose negligence is responsible for these injuries.. . . apparently somebody -

probably even the night before which we just don’t know, and at some recent time, ran into this

guy wire, and they’re the people whose negligence is mostly responsible, and I do find that

supports the argument for intervening cause to come in and break the chain of responsibility that

may be there.”

-3-

Telephone Company alleging negligent maintenance of the telephone wires and

poles. South Central Bell filed a cross-claim against Waste Management, Inc. and

Mr. Griggs for damages to its equipment. Ms. Owen dismissed all her claims in

early 1990 after Waste Management, Inc. agreed to pay her $275,000. South

Central Bell thereafter amended its answer to challenge Waste Management, Inc.’s

right to seek contribution or indemnity1 and to assert that Ms. Owen’s injuries had

been caused by the negligence of an unknown motorist who had severed a guy

wire on one of the poles before the incident with Waste Management, Inc.’s truck.

Following a bench trial in September 1994, the trial court decided that

comparative fault principles applied to South Central Bell’s property damage

claim against Waste Management, Inc. but not to Waste Management Inc.’s

contribution claim against South Central Bell. It then found that South Central

Bell had not complied with the height requirements of the National Electric Safety

Code when it installed its telephone line but that this “technical violation” did not

cause Ms. Owen’s injuries.2 The trial court specifically found that Ms. Owen’s

injuries were caused by an unknown driver who, in an earlier unrelated incident,

had severed the guy wire supporting one of the broken telephone poles thereby

causing the telephone lines to drop low enough to be snagged by a passing vehicle

like Waste Management, Inc.’s garbage truck.3 Accordingly, the trial court

dismissed Waste Management, Inc.’s contribution claim against South Central

Bell.
4

In light of its allocation of ten percent of the fault to South Central Bell, the trial court

reasoned that Waste Management, Inc. was entitled to $27,500 (10% of the $275,000 paid to Ms.

Owen). It also determined that South Central Bell’s $485.53 property damage judgment should

be deducted from this award. Subtracting $485.53 from $27,500 leaves $27,014.47. Thus, the

judgment for $27,114.47 contains a $100 arithmetic error. 

-4-

The trial court then turned to South Central Bell’s claim for the damage to

its equipment. Notwithstanding its earlier findings with regard to causation, the

trial court assessed sixty percent of the fault to the unknown driver who severed

the guy wire; thirty percent of the fault to Waste Management, Inc. because Mr.

Griggs should have seen the telephone wire hanging over Beech Avenue; and ten

percent of the fault to South Central Bell. Since the parties had stipulated that the

telephone company’s damages were $1,618.46, the trial court awarded South

Central Bell a $485.53 judgment against Waste Management, Inc. 

Waste Management, Inc. filed a post-judgment motion requesting the trial

court to alter or amend the dismissal of its contribution claim in light of a recently

released Tennessee SupremeCourt decision holding that contribution actions tried

or retried after the McIntyre v. Balentine decision should be tried in accordance

with comparative fault principles. See Bervoets v. Harde Ralls Pontiac-Olds, Inc.,

891 S.W.2d 905, 908 (Tenn. 1994). The trial court granted this motion and

departing from its original findings, determined that Ms. Owen’s injuries were

caused sixty percent by the negligence of the unknown driver who severed the guy

wire, thirty percent by the negligence of Waste Management, Inc., and ten percent

by the negligence of South Central Bell. Accordingly, the trial court awarded

Waste Management, Inc. a $27,114.274 judgment against South Central Bell.

II.

South Central Bell attaches great significance to the trial court’s original

causation findings and asserts that the trial court’s subsequent allocation of fault

on Waste Management’s contribution claim cannot stand because it conflicts with

these findings. We find no inconsistency. Rather, we find that the trial court

simply changed its mind with regard to the causation issue between the time it

rendered its initial decision and the time it granted Waste Management, Inc.’s

motion to alter or amend.
-5-

A judgment adjudicatingall the claims between all the parties becomes final

thirty days after entry unless one of the parties files a Tenn. R. Civ. P. 59 motion.

A trial court has the authority to alter or amend its judgment before it becomes

final. Jerkins v. McKinney, 533 S.W.2d 275, 280 (Tenn. 1976); Newport Hous.

Auth., Inc. v. Hartsell, 533 S.W.2d 317, 320 (Tenn. Ct. App. 1975). Thus, as long

as its judgment has not become final, the trial court may change its mind after

reconsidering the proof and the applicable law. Dowling v. Fawver, C.A. No. 715,

1987 WL 20190, at *6 (Tenn. Ct. App. Nov. 25, 1987) (No Tenn. R. App. P. 11

application filed). 

