text:
    Leon MORRIS et al. v. MERCHANTS NATIONAL BANK OF MOBILE, etc., et al.
    SC 2824.
    Supreme Court of Alabama.
    May 26, 1978.
    W. Kenneth Gibson of Taylor, Benton & Irby, Fairhope, for appellants.
    Norborne C. Stone, Jr., Charles C. Partin, III of Stone & Partin, Bay Minette, John-stone, Adams, May, Howard & Hill, Mobile, for appellees.
   BEATTY, Justice.

This is an appeal by the Morrises from a summary judgment rendered against them and from an order denying their post-trial motion to set aside that summary judgment.

The present action is an outgrowth of earlier litigation, commenced in 1946, in which the Fullers sought injunctive relief against the Morrises. An injunction was issued on March 20, 1946. On October 29, 1966, more than twenty years later, this injunction was dissolved. Thereafter the Morrises brought this present action to recover damages, alleging a wrongful interruption of their business and trespass to their property, all arising out of the wrongful procurement and issuance of the injunction in the earlier action.

In view of the reasons on which we have based our decision to dismiss the appeal, it will be relevant to set out the course of the pleadings which were filed in the instant case.

The summons and complaint were filed on July 18, 1967. That complaint was demurred to on August 17, 1967. Then the plaintiffs filed an amended complaint on November 22, 1968. This was followed on March 23, 1971 by the filing of a motion to strike one of the defendants, and later, on July 12, 1974, by the filing of a motion to dismiss by the defendants. On December 15,1975 the defendants moved for summary judgment, supporting their motion with extensive documentary and other evidence. Then, on April 12,1976 the plaintiffs filed a second amended complaint, to which the defendants filed a motion to dismiss on May 13,1976. This was followed by the filing by the defendants on December 28, 1976 of another motion for summary judgment. The plaintiffs then filed on January 4, 1977 their answer to the defendants second motion for summary judgment. In granting the defendants’ motion for summary judgment on May 12, 1977, the trial court’s order included the following findings:

The Complaint filed by the Plaintiffs against the Defendants in this case seeks to recover substantial damages from the Defendants for maliciously and without probable cause obtaining an injunction enjoining the Plaintiffs from operating a sawmill on Division ‘A’ Fractional Section 25, Township 4 South, Range 1 East in Baldwin County, Alabama (herein for convenience called Division A). The Bill for Injunction filed by the Defendants against the Plaintiffs in March of 1946, made no reference whatever to Division A and the Writ of Injunction issued on March 20, 1946, by the Circuit Court of Baldwin County, In Equity, referred only to the lands described in the Bill of Complaint which did not include Division A. An ejectment suit filed by the Defendants on or about June 22, 1946 against the Plaintiffs made no reference to Division A and the Plaintiffs disclaimed, in such ejectment suit, any interest whatever in the lands described in the Complaint except Division A and four acres in the Northwest corner of Section 38, as to which two parcels the Plaintiffs pleaded general issue. And the Court having considered the Motion for Summary Judgment and the exhibits attached thereto, together with the Plaintiffs’ response thereto, the Court concludes that there is no genuine issue as to any material fact and that the Defendants are entitled to a judgment as a matter of law; .

After the trial court had granted the defendants’ motion for summary judgment, the plaintiffs filed on May 27, 1977 an amended complaint, the preamble to which recited:

The Plaintiffs now amend their Complaint and all its amendments by adding the following to each count or cause of action: .

The defendants followed this by filing on June 9,1977 a motion to strike the amended complaint, and alleged two grounds: (1) that it was a nullity because the court had theretofore granted summary judgment; and (2) that it was filed without leave of court contrary to the requirements contained in Rule 15, ARCP.

The plaintiffs on June 10, 1977 filed their “MOTION TO SET ASIDE ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT,” and asserted as their grounds: “That they want to amend their Complaint and equity requires that this should be done.”

On August 9, 1977 the trial court entered the following order (filed on August 16, 1977):

This cause coming on to be heard on Motion of the Plaintiffs to set aside a Summary Judgment entered by this Court after careful consideration on May 12, 1977, in order that the Plaintiffs might again be allowed to amend their complaint and the same being considered by the Court the Court finds that the original complaint in this cause was filed on to wit: July 18, 1967, and thereafter amended by the Plaintiffs on two different occasions, on November 22, 1968, and again on April 12, 1976. After said last amendment a voluminous Motion for Summary Judgment with Exhibits was filed by the Defendants on November 28, 1976, with said Motion being taken under advisement by this Court on January 4, 1977, after Plaintiffs had filed their answer to said Motion for Summary Judgment on said date. Summary Judgment for the Defendants was entered by the Court on to wit: May 12, 1977, after several months of deliberation and study on grounds as set forth in said Summary Judgment.
Under the circumstances as herein-above outlined it is the opinion of this Court that the Plaintiffs have failed to exercise due diligence in seeking to amend their complaint and the suggestion being made to this Court on this date that one of the Defendants, George Fuller, Sr., died subsequent to the granting of the said Summary Judgment and before the filing of the last proposed amendment by the Plaintiffs, it is this Court’s opinion after careful consideration that to allow such a belated third amendment to the complaint as originally filed would be unduly prejudicial to the Defendants in this cause. Despite the liberal rules with reference to the allowance of amendments, it is this Court’s opinion that a Plaintiff should be able to decide and present to the courts of this State the legal issues in any cause within a period of eleven years if a final disposition of any cause is to be attained by the judiciary of this State

Then on September 15, 1977 the plaintiffs filed a “MOTION FOR EVIDENTIARY HEARING OR IN THE ALTERNATIVE LEAVE OF COURT TO FILE AFFIDAVITS IN SUPPORT OF MOTION FOR RECONSIDERATION.” As a ground for this motion the plaintiffs stated:

1.Justice requires that Plaintiffs be allowed an evidentiary hearing to develop the factual context behind the pleadings heretofore filed in said cause in order to show the Defendants would not be unduly prejudiced by filing of an additional amendment to the complaint in this matter.

That same day the plaintiffs filed their “MOTION FOR RECONSIDERATION” of (1) the order granting defendants’ motion for summary judgment and (2) the order denying plaintiffs’ motion to set aside so that another amended complaint could be filed. The grounds in support of this final motion were:

1. That Plaintiffs’ Answer to the Motion for Summary Judgment reflected a factual dispute that could not be resolved by summary judgment.
2. The amended complaint of Plaintiffs reiterated a factual dispute that could not be resolved by summary judgment.
3. Reasonable grounds exist for the delay in this cause.
4. The amendment to the complaint which was filed May 27, 1977, did not unduly prejudice Defendants.
5. To rule otherwise would be contrary to law and equity.

This motion was denied on September 20, 1977. Notice of appeal was filed on September 22, 1977.

The principal issue raised by this sequence of pleading is whether the plaintiffs’ appeal was perfected within forty-two days of an appealable judgment in accord with Rule 4(a), ARAP. In a motion to dismiss the appeal, the defendants contend that the motions filed by the plaintiffs following the summary judgment did not suspend the running of the time for filing notice of appeal. On the other hand, the plaintiffs contend that their Motion to Set Aside Order Granting Defendants’ Motion for Summary Judgment was a proper Rule 59(e) motion, and that their notice of appeal, filed on September 22, 1977, was filed within forty-two days of the trial court’s order denying that motion (September 20, 1977).

