       IN THE COURT OF APPEALS OF TENNESSEE
            MIDDLE SECTION AT NASHVILLE


                                                 FILED
WASTE MANAGEMENT, INC.        )                  February 21, 1997
OF TENNESSEE,                 )
                              )                 Cecil W. Crowson
                                               Appellate Court Clerk
       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
                                OPINION

      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


                                        -2-
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.




        1
          The 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”).
        2
        The 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.”
        3
        The 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-
       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 Supreme Court 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.



       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-
      A judgment adjudicating all 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.




                                        -5-
      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,


                                        -6-
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


       5
        Bain v. Wells, App. No. 01S01-9603-CV-00049, 1997 WL 9056, at *8 (Tenn. Jan. 13,
1997) (For Publication).

                                          -7-
                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


                                            -8-
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.



       6
        Restatement (Second) of Torts § 432(2) applies to circumstances where two independent
causes produced an injury that either of them alone could have produced.

                                            -9-
       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


       7
       McClung v. Delta Square Ltd. Partnership, App. No. 02S01-9512-CV-00122, 1996 WL
617553, at *12-13 (Tenn. Oct. 28, 1996) (For Publication).
       8
           Eaton 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...)

                                             -10-
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.


       9
         (...continued)
are no longer appropriate under admiralty’s proportional fault system).

                                            -11-
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.




                                        -12-
         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




         10
         This 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.

                                             -13-