The trial court originally ruled from the bench that the negligence of the

unknown driver, not South Central Bell’s failure to install its lines at the required

height, proximately caused Ms. Owen’s injuries. This finding provided the basis

for the judgment dismissing Waste Management, Inc.’s contribution claim and

awarding South Central Bell $485.53. This judgment, however, never became

final because Waste Management, Inc. filed a timely Tenn. R. Civ. P. 59.04

motion. After reconsidering the evidence using comparative fault principles, the

trial court changed its mind on the question of causation. Rather than allocating

one hundred percent of the fault to the unknown driver, it allocated sixty percent

of the fault to the unknown driver, thirty percent of the fault to Waste

Management, Inc., and ten percent of the fault to South Central Bell.

The trial court’s original causation findings lost their legal significance

when the trial court changed its mind and entered a final judgment allocating fault

among three parties. The final judgment is internally consistent, and thus we need

not concern ourselves with inconsistencies between the original and final

judgments or with the internal inconsistencies in the original judgment. Since a

trial court sitting without a jury may change its mind before a judgment becomes

final, we hold that the trial court did not err when it changed its mind about

causation and entered a final judgment different from its original causation

findings. 

III.
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Negligence law in Tennessee has undergone a dramatic metamorphosis

during the past decade. The most noted change came with the Tennessee Supreme

Court’s decision to replace the contributory negligence with a modified

comparative fault system. McIntyre v. Balentine, 833 S.W.2d 52, 56 (Tenn.

1992). This change, however, was preceded by another significant development.

One year earlier, the court altered the analytical framework of common-law

negligence actions.

Prior to 1991, the prevailing view was that common-law negligence causes

of action were made up of three component parts: (1) a duty of care owed by the

defendant to the plaintiff, (2) conduct by the defendant breaching that duty, and

(3) an injury that was proximately caused by the defendant’s conduct. Lindsey v.

Miami Dev. Corp., 689 S.W.2d 856, 858 (Tenn. 1985); Shouse v. Otis, 224 Tenn.

1, 7, 448 S.W.2d 673, 676 (1969); DeGlopper v. Nashville Ry. & Light Co., 123

Tenn. 633, 642-43, 134 S.W. 609, 611 (1911). In 1991 the supreme court

redefined these components by separating the injury component from the

causation component and by bifurcating causation into two separate components.

Accordingly, common-law negligence causes of action are now understood to

contain five elements; (1) a duty of care owed by the defendant to the plaintiff, (2)

conduct by the defendant breaching that duty, (3) an injury or loss to the plaintiff,

(4) causation in fact, and (5) proximate or legal cause. McClenahan v. Cooley,

806 S.W.2d 767, 774 (Tenn. 1991). 

 Causation in fact and legal cause are very different concepts, Ridings v.

Ralph M. Parsons Co., 914 S.W.2d 79, 83 (Tenn. 1996); Kilpatrick v. Bryant, 868

S.W.2d 594, 598 (Tenn. 1993), and distinguishing between them has been hailed

by some as one of the most helpful of the recent breakthroughs in negligence

jurisprudence. See, e.g., 4 Fowler V. Harper et al., The Law of Torts § 20.2 n.1

(2d ed. 1986); Victor E. Schwartz, Comparative Negligence § 4.1, at 89 (3d ed.

1994). Causation in fact refers to the cause and effect relationship that must be

established between the defendant’s conduct and the plaintiff’s loss before

liability for that particular loss will be imposed. Joseph H. King, Jr., Causation,

Valuation, and Chance in Personal Injury Torts Involving Preexisting Conditions

and Future Consequences, 90 Yale L.J. 1353, 1353 (1981). On the other hand,
5Bain v. Wells, App. No. 01S01-9603-CV-00049, 1997 WL 9056, at *8 (Tenn. Jan. 13,

1997) (For Publication).

-7-

legal cause connotes a policy decision by the judiciary to deny liability for

otherwise actionable conduct. Bain v. Wells, ___ S.W.2d ___, ___ (Tenn. 1997);5

George v. Alexander, 931 S.W.2d 517, 521 (Tenn. 1996). It requires the courts

to establish the boundary of legal liability, Kilpatrick v. Bryant, 868 S.W.2d at

598, using mixed considerations of logic, common sense, justice, policy, and

precedent. Smith v. Gore, 728 S.W.2d 738, 749 (Tenn. 1987); Lancaster v.