Of course, the plaintiffs are correct in their contention that a proper motion for reconsideration filed under the authority of Rule 59(e) will extend the time for filing notice of appeal, even though the motion for reconsideration follows the grant of a summary judgment. Papastefan v. B. & L. Construction Co., Inc., Ala., 356 So.2d 158 (1978). Their argument, however, misconceives the applicability of that principle to these pleadings. Examination of the post-trial pleadings reveals that in manner and form their purpose was either to file another amended complaint or to obtain the trial court’s consent to file another amended complaint. They were not designed to have the trial court reconsider the evidence on which the summary judgment was based.

Although not directly in point, Clardy v. Duke University, 299 F.2d 368 (4th Cir. 1962) discloses the reason why a motion to amend which follows summary judgment should not be treated as a motion for reconsideration which would extend the time for appeal. Following summary judgment rendered against him in that case a party moved for reconsideration, asking the trial court for leave to file an amended complaint. The trial court’s denial of the motion was upheld on appeal, citing Rule 15(a), FRCP, cf. Rule 5(a), ARCP. At pages 369-370 of the report this significant language appears:

If it should be held that plaintiff could amend without leave after a hearing and the granting of [a] summary judgment against him, the effect would be to clothe a litigant with the power, at any time, to reopen a case and possibly to set aside a judgment rendered against him by the court. Rule 15(a) is not to be construed so as to render Rule 12 meaningless and ineffective. .

See also Freeman v. Continental Gin Co., 381 F.2d 459, 469-470 (5th Cir. 1967).

Because the post-trial motions of plaintiffs did not have the effect of extending the time for filing notice of appeal, that time began to run from the date of the summary judgment, or May 12, 1977. Forty-two days from that date would have been June 23, 1977. Thus the plaintiffs’ notice of appeal filed on September 22,1977 was too late. Timely filing of the notice of appeal is jurisdictional. Rule 3, ARAP.

The appeal must be dismissed.

APPEAL DISMISSED.

MADDOX, JONES, ALMON and SHORES, JJ., concur.


source: Caselaw Access Project

author: SHORES, Justice.

license: Public Domain

text:
    Avery HILL et al. v. TOWN OF DOUGLAS, etc.
    77-134.
    Supreme Court of Alabama.
    May 26, 1978.

      James D. Walker, Albertville, for appellants.
    Robert W. Hanson, Albertville, for appel-lee.
   SHORES, Justice.

The community of Douglas is located in Marshall County. A group of citizens (hereinafter incorporators) filed a petition in the probate court on June 30, 1977, seeking to incorporate the Town of Douglas pursuant to Title 37, § 10, Code 1940, Recompiled 1958 (now § 11-41-1, Code 1975). The probate court entered an order holding the petition valid and set an election to be held on July 27, 1977, in which all voters residing within the proposed municipal boundaries would vote on the proposal. Several people (hereinafter contestants) filed a petition on July 18, 1977, alleging defects in the petition for incorporation.

The probate court held a hearing on July 22, 1977, and, after hearing testimony, set aside its original order setting a date for the election. On August 19,1977, the incor-porators filed a motion for rehearing. The court granted the motion and set the matter down for hearing on September 16, 1977. The contestants filed a motion to set aside the rehearing order. The court denied this motion and held the hearing on September 16, 1977. At this second hearing, the incorporators presented evidence to show that an error existed in the tax assessor’s records and that the petition did, in fact, contain the signatures of those residents of the community owning 60% of the land lying with the proposed municipal boundaries. Contestants argued several other defects existed in the petition and that these additional defects rendered the petition invalid. At the conclusion of this second full hearing, the judge upheld the petition and set a new election to be held on October 11, 1977. Contestants filed a motion for new trial, which the court denied and the election was held. Incorporation passed by a margin of 82 to 19. The contestants appealed. They contend:

That the petition for incorporation was defective because it did not contain the signatures of at least four qualified electors residing on each quarter of a quarter-section within the proposed boundary as required by Title 37, § 10, Code. They argue that a Mrs. Armesia Johnson, one of those who signed the petition, did not reside within the quarter of the quarter-section which she represented.

Testimony offered at both hearings was to the effect that Mrs. Johnson’s home was situated on the line dividing the two quarters. Contestants contend that, for this reason, she was not qualified to sign the petition as a representative of her quarter of the quarter-section. They offer no evidence that her home is not situated on the line dividing the two quarter-sections.

In Woodall v. City of Gadsden, 278 Ala. 634, 179 So.2d 759 (1965), this court held that, where an elector’s residence was partly within and partly without an area proposed to be annexed to a city, the elector was entitled to vote in the annexation election under Title 17, § 18, Code 1940, Recompiled 1958 (now § 17-3-7, Code 1975), which gives one the right to elect which area he prefers to be in. The court held:

“. . . This statute was enacted to abrogate the artificial and technical rules existing under case law under these circumstances. We think it is clear that she made her election by voting in this election. We are not persuaded that this legislature intended to provide a remedy only when the home of the person was situated on a county or precinct line, but rather we think it was intended to apply in any case where a political line is so drawn that the residence is situated partly on one side and partly on another.” (Emphasis Added) (278 Ala. at 637, 179 So.2d at 761)

Mrs. Johnson made her choice when she signed the petition. Under Woodall, she was qualified as a representative of her quarter section.

The contestants argue- next that the probate court exceeded its authority in ordering an election to be held more than 30 days from the date the original petition to incorporate was filed. Title 37, § 11 (now § 11-41-2, Code 1975), provides that “. . . the judge of probate must direct an election to be held within thirty days after the filing of the petition.” In the instant case, the election was originally ordered for July 26, 1977, within thirty days of the filing of the first petition; but, because the judge agreed with the contestants that the petition was defective, that order was set aside. Obviously, where the validity of the petition is questioned, the probate court must first determine its sufficiency because it has no authority to order an election in the absence of a valid petition. Meeks v. Town of Hoover, 286 Ala. 373, 240 So.2d 125 (1970). After the court held a hearing and determined that the petition was valid, it then ordered an election to be held within 30 days thereafter. The court determined, after hearing, that the petition was valid on September 16,1977. The election was ordered to be held on October 11, 1977. This complies with the statute.

Although they concede that they had actual notice of the rehearing set on the order setting aside the date fixed for the election (and, in fact, appeared and offered testimony in opposition to the motion), the contestants argue that under Dulin v. Johnson, 216 Ala. 393, 113 So. 397 (1927), and Title 7, § 280, Code 1940, Recompiled 1958, they were entitled to notice that a motion for rehearing would be sought at least ten days prior to the application for rehearing.

We are not persuaded by this argument. Although the motion of the incorporators was delineated “a motion for rehearing,’’ it was tantamount to a refiling of the petition for incorporation. The petition had been found defective and the judge had set aside the order ordering an election thereon. The rehearing motion was to show by the evidence that the defects were cured and the petition was in fact valid. It was, therefore, properly treated as a refiling of a petition to incorporate.

The only notice required under Title 37, § 11, Code, supra, is notice of the date of the election set after a valid petition to incorporate has been filed. The contestants were given ample opportunity to argue their case at the second hearing and did so.