Montesi, 216 Tenn. 50, 56, 390 S.W.2d 217, 220 (1965). 

The defendant’s conduct must be a cause in fact of the plaintiff’s loss before

there can be liability under negligence or any other theory of liability. Harper,

supra, § 22.16, at 400; Schwartz, supra, § 4-1(a), at 90. Thus, no negligence

claim can succeed unless the plaintiff can first prove that the defendant’s conduct

was the cause in fact of the plaintiff’s loss. Lancaster v. Montesi, 216 Tenn. at 55,

390 S.W.2d at 220 (stating that “[i]f . . . defendant’s conduct . . . was not a factor

in causing plaintiff’s damage, that ends the matter.”); Drewry v. County of Obion,

619 S.W.2d 397, 398 (Tenn. Ct. App. 1981) (stating that “[p]roof of negligence

without proof of causation is nothing.”); Carney v. Goodman, 38 Tenn. App. 55,

61, 270 S.W.2d 572, 575 (1954). The inquiry is not a metaphysical one, but rather

a common sense analysis of the facts that lay persons can undertake as

competently as the most experienced judges. Restatement (Second) of Torts § 431

cmt. a (1965); Harper, supra, § 20.2, at 91; W. Page Keeton, Prosser and Keeton

on the Law of Torts, § 41, at 264 (5th ed. 1984). 

Tennessee’s courts have consistently recognized that conduct cannot be a

cause in fact of an injury when the injury would have occurred even if the conduct

had not taken place. Shouse v. Otis, 224 Tenn. at 8, 448 S.W.2d at 676;

Fairbanks, Morse & Co. v. Gambill, 142 Tenn. 633, 643-44, 222 S.W. 5, 8 (1920);

Deming v. Merchants’ Cotton-Press & Storage Co., 90 Tenn. 306, 353, 17 S.W.

89, 99 (1891). This principle has come to be known as the “but for” test. As

articulated by Dean Prosser, the “but for” test states that

[t]he defendant’s conduct is a cause in fact of the event

if the event would not have occurred but for that

conduct; conversely, the defendant’s conduct is not a
-8-

cause of the event, if the event would have occurred

without it.

Keeton, supra, § 41, at 266. The supreme court picked up on the “but for”

terminology in 1950 and has used it ever since. Wood v. Newman, Hayes & Dixon

Ins. Agency, 905 S.W.2d 559, 562 (Tenn. 1995) (referring to the “but for” test as

classic language of causation in fact); Kilpatrick v. Bryant, 868 S.W.2d at 598;

Watson v. Borg-Warner Corp., 190 Tenn. 209, 215, 228 S.W.2d 1011, 1013

(1950). 

In most circumstances, the “but for” test effectively identifies conduct that

should be excluded as a cause in fact of an injury. Harper, supra, § 20.2, at 92;

Keeton, supra, § 41, at 266. However, it has proved to be less than satisfactory

in several circumstances, particularly when two independent causes concur to

produce an injury that either of them alone could have produced. Keeton, supra,

§ 41, at 266-67. In recent years, another test - the “substantial factor” test - has

taken its place beside the “but for” test to address these circumstances. The most

common formulation of this test appearing in the Restatement (Second) of Torts

states:

The actor’s negligent conduct is a legal cause of harm

to another if

(a) his conduct is a substantial factor in bringing

about the harm, and

(b) there is no rule of law relieving the actor from

liability because of the manner in which his negligence

has resulted in harm.

Restatement (Second) of Torts § 431 (1965). This court invoked the restatement’s

version of the “substantial factor” test as early as 1948. Waller v. Skeleton, 31

Tenn. App. 103, 115, 212 S.W.2d 690, 696 (1948). The supreme court followed

suit seventeen years later, Lancaster v. Montesi, 216 Tenn. at 57, 390 S.W.2d at

221, and has now incorporated it in its three-part test for determining proximate

or legal causation. McClenahan v. Cooley, 806 S.W.2d at 775.

The “substantial factor” test has not turned out to be the hoped for panacea

for all causation in fact problems. Over the years, it has taken on several distinct

and conflicting meanings. Harper, supra, § 20.6, at 180-82; Keeton, supra, § 41,

at 43-45 (Supp. 1988). While several jurisdictions have adopted the “substantial
6Restatement (Second) of Torts § 432(2) applies to circumstances where two independent

causes produced an injury that either of them alone could have produced.