The contestants finally argue that the proposed boundaries of the town were drawn by the incorporators, not only to obtain the signatures required by Title 37, § 10 — but also to exclude persons opposed to incorporation. They argue that the boundaries were drawn in a capricious and arbitrary manner. The record does not support this argument. They contend that this court’s decision in City of Birmingham v. Community Fire District, Ala., 336 So.2d 502 (1976), forbids the exclusion of persons opposed to incorporation.

The City of Birmingham ease dealt with an annexation statute. This case is controlled by the statutes dealing with the creation of municipalities. The two involve totally different statutes and different considerations. Compare Title 37, § 10, et seq., Code 1940, Recompiled 1958 (now § 11-41-1, et seq., Code 1975), with Title 37, § 134, et seq., Code 1940, Recompiled 1958 (now § 11-42-1, et seq., Code 1975).

In any event, City of Birmingham involved a special factual setting and was decided by a divided court. It should be limited to that factual context and similar factual settings. City of Birmingham is not this case. The statute requires the incorpo-rators to obtain signatures of residents representing the area to be incorporated. This requirement cannot be met unless there is an interest in incorporation in those areas. The incorporators made efforts to develop interest for incorporation in the community. It is reasonable to include within the proposed municipal boundaries only those areas in which the residents favored incorporation and to exclude those areas where the residents were not in favor of incorporation. Areas opposed to being included within the proposed municipality were excluded.

The gist of the contestants’ argument is that the excluded areas should have been included in the area proposed for incorporation, so that persons residing in those areas could have voted to oppose the incorporation and might thereby have been successful. But this hypothesis furnishes no legal basis for invalidating an otherwise legally conducted election which resulted in incorporation of a municipality.

AFFIRMED.

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


author: BEATTY, Justice.

text:
    A. J. COOPER v. Eva C. GREEN, etc., et al.
    77-254.
    Supreme Court of Alabama.
    May 26, 1978.

      Richard D. Horne, Mobile, for appellant.
    Ralph Kennamer, Otto E. Simon, Mobile, for appellees.
   BEATTY, Justice.

Appeal by the mayor of the City of Prichard from a declaratory judgment which determined that the clerk-treasurer of that city was not holding office in violation of Tit. 37, § 405, Alabama Code (Recomp. 1958) (now Code of Ala. 1975, § 11-43-3). We reverse and remand.

Mrs. Eva C. Green, the clerk-treasurer of Prichard, was appointed to that position by the city council in 1974 and reappointed in 1976. She is a resident of Mobile. For reasons which require no recitation here the mayor brought a declaratory judgment action in the Circuit Court of Mobile County to determine whether Mrs. Green was legally holding office in view of the provisions of § 405, the pertinent part of which states:

In cities having a population of more than 6,000, there shall be elected by the council, at its first regular meeting or as soon thereafter as practicable, a city treasurer and a city clerk, who shall be residents of such cities and who shall hold office until the next general election and until their successors are elected and qualified . . . . (emphasis added)

The trial court found that the residency requirement contained in § 405 was “specifically repealed” by General Acts of Alabama Numbers 1809 and 2105, Reg.Sess. 1971, and, consequently, that Mrs. Green was not required to be a resident of the City of Prichard in order to hold that city’s office of clerk-treasurer:

Section 1 of Act No. 1809 provides that:

Residency within cities or municipalities having populations of not less than 40,000 nor more than 45,000 shall not be a prerequisite or requirement for employment by such cities or municipalities.

Section 2 is the pertinent portion of Act No. 2105:

The governing body of any municipality subject to the provisions of this Act may not terminate the employment of any of its personnel for not being residents of said municipality, when the place of residence of such employee is owned by the employee, and has been located within said municipality until such time as the boundaries of said municipality were altered, rearranged or changed so as to exclude said residence from within the corporate boundaries of said municipality.

The appellant’s principal contention is:

That because § 405 applies to cities having populations in excess of 6,000, Prichard being one of these, Mrs. Green should have been ruled ineligible for the office. Appellant maintains that Act 1809 was a local Act whose effect was to amend the city’s charter, in violation of § 104(18), Alabama Constitution of 1901. This follows, he contends, because § 405, a general law, was a part of the city charter, citing State v. Cole, 269 Ala. 39, 110 So.2d 273 (1959).

On the other hand, the appellees maintain that the two Acts mentioned above specifically repealed the residency requirements of § 405 as it relates to the City of Prichard, and furthermore, that the issue of the constitutionality of Act 1809 was raised for the first time on appeal and thus it cannot be considered by this Court.

A review of the pleadings and of the trial court’s order compels the conclusion that the issue of constitutionality was not raised in the lower court by either party. It is well settled that this Court will not consider constitutional questions which were not raised in the court below. Smith v. State, 280 Ala. 241, 192 So.2d 443 (1966). Thus we cannot consider the appellant’s argument on that point. This leaves for our review only the question of the trial court’s interpretations of Acts 1809 and 2105 and their application to this controversy.

We dispense with Act No. 2105 initially because there is nothing in the record to disclose its applicability here. In other words, assuming arguendo that Act No. 2105 modified § 405 (which we do not decide), nothing was established to show that the employee owned the place of residence or that the place of residence was within the City of Prichard until its boundaries excluded it. By the terms of that Act, either of those two conditions must have occurred before the prohibition on termination of employment for non-residency under that Act became effective.

Neither side makes an issue of the application of the population “brackets” contained in Act No. 1809 to the City of Prichard. The only issue remaining on the merits is whether Act No. 1809, stating that residency shall not be a prerequisite for employment, amended § 405 which does make residency a requirement for election of a city treasurer and a city clerk.

We do not interpret Act No. 1809 to make any such modification of § 405. The latter section deals specifically with the election by the council of certain officers, a clerk and a treasurer. While the word “employment” is loosely defined as “the act of being employed,” Webster’s Third International Dictionary, G. & C. Merriam Co., 1971, it also has as a narrower meaning “work in which one’s labor or services are paid for by an employer.” Webster’s, supra. Section 405 refers to particular offices of an executive nature, while Act No. 1809 refers only to employment. When used in the context of a public office, it has been held that:

“We apprehend that the term ‘office’ implies a delegation of a portion of the sovereign power, and the possession of it by the person filling the office; and the exercise of such power, within legal limits, constitutes the correct discharge of the duties of such office. The power thus delegated and possessed may be a portion belonging sometimes to one of the three great departments, and sometimes to another; still, it is a legal power, which may be rightfully exercised, and, in its effects, will bind the rights of others, and be subject to revision and correction only according to the standing laws of the state. An employment, merely, has none of these distinguishing features.” State v. Stone, 240 Ala. 677, 680, 200 So. 756, 758 (1941) quoting from Montgomery v. State ex rel. Enslen, 107 Ala. 372, 381, 18 So. 157, 159.

It is consistent with this distinction to conclude that by enacting Act No. 1809, the legislature intended it to apply to persons employed by the applicable cities who were not officers charged with executive functions. Indeed, these officers specified in § 405 are within the executive level of those who direct the services and labor of “employees.” Had the legislature desired the word “employment” as it is used in Act No. 1809 to encompass treasurers, clerks and other corporate officers, it would have been an easy matter to have manifested that intent in the face of other statutes which contain express references to specific positions. Cf., e. g., Tit. 37, § 403, Alabama Code (Recomp. 1958) (now Code of Ala. 1975, § 11-43-1). Accordingly, we hold that Act No. 1809 did not amend Tit. 37, § 405, and that the trial court erred when it arrived at a contrary position. Having reached this decision, it is unnecessary to comment upon the other issues raised by the parties to this appeal.

The judgment must be reversed and remanded, and it is so ordered.

REVERSED AND REMANDED.

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


author: PER CURIAM.

text:
    H. T. L., INC. v. ALABAMA PUBLIC SERVICE COMMISSION, Juanita W. McDaniel, as President, Jim Zeigler, and C. C. Whatley, as Associate Commissioners, Ross Neely Express, Inc., Hiller Truck Lines, Inc., and Victory Freight Lines, Inc.
    77-323.
    Supreme Court of Alabama.
    May 26, 1978.
    J. Douglas Harris, Montgomery, for appellant.
    William K. Martin, Montgomery, for Ross Neely Express, Inc., Hiller Truck Lines, Inc. and Victory Freight Lines, Inc., appellees.
    Stanley W. Foy, Alabama Public Service Commission, Montgomery, and Ann Downing, Asst. Atty. Gen., for Alabama Public Service Commission, Juanita W. McDaniel, Jim Zeigler, and C. C. Whatley, appellees.
   PER CURIAM.

Affirmed on the authority of Osborne Truck Lines, Inc. v. Alabama Public Service Commission, 284 Ala. 166, 223 So.2d 284 (1969).

AFFIRMED.

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


author: WRIGHT, Presiding Judge.

text:
    NATIONWIDE MUTUAL INSURANCE COMPANY v. UNITED SERVICES AUTOMOBILE ASSOCIATION.
    Civ. 1240.
    Court of Civil Appeals of Alabama.
    Dec. 14, 1977.
    Rehearing Denied Jan. 11, 1978.
    Edgar M. Elliott and Charles F. Carr, of Rives, Peterson, Pettus, Conway, Elliott & Small, Birmingham, for appellant.
    Allwin E. Horn, III, of Spain, Gillon, Riley, Tate & Etheredge, Birmingham, for appellee.
   WRIGHT, Presiding Judge.

This is an appeal from a declaratory judgment. We reverse.

This is another uninsured motorist stacking case. It arose from the following:

An employee of a corporation was injured in an accident with an uninsured motorist. He was driving an automobile leased by the employer and furnished to him by the employer for his use while on company business and for his personal use. The employer owned or leased three other automobiles which were used in the same manner by other employees or officers of the corporation. The employer had separate policies of insurance on each automobile with Nationwide Mutual Insurance Company which included uninsured motorist coverage. The employee had a policy with United Services Automobile Association (USAA) which also included uninsured motorist coverage.

In his personal policy, the employee was the named insured. In the employer’s policy, the liability coverage is as follows:

“Those entitled to protection under these coverages C(l) and C(2) are (a) the policy holder; (b) any resident of the same household; and (c) any person or organization legally responsible for the use of the described automobile, provided the actual operation ... is with the permission, expressed or implied, of the policy holder . . and is within the scope of such permission.”

It is stipulated that the employee was an express permission user and was within the scope of his permission at the time of his injury.

The employee was paid a total of $17,500 by the two insurers. Nationwide paid $10,-000 and USAA paid $7,500. Each agreed that such payments were subject to the result of declaratory litigation between them as to whether or not the uninsured motorist coverage of the Nationwide policies could be “stacked.” The trial court found that stacking was permitted of the Nationwide policies and that USAA was not due to contribute under the facts of the case. In reaching its decision the trial court found that the employee was an insured under each of the Nationwide policies. We believe the case law of this state as heretofore written by the Supreme Court in uninsured motorist cases to be to the contrary.

A lengthy re-statement by this court of the principles of stacking policies of uninsured motorist insurance eschewed by the Supreme Court of Alabama in recent years can serve no useful purpose. Each of the last two cases decided on the question by that court has already substantially done that. Those cases are Lambert v. Liberty Nat’l Mut. Ins. Co., 331 So.2d 260 (Ala.1976) and Billups v. Alabama Farm Bureau Mut. Cas. Ins. Co., Ala., 352 So.2d 1097 (1977).

Though there is a slight distinction between the facts of Lambert and Billups and those of this case, it is a distinction without real difference.

In those cases the injured were occupants or passengers and were not drivers as in this case. USAA contends that difference is a critical factor, because a permissive driver of an insured vehicle is a “person insured” under the liability provisions of an insurance policy, an omnibus insured, and is required to be protected by uninsured motorist coverage under the statute, Title 36, § 74 (62a), Code of Alabama (1940) (Recomp.1958). It cites the cases of State Farm Auto. Ins. Co. v. Reaves, 292 Ala. 218, 292 So.2d 95 (1974); General Mut. Ins. Co. v. Gilmore, 294 Ala. 546, 319 So.2d 675 (1975), and Lambert v. Liberty Mut. Ins. Co., supra, as authority for its contention.

State Farm Auto Ins. Co. v. Reaves, supra, does stand for the proposition that if one is a person insured under the liability coverage of a policy, he cannot be excluded from protection of the uninsured motorist provision of that policy by an exclusion in the uninsured motorist provision. Such attempted exclusion is void because of the uninsured motorist statute. The case does not relate to “stacking” of policies. The case of General Mut. Ins. Co. v. Gilmore, supra, though containing some interesting dicta, stands only for the proposition that one who is an “insured” under the terms of the liability coverage cannot be denied the full benefit of the uninsured motorist coverage. It was stipulated that the driver was “an insured” under the liability coverage of one policy which insured seven listed vehicles and for which seven separate premiums had been paid. Gilmore is not a valid precedent for a decision in this case and it has been ignored by the court in the subsequent decisions on “stacking.”

We agree that Lambert applies in this case, not in aid of USAA’s contention but to the contrary. Lambert held that there are two classes of insured under the usual liability policy: (1) the named insured, his relatives (who reside in his household), and (2) any permissive user or occupant while occupying the insured vehicle. The first class, the named insured, with members of his household pays a separate premium for every policy or for every vehicle included in a policy. He should get what he pays a premium for and is entitled to stack all uninsured motorist benefits to the extent of policy limits or injury. The second class is covered only when occupying the insured vehicle, pays no premium and is entitled only to the single coverage provided for the vehicle he is using or occupying.

We have previously stated that the claimant for stacking in Lambert was an occupant of the insured vehicle. He was not an insured under the liability coverage, but was an omnibus insured under the uninsured motorist coverage. The policy was a fleet policy purchased by Seaboard Railroad and included nearly 1700 vehicles. There is language in Lambert, based upon a stated agreement with holdings from other jurisdictions (Cunningham v. Insurance Co. of North America, 213 Va. 72, 189 S.E.2d 832 (1972); Long v. United States Fidelity & Guar. Co., 396 F.Supp. 966 (N.D.Ala.1975)), which appears to apply to the facts of this case. On the other hand, at the conclusion of the opinion, there appears language seemingly limiting the decision to the facts of that case. The case was heard by the full court. There were two special concurrences by justices with the opinion in Lambert which indicate that if Lambert had been an insured under the liability provisions of the policy rather than merely an omnibus insured under the uninsured motorist provision, they would not have agreed to a denial of stacking. Two other justices concurred in the result.