-9-

factor” test as their sole test for determining causation in fact, see, e.g., Mitchell

v. Gonzales, 819 P.2d 872, 878-79 (Cal. 1991); Knodle v. Waikiki Grand Hotel,

742 P.2d 377, 386-87 (Haw. 1987); Busko v. DeFilippo, 294 A.2d 510, 512 (Conn.

1972), others have declined to jettison the “but for” test. See, e.g., Culver v.

Bennett, 588 A.2d 1094, 1098-99 (Del. 1991); Fussell v. St. Clair, 818 P.2d 295,

299 (Idaho 1991). 

Rather than supplanting the “but for” test, the “substantial factor” test in

Restatement (Second) of Torts 3431 actually retains the “but for” causation

principle as an essential part of the causation in fact analysis. King, supra, 90

Yale L.J. at 1356. Restatement (Second) of Torts § 432(1) (1965) explains that

Except as stated in Subsection (2),6 the actor’s

negligent conduct is not a substantial factor in bringing

about harm to another if the harm would have been

sustained even if the actor had not been negligent.

Thus, the “substantial factor” test, like the “but for” test, incorporates the concept

that conduct cannot be a cause in fact of an injury if the injury would still have

occurred even if the conduct had never taken place.

Both the “but for” test and the “substantial factor” test recognize that

conduct must be a “necessary antecedent” to an injury in order to be considered

a cause in fact of the injury. See Restatement (Second) 432, cmt. a. Choosing

between the two tests would not be outcome-determinative in this case, and thus

we perceive no practical benefit in joining the academic debate concerning the

relative merits and shortcomings of these two tests. The tests are compatible, and

in many cases, the “but for” test provides the trier of fact with appropriate

guidance for deciding causation in fact questions. Since the “substantial factor”

test is not always superior to the “but for” test, there is reason to require its use in

every case. We prefer to leave this matter to the trial courts who must select the

legal principles most applicable to the facts of each particular case.

IV.
7McClung v. Delta Square Ltd. Partnership, App. No. 02S01-9512-CV-00122, 1996 WL

617553, at *12-13 (Tenn. Oct. 28, 1996) (For Publication).

8Eaton v. McLain, 891 S.W.2d 587, 592 (Tenn. 1994).

9

L.K.I. Holdings, Inc. v. Tyner, 658 N.E.2d 111, 119-20 (Ind. Ct. App. 1995) (holding

that the comparison of fault inherent in the common-law doctrine of intervening cause has been

incorporated into the comparative fault system);see also Dodd v. Varady, 799 S.W.2d 216, 220

(Tenn. Ct. App. 1990) (stating that the doctrines of intervening negligence and last clear chance

(continued...)

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The intervening cause doctrine is a common-law liability shifting device.

It provides that a negligent actor will be relieved from liability when a new,

independent and unforseen cause intervenes to produce a result that could not

have been foreseen. Glenn v. Conner, 533 S.W.2d 297, 301-02 (Tenn. 1976);

Brown v. City of Kingsport, 711 S.W.2d 607, 609 (Tenn. Ct. App. 1986). The

doctrine only applies when (1) the intervening act was sufficient by itself to cause

the injury, Underwood v. Waterslides of Mid-America, Inc., 823 S.W.2d 171, 180

(Tenn. Ct. App. 1991), (2) the intervening act was not reasonably foreseeable by

the negligent actor, Evridge v. American Honda Motor Co., 685 S.W.2d 632, 635

(Tenn. 1985), and (3) the intervening act was not a normal response to the original

negligent actor’s conduct. McClenahan v. Cooley, 806 S.W.2d at 775; Solomon

v. Hall, 767 S.W.2d 158, 161 (Tenn. Ct. App. 1988). The customary explanation

of the doctrine is that an independent, intervening cause “breaks the chain of legal

causation between the original actor’s conduct and the eventual in jury. McClung

v. Delta Square Ltd. Partnership, ___ S.W.2d ___, ___ (Tenn. 1996);7 Haynes v.

Hamilton County, 883 S.W.2d 606, 612 (Tenn. 1994); Ford Motor Co. v.

Wagoner, 183 Tenn. 392, 401, 192 S.W.2d 840, 844 (1946).

The separation of causation in fact from legal causation and the adoption

of the comparative fault doctrine have obscured the role and significance of the

intervening cause doctrine. Intervening cause appears to relate more to legal

causation than to causation in fact because it does not come into play until after

causation in fact has been established. Doe v. Linder Constr. Co., 845 S.W.2d

173, 184 (Tenn. 1992); Keeton, supra, § 44, at 301. The doctrine also appears to

have survived the adoption of comparative fault even though other similar liability

shifting doctrines such as last clear chance, implied assumption of the risk, and

remote contributory negligence have been subsumed into comparative fault.

8

While other jurisdictions have concluded otherwise,9 the supreme court has stated
9

(...continued)

are no longer appropriate under admiralty’s proportional fault system). 

-11-

that proximate cause and intervening cause remain jury questions in the

comparative fault decision-making process. Haynes v. Hamilton County, 883

S.W.2d at 612.

Decision-making in a comparative fault proceeding will be more efficient

and reliable if causation-in-fact issues are resolved at an early stage. Thus,

causation-in-fact issues should be resolved before taking up legal cause issues or

allocating fault. By structuring the process in this manner, the trier of fact will

decide all causation-in-fact issues before determining whether a defendant who

might otherwise be liable should be relieved from liability because of the

independent and unforeseen conduct of another.

V.

We must decide first whether the evidence supports the trial court’s

conclusion that the manner in which South Central Bell erected and maintained

its lines and poles was a cause in fact of Ms. Owen’s injuries. If the answer to this

question is no, Waste Management, Inc. cannot recover from South Central Bell

under any theory of liability. Only if South Central Bell’s conduct was a cause in

fact of Ms. Owen’s injuries will we have to determine whether South Central Bell

should be excused from liability because an unknown driver severed the guy wire

on one of the telephone poles. 

Causation in fact is an all-or-nothing proposition. Keeton, supra, § 67, at

474. While there may be different degrees of liability or fault, specific conduct

is either a cause in fact, or it is not. Accordingly, plaintiffs have the burden of

introducing evidence that affords a reasonable basis for concluding that it is more

likely than not that the defendant’s conduct was a cause in fact of their injury.

Cook v. Spinnaker’s of Rivergate, Inc., 878 S.W.2d 934, 939 (Tenn. 1994). 

Waste Management, Inc. had the burden of proving that the manner in

which South Central Bell installed its lines and poles was a cause in fact of Ms.
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Owen’s injuries. It presented some proof that the lines were originally strung

several inches lower than the height required by the National Electric Safety Code.

However, the proof is undisputed that trucks similar to the one involved in this

incident had passed under these very lines without incident for sixteen years until

a vehicle driven by an unknown driver hit and severed the guy wire on one of the

poles. It is also undisputed that the lines fell to below thirteen feet three inches

only after the guy wire was severed.

Waste Management, Inc. has asserted throughout this case that the lines

would not have fallen below thirteen feet three inches had they been originally

installed at eighteen feet or higher as required by the National Electric Safety

Code. However, its expert engineer candidly conceded that he could not

determine the height of the lines before the guy wire was severed and, more

importantly, how far the lines fell when the guy wire was severed. He could not

state that the lines would not have fallen below thirteen feet three inches had they

been installed four to six inches higher in 1971, and the record contains no other

evidence supporting such a conclusion.

Waste Management, Inc. has not proved that its truck would not have

snagged the telephone lines had South Central Bell originally installed the lines

at a proper height. Even if the lines had been installed several inches higher, it is

more likely than not that Waste Management, Inc.’s truck would have snagged the

lines after the unknown driver severed the guy wire. Thus, even if Waste

Management, Inc. proved that South Central Bell installed its lines contrary to the

National Electrical Safety Code, it has not proved that the installation of the lines

was a cause in fact of Ms. Owen’s injuries. Without this proof, the trial court had

no factual basis to conclude that South Central Bell’s conduct was a cause in fact

of Ms. Owen’s injuries and, therefore, had no basis to allocate any fault to South

Central Bell. It follows, therefore, that Waste Management, Inc. is not entitled to

contribution from South Central Bell.

VI.
10This is the same as the trial court’s original judgment. We have not modified it because

South Central Bell has not appealed from the trial court’s conclusion that it was ten percent at

fault with regard to its property damage claim.

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For the reasons stated herein, we vacate Waste Management, Inc.’s

$27,114.47 judgment and remand the case to the trial court for the entry of a

judgment in favor of South Central Bell and against Waste Management, Inc. for

$485.5310 and for whatever other proceedings may be required. We tax the costs

of this appeal in equal proportions against South Central Bell Telephone Company

and its surety and Waste Management, Inc. for which execution, if necessary, may

issue.

____________________________

WILLIAM C. KOCH, JR., JUDGE

CONCUR:

________________________________

SAMUEL L. LEWIS, JUDGE 

________________________________

BEN H. CANTRELL, JUDGE