Billups v. Alabama Farm Bureau Mut. Cas. Ins. Co., supra, was heard by only one division of the court, but it discusses the opinion in Lambert as follows: “In Lambert we quoted with approval and adopted the reasoning of two other jurisdictions in the cases of Sturdy v. Allied Mut. Ins. Co., 203 Kan. 783, 457 P.2d 34 (1969) and Cunningham v. Ins. Co. of North America, 213 Va. 72, 189 S.E.2d 832 (1972), distinguishing between two classes of persons for the purpose of stacking insurance coverage. An insured of the first class, consisting of the named insured and any relative, is entitled to stack coverages. An insured of the second class, consisting of permissive users of the vehicle and any occupants, is not so entitled. This classification is consistent with reasonable expectations of the parties to the contract, the named insured and the insurance company. In Lambert, we expressly declined to extend to permissive users of automobiles the privilege of stacking multi-vehicle coverage under policies not owned by them. We adhere to that decision and find that it controls in this instance.” (Emphasis ours.) Billups v. Alabama Farm Bureau Mut. Cas. Ins. Co., supra, at 1104.

As the issue in Lambert did not include permissive users of automobiles, but related to an occupant of the insured automobile covered only under the uninsured motorist provisions of the policy, we must respectfully question the verity of the above statement in Billups.

It is clear that Lambert does not support the position of USAA in this case. If the interpretation by Billups is accepted, Lambert is contrary to the contention of USAA. The decision in Billups is decidedly contrary to and conclusive of the contention of USAA and the judgment below.

Though Billups was not a full court decision, we consider that we are bound by it. We consider it to be dispositive of the issue of stacking by the employee insured as a permissive user under the liability coverage in this case.

We must comment however, that there is building up in our appellate decisions in this state language concerning “stacking” most difficult to reconcile. It appears to have become necessary to recapitulate the decisions, explain and distinguish them when a slightly different factual situation arises. If the rule for stacking is to be as declared in Billups, it would be desirable that an en banc decision be shortly forthcoming.

REVERSED AND REMANDED.

BRADLEY and HOLMES, JJ., concur.


text:
    Ex parte UNITED SERVICES AUTOMOBILE ASSOCIATION.
    77-278.
    Supreme Court of Alabama.
    June 9, 1978.
   PER CURIAM.

WRIT QUASHED AS IMPROVIDENTLY GRANTED.

All the Justices concur, except BEATTY, J., who dissents.


author: HOLMES, Judge. HOLMES, Judge.

text:
    Mary BELCHER et al. v. VULCAN MATERIALS COMPANY, a corporation.
    Civ. 1280.
    Court of Civil Appeals of Alabama.
    Feb. 8, 1978.
    Rehearing Denied March 8, 1978.

      Betty C. Love, Love, Love, Lawrence & Burton, Talladega, for appellants.
    Robert B. Huie, Huie, Fernambucq, Stewart & Smith, Birmingham, for appellee.
   HOLMES, Judge.

This is a workmen’s compensation case.

The dispositive issue on appeal is whether, in this instance, the remarriage of the widow and the nondependency of the children relieved the employer from further payments of workmen’s compensation benefits. We find that the employer is not liable for further payments and affirm.

The record reveals the following: The employee’s widow brought suit against the employer under Alabama’s workmen’s compensation law, Chapter 5, Title 26, Code of Alabama 1940, on behalf of herself and minor children. The widow of the employee prevailed in her lawsuit in the trial court. The case was appealed to this court and affirmed. See Vulcan Materials Co. v. Belcher, 49 Ala.App. 61, 268 So.2d 843 (1972).

Specifically, the trial court’s decree awarding benefits provided in pertinent part as follows:

“IT IS, THEREFORE, ORDERED ADJUDGED AND DECREED by the Court that the plaintiff have and receive of the defendant the sum of $19,200.00, consisting of $18,800.00 Workmen’s Compensation benefits and $400.00 burial benefits as provided by the Workmen’s Compensation Laws of the State of Alabama for and on account of the death of the subject-deceased. IT IS FURTHER ORDERED, ADJUDGED AND DECREED by the Court that the sum of $5,875.00 of said total amount is due as of February 23, 1972, and said amount compensates the plaintiff for all compensation due by the defendant to her and said children to February 23, 1972. In addition thereto the sum of $400.00 is now due as the burial benefit provided by law. The total amount due as of February 23, 1972, which is a part of the total amount of the judgment, is $6,275.00, and IT IS HEREBY ORDERED that said sum be immediately paid. IT IS FURTHER ORDERED, ADJUDGED AND DECREED by the Court that the balance of said judgment is not now due but the same will become due in payments in the sum of $47.00 each week following February 23, 1972 on Wednesday. IT IS FURTHER ORDERED by the Court that the defendant pay to the plaintiff the sum of $47.00 on or before each Wednesday immediately following February 23, 1972 until the total amount of this judgment and the costs of this proceeding are paid in full; against said judgment the defendant will be allowed credit for the payment of all accumulated amounts provided herein and all other cash payments on said judgment which may be made from time to time by the defendant. Upon the faithful satisfaction of said judgment as provided herein IT IS HEREBY ORDERED that the defendant be released from all further liability related to the subject of the proceeding. Execution may issue for any amount due or to become due under the terms of this judgment.” [Emphasis supplied.]

Thereafter, the employer paid the sums due under the above mentioned decree. In October of 1976, the employer ceased making the $47 per week payments as there were no dependent children and the widow had remarried. At this time, less than $1,000 remained to be paid.

The remarried widow then filed a garnishment proceeding against the employer and the employer responded with a motion for relief of judgment. The employer’s motion was granted with the learned and distinguished trial judge finding in pertinent part as follows:

“Title 26, Section 284 of The Code of Alabama Recompiled 1958 provides that in case of remarriage of the widow the unpaid balance of compensation which would otherwise become due her shall be paid to the children, or to some other suitable person approved by the court for the use and benefit of the children. It is the intent of the Workman’s Compensation Act to protect the widows and dependent children of deceased employees. No action was taken under this Code section in this case. At this time with the widowhood of the plaintiff and the dependence of the children having been extinguished the court is of the opinion that the intent of the Workman’s Compensation Act has been accomplished. Perhaps there should have been another provision added to the judgment in this case providing for its satisfaction in the event all payments are faithfully made during the widowhood of the plaintiff and the dependency of the children. No doubt the court would have modified the judgment by inserting such provision had it been requested. At this stage the court is of the opinion that the judgment has been satisfied or discharged, and it is no longer equitable that the judgment should have prospective application, and there is good reason justifying relief from the operation of the judgment. The same is HEREBY ORDERED.
“All funds which may be now encumbered by the garnishment proceedings in this case are hereby released, the garnishee is hereby discharged, and the judgment is satisfied. Costs are taxed against the plaintiff.”

It is from this action by the trial court that the appellant appeals.

It is clear to this court that the trial court, in construing the pertinent provisions of Alabama’s workmen’s compensation law, to wit, Title 26, §§ 283 and 284, found there were no longer any dependents as defined therein.

The appellant, through able counsel, does not contend there are in fact dependents, but argues in excellent brief that the judgment rendered was conclusive as to the total amount due and therefore the trial court was without authority for its action in altering the amount of the judgment. Appellant’s contention is in large measure based on Title 26, §§ 300 and 304. We do not agree.

There is no dispute that Alabama’s workmen’s compensation law, in effect at the time of this lawsuit, mandated that the unpaid balance of compensation due, i.e., installment payments, to a widow ceased to be due the widow upon remarriage. It is equally clear that dependents, under circumstances such as we have here, when reaching the age of 18 years ceased to be entitled to benefits.

The only way the appellants, in this instance, could be due the remaining payments would be if the remaining payments were considered vested in the appellants. The trial court found otherwise, stating his reason as set out hereinabove. We cannot say, as a matter of law-, that the wording of the prior judgment awarding compensation requires a finding that the total benefits were in fact vested.

As pointed out by able counsel for appellee-employer, the Supreme Court of Alabama case of U. S. Steel v. Baker, 266 Ala. 538, 97 So.2d 899 (1957), is analogous and we find it to be controlling in the matter now before us.

In Baker, supra, the trial court approved a settlement that provided the employer was to be paid a certain amount for a specified number of weeks for a total claim in excess of $5,000. Payments undér this court approved settlement were made until the employee died. The employee’s representative attempted to require the remaining payments be paid to the employee’s estate. The Supreme Court of Alabama stated that the payments ceased upon death and that the unaccrued installments had not become vested and, therefore, the estate was not due the future installments. The supreme court clearly distinguished between a lump sum agreement and a judgment for installment payments.

The trial court in effect found the instant judgment to be one for installment payments and, therefore, not vested. Additionally, it is clear that the trial court determined that upon the happening of the statutory events ceasing eligibility to receive future installments, such installments were not required to be paid. We agree with these determinations.

The case is due to be affirmed.

AFFIRMED.

WRIGHT, P. J., and BRADLEY, J., concur.

ON REHEARING

HOLMES, Judge.

The appellant in brief, in support of her application for rehearing, points out that this court, in its original opinion, stated that “less than $1000 remained to be paid.” Appellant further points out that, in fact, approximately $1,500 - remained to be paid.

In appellant’s original brief, the following is found, “. . . the stipulated facts showed that only $17,282.17 of the original $18,000.00 judgment had been paid . . .” The above resulted in our conclusion that less than $1,000 remained to be paid. However, contrary to appellant’s original statement to this court, our search of the record now reveals that, in fact, approximately $1,500 remained to be paid. Our original opinion is so amended to reflect this slight, somewhat irrelevant error.

OPINION EXTENDED. ‘ APPLICATION FOR REHEARING OVERRULED.

WRIGHT, P. J., and BRADLEY, J., concur.


author: MADDOX, Justice. JONES, Justice

text:
    In re Mary BELCHER et al. v. VULCAN MATERIALS COMPANY, a corporation. Ex parte Mary Belcher et al.
    77-414.
    Supreme Court of Alabama.
    May 26, 1978.
    B. Greg Wood, for Love, Love, Lawrence & Burton, Talladega, for petitioners.
   MADDOX, Justice.

WRIT DENIED.

By denying the writ, we point out that writs of certiorari are frequently denied without any consideration of the merits. Haden v. Olan Mills, Inc., 273 Ala. 129, 135 So.2d 388 (1961). A denial of certiorari should never be considered as an expression by the reviewing court on the merits of the controversy. See Hamilton Brown Shoe Co. v. Wolf Brothers, 240 U.S. 251, 36 S.Ct. 269, 60 L.Ed. 629 (1916). Our denial of the writ should not be understood as approving or disapproving the language used, or the statements of law contained in the opinion of the Court of Civil Appeals. See Cooper v. State, 287 Ala. 728, 252 So.2d 108 (1971).

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

JONES, Justice

(concurring specially):

I concur in denying the writ, but in doing so I feel constrained to make the following observation: The non-entitlement to periodic compensation by a minor upon reaching 18 years of age is governed by the express language of Tit. 26, § 286, Code (§ 25-5-65, Code 1975), and not by any rationale contained in U. S. Steel v. Baker, 266 Ala. 538, 97 So.2d 899 (1957). Indeed, following Baker § 279 was amended by adding language which now appears as the second sentence of § 25-5-57(a)(5), Code 1975, creating a new substantive right in the widow and minor children to money denied them in Baker. See also, U. S. Steel v. Hubbert, 268 Ala. 674, 110 So.2d 260 (1959).


text:
    In re Sandra Diane BEAVERS (Garner) v. John Michael BEAVERS. Ex parte Sandra Diane Beavers (Garner).
    Civ. 1406.
    Court of Civil Appeals of Alabama.
    April 5, 1978.
    Rehearing Denied May 24, 1978.
    James D. Harris, Jr., Montgomery, for petitioner.
    J. Richard Piel, Montgomery, for respondent.
   WRIGHT, Presiding Judge.

This is a petition for writ of certiorari by Sandra Beavers Garner seeking review of an order holding her in contempt for failing to comply with previous orders of the court relating to rights of visitation by the father with their child. We affirm the order of the trial court.

The mother had primary custody of the child of the parties. Under the terms of the last order, the father was given the right, among others, to have custody of the child “one week during Christmas vacation.” Such custody was to be preceded by a notice to the mother a month prior to the exercise of the visitation.

The record shows that the father gave written notice in October to the mother that he would exercise his Christmas visitation on December 23, 1977 at 8:00 A.M. The mother responded that she had already made plans for Christmas Day with the child and that the father could pick up the child on December 26 ratner than December 23.

The father filed a petition to show cause why the mother was not in contempt for failure to abide by the orders of the court and further requested an order directing delivery of the child to him on December 23. The mother filed answer averring that the condition of the exercise of visitation rights by the father was “reasonableness” and that his request was not reasonable.

The court held oral hearing on December 9, 1977. It entered judgment on December 19 finding the mother in contempt for “failure to comply with previous orders of the court.” It assessed no penalty for such contempt but ordered the child delivered to the father on December 23 at 8:30 A.M. The mother was ordered to pay $150 in attorney fees.

The only matter which we are authorized to consider by way of certiorari is whether the finding of the mother in contempt was according to law. Ex parte Abercrombie, 277 Ala. 479, 172 So.2d 43 (1965). The other orders of the court amplifying previous orders or directing obedience to the prior order are proper subjects of appeal and not certiorari.

The scope of review in contempt cases on certiorari is limited to questions of law. Ex parte Abercrombie, supra. If there is legal evidence to support the finding of fact, we may not disturb, the judgment of the trial court. Hardy v. Hardy, 46 Ala.App. 249, 240 So.2d 598 (1970).

In this case, though there was evidence presented to the trial court at an oral hearing, such evidence does not appear in the record, either by a reporter’s transcript or by presentation under Rule 10(d), ARAP.

Under such condition of the record, there is no source for examination to determine if the evidence supports the action of the court. We must assume for purposes of our review that there was legal evidence to support the finding of the wife in contempt of prior orders of the court. Cordell v. Poteete, 57 Ala.App. 645, 331 So.2d 400 (1976). There can be no doubt that the court is empowered by law to find a party in contempt if she has, in fact, violated or failed to comply with its orders.

We deny, in our discretion, the assessment of further attorney’s fees against the wife for this appeal.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


author: HOLMES, Judge.

text:
    Clarence MOUTRY v. The STATE of Alabama.
    Civ. 1369.
    Court of Civil Appeals of Alabama.
    May 3, 1978.
    Rehearing Denied May 31, 1978.

      J. Mason Davis of Davis & Brown, Birmingham, for appellant.
    William J. Baxley, Atty. Gen., Mary Lee Stapp and Carol F. Miller, Asst. Attys. Gen., for appellee.
   HOLMES, Judge.

The appellant-defendant was found to be the father in a paternity proceeding before the Family Court of Jefferson County. Appellant, through able and distinguished counsel, then attempted to appeal that decision to the Circuit Court of Jefferson County. That court, pursuant to Code of Ala. 1975, § 26-12-8, granted appellee’s motion to dismiss the appeal for failure to timely file a written notice of appeal. The appellant appeals and we affirm.

At the outset, we note in pertinent part, Code of Ala.1975, § 26-12-8, as it relates to notice of appeal in paternity proceedings:

“The state of Alabama or the reputed father'may appeal from any final judgment rendered under section 26-12-4 by the court in which the proceeding originated within 10 days after rendition thereof by filing written notice of such appeal within said prescribed period with the clerk of the circuit court to which said appeal is taken and in the court rendering the judgment. . . . ” [Emphasis supplied.]

The record reveals the following: After the paternity proceeding noted above, appellant mailed a letter to the Clerk of the Family Court of Jefferson County giving written notice of appeal and demanding a struck jury trial. This letter was received and filed in the family court. The letter to the family court also noted that copies were to be sent to the Register of the Circuit Court of Jefferson County and the attorney for the appellee. The record, however, does not contain a written notice of appeal “filed” by either the clerk or register of the circuit court, nor is there any evidence that such notice of appeal was ever received by the court.

As noted above, the court granted appel-lee’s motion to dismiss the appeal for failing to timely file a written notice of appeal with the court.

As we perceive the appellant’s argument, he contends that the mailing of the letter of notice of appeal is sufficient to perfect the requirement of filing such motion with the clerk and that the court erred to reversal in dismissing the appeal. Such is not the case.

The law in Alabama is settled in that an appeal is not a matter of vested right but is by the grace of statute and must be perfected pursuant to the time and manner prescribed in the controlling statute. If the requirements of such statute are not met, the appeal must be dismissed. See LeFlore v. State ex rel. Moore, 288 Ala. 310, 260 So.2d 581, cert. denied, 409 U.S. 1007, 93 S.Ct. 436, 34 L.Ed.2d 299 (1972).

As noted above, § 26-12-8 requires that written notice of appeal be filed with both the family court, i. e., court rendering the judgment, and the circuit court. In this case, no notice of appeal was filed with the circuit court.

Whereas, service of papers is complete upon mailing, filing is not complete until the notice is delivered to the proper filing officer. See Henson v. Henson, 261 Ala. 63, 73 So.2d 100 (1954); Covington Bros. Motor Co. v. Robinson, 239 Ala. 226, 194 So. 663 (1940); Rule 5(e), ARCP.

Put another way, the so-called “mailbox rule,” as applied to contracts or service of papers, is not applicable in the context of a “filing” requirement. A document has not been filed until it has actually been received by the court; mere mailing is not enough. See Blades v. U. S., 407 F.2d 1397 (9th Cir. 1969); see also 16A Words and Phrases, “Filing.”

Appellant does not contend nor does the record reveal that he ever filed a notice of appeal with the circuit court. Instead, the notice of appeal was mailed. Since he is unable to show that the circuit court received his notice of appeal, the issue of substitution of lost papers, under § 12-20-26, as argued in appellant’s excellent brief, does not arise since receipt and filing by the court is a prerequisite of such substitution. See Baxley v. Jackson, 216 Ala. 411, 113 So. 500 (1927); Tate v. Powell, 184 Ala. 46, 63 So. 542 (1913).

Filing of the statutory notice of appeal with the circuit court is necessary to perfect the appeal and is therefore jurisdictional. We have no alternative but to find that an appeal shall be dismissed if the notice of appeal was not timely filed to invoke the jurisdiction of the court. See LeFlore v. State ex rel. Moore, supra; Rule 2, ARAP; Rule 3, ARAP.

By virtue of the appellant’s failure to file the required notice of appeal, the court did not err in dismissing the appellant’s appeal. The above being dispositive of the issues in this case, the trial court is thereby due to be and is affirmed.

AFFIRMED.

WRIGHT, P. J., and BRADLEY, J., concur.


author: BRADLEY, Judge.

text:
    Jimmy W. CRAFT v. Tom OWENS, d/b/a J. A. Owens and Company.
    Civ. 1399.
    Court of Civil Appeals of Alabama.
    May 24, 1978.
    James S. Hubbard, Anniston, for appellant.
    Walter J. Merrill of Merrill, Porch, Dosier & Dillon, Anniston, for appellee, J. A. Owens & Co.
    Carl H. Merrill, Heflin, and Wallace & Owens, Inc., Miami, Okla., for appellee, Tom Owens.
   BRADLEY, Judge.

This petition for writ of certiorari is the result of a judgment rendered by the Circuit Court of Cleburne County denying appellant, Jimmy W. Craft, benefits under the Alabama Workmen’s Compensation Act.

Appellee, Tom Owens (d/b/a J. A. Owens & Company), operated a small hardware store in Heflin, Alabama. Owens decided to remodel his home and hired Craft, among others, as a carpenter to work on the home. Owens paid the laborers in cash and the work done on Owens’ place of residence was not connected with the operation of J. A. Owens & Company hardware store.

While in the employment of appellee, Craft sustained an injury which resulted in the loss of vision in one eye. Thereafter, Craft filed a claim for workmen’s compensation benefits against Tom Owens. Craft later amended his claim to include J. A. Owens & Company. A hearing was held on the matter and the trial court found that Craft was not entitled to receive workmen’s compensation benefits because his employment with Owens was casual and not in the usual course of Owens’ business. Consequently, the court concluded that Craft was precluded from obtaining workmen’s compensation benefits under the statutory provisions contained in Title 26, section 263, Code of Alabama 1940 (Recomp.1958) (currently found in Title 25, chapter 5, section 50, Code of Alabama 1975). Following the court’s judgment denying him benefits, Craft petitioned this court for writ of cer-tiorari asking that we reverse the judgment rendered below.

The sole issue for our consideration on appeal is whether the letter or spirit of the Alabama Workmen’s Compensation Law provides coverage for appellant, the carpenter hired to help build or remodel the private residence of the appellee. We hold that carpenters performing services of this nature are not entitled to workmen’s compensation benefits and therefore affirm the judgment of the circuit court.

Title 26, section 263 exempts from workmen’s compensation coverage employees who are engaged in “casual employment” and whose employment is not in the “usual course of business of the employer.” Ex parte Little Cahaba Coal Co., 213 Ala. 596, 105 So. 648 (1925); Tuscaloosa Compress Co. v. Hagood, 229 Ala. 284, 156 So. 633 (1934). Construing statutory provisions similar or identical to Title 26, section 263, courts of other jurisdictions have consistently held that compensation acts do not apply to situations where a carpenter has been hired to assist in the construction or remodeling of his employer’s private residence. Lewis v. Industrial Comm’n, 93 Ariz. 324, 380 P.2d 782 (1963); Lynskey v. Lind, 94 Idaho 788, 498 P.2d 1261 (1972); Schuler v. Holmes, 242 Iowa 1303, 49 N.W.2d 818 (1951); Clement v. Minning, 157 Md. 200, 145 A. 485 (1929); Petrone v. Kennedy, 75 N.J.Super. 295, 183 A.2d 124 (1962). 1A Larson’s Workmen’s Compensation Law Inclusions and Exemptions § 50.21. In view of the above cited authority, we believe that the trial court properly concluded that Craft was hired as a carpenter to aid in the remodeling of his employer’s (Owens) private residence and that such employment was casual in nature as well as outside the scope of his employer’s normal course of business as the proprietor of a hardware store. The evidence supported the court’s judgment and we will not disturb that judgment on appeal.

AFFIRMED.

WRIGHT, P. J., and HOLMES, J., concur.

      . We note a distinction between the issue decided in the present case and the holdings found in the cases relied upon by Craft in his petition to this court. Ex parte Little Cahaba Coal Co., 213 Ala. 596, 105 So. 648 (1925); National Cast Iron Pipe Co. v. Higginbotham, 216 Ala. 129, 112 So. 734 (1927). Little Cahaba Coal Co. and Higginbotham involved cases in which a carpenter and painter, respectively, were employed to perform services on the employers’ ‘‘company owned home or homes.” Moreover, the carpenter in Little Cahaba Coal Co. was hired as a member of a regular crew of carpenters which the defendant retained for various maintenance duties, while the painter in Higginbotham was employed as a member of a team of painters which the employer engaged periodically to paint the houses of its industrial employees. On the basis of the factual situations involved in those cases our supreme court held that the trial court had correctly determined that the injured worker was entitled to workmen’s compensation benefits. However, we believe that the facts on which Little Cahaba Coal Co. and Higginbotham are premised are clearly distinguishable from the situation before us now. Accordingly, we find neither case controlling in this instance.


text:
    J. S. SUTTON v. Marie SUTTON.
    Civ. 1407.
    Court of Civil Appeals of Alabama.
    May 24, 1978.

      McCoy Davidson of Roberts & Davidson, Tuscaloosa, for appellant.
    Richard Y. Roberts and Richard C. Shelby, Tuscaloosa, for appellee.
   BRADLEY, Judge.

This appeal is from an order rendered by the Circuit Court of Tuscaloosa County with respect to appellee’s (Marie Sutton) petition for rule to show cause (rule nisi) and appellant’s (J. S. Sutton) request for modification of a portion of a final divorce decree awarding child support to appellee. After an oral hearing on the parties’ contentions, the circuit court held that J. S. Sutton was not in contempt for failing to pay child support. In addition, the court awarded Marie Sutton past-due child support in the sum of $10,000. From the judgment of the circuit court J. S. Sutton has filed this appeal.

The parties were divorced in September of 1968. The divorce decree entered at that time ordered the husband (J. S. Sutton) to pay his ex-wife (Marie Sutton) child support in the sum of $120. The husband was to make these payments bi-monthly. At the time of their divorce, all three of the couple’s children were minors.

In April of 1969 the husband filed a petition in the Tuscaloosa County Circuit Court seeking modification of the divorce decree; however, for reasons. which are not clear from the record, no hearing was held on the husband’s motion until October 26, 1977. The hearing on his petition to modify resulted from the fact that in March of 1977 the wife requested that the Tuscaloosa County Circuit Court find her former husband in contempt for failure to provide child support. Upon receiving the wife’s petition requesting that her ex-husband show cause why he should not be held in contempt, the circuit court stated that it would also consider the petition of the husband for modification of the original divorce decree. No objection was made to the court’s action by either party and, as a consequence, the claims of both husband and wife were consolidated by the court and tried in one suit. After the presentation of evidence by the parties, the circuit court concluded that the husband was in arrears with regard to his obligation to provide child support and ordered him to pay his former wife the sum of $10,000. The court also refused to find the husband in contempt. Finally, the court modified the original divorce decree and held that the husband was no longer required to make child support payments.

The husband then brought this appeal contending that the circuit court erred in two respects. First, the husband urges that the court had no jurisdiction to entertain the wife’s petition to show cause since contempt proceedings are not the proper method for enforcing decrees for the payment of child support installments which are already due in situations where the children have attained majority. Second, the husband claims that the court included in its arrearage calculations child support payments which accrued after his children reached adulthood. Accordingly, the husband argues that he is under no duty to provide child support once his children became nineteen years of age and that the court’s inclusion of payments arising after their nineteenth birthday demonstrates that the court erred in the amount of arrearage awarded.

In support of his first contention, the husband relies on a number of cases from other jurisdictions which have held that after children attain majority, a divorced wife cannot cause her former husband to be punished for contempt of court for the nonpayment of child support money accrued prior to the majority of the children. E. g., Corbridge v. Corbridge, 230 Ind. 201, 102 N.E.2d 764 (1952); Dawson v. Dawson, 71 Wash.2d 66, 426 P.2d 614 (1967). 32 A.L.R.3d 888, § 2 (1970). Contra, Ex parte Hooks, 415 S.W.2d 166 (Tex.1967); Casey v. Casey, 175 Or. 328, 153 P.2d 700 (1944). 32 A.L.R.3d 888, § 3 (1970). However, the cases cited by the husband are not applicable to the instant case.

In the case at bar the circuit court considered not only a petition by the wife seeking to have her former husband held in contempt but also the husband’s petition for modification of the original divorce decree. The husband submitted himself to the jurisdiction of the court and presented arguments (and evidence) in support of his petition for modification. Likewise, he presented his defenses to the contempt proceedings. In view of the fact that the parties appeared before a court,which had jurisdiction to entertain the husband’s petition for modification and a fujl trial upon the merits of all matters before the court was afforded the parties, we decline to hold that the court did not have jurisdiction to entertain the contempt proceeding. Halmu v. Halmu, 247 Wis. 124, 19 N.W.2d 317 (1945).

Moreover, the judgment appealed from reveals that the court made no attempt to punish or threaten the husband with contempt. Indeed, the judgment was denominated as a “Decree Modifying Prior Decree of Court.” And while it is true that contempt proceedings were involved in the dispute before us now, we are convinced that the contempt proceedings were treated by the circuit court as an action to determine arrearage and therefore conclude that the husband was not prejudiced by the fact that the court considered the wife’s petition to show cause. Halmu v. Halmu, supra.

Finally, even if we were to adopt the rule that a divorce court does not have jurisdiction in a contempt proceeding to enforce its order to pay child support on unpaid installments accruing before a child reaches majority, where such proceedings are commenced after the child reaches majority, the rule would have no applicability to the present circumstances.

In this case the divorce court’s original order awarded child support to the wife in the form of a bi-monthly lump-sum payment. There was no particular allocation of money for each child. Two of the parties’ three children had attained majority at the time the wife filed her petition to show cause. However, the husband had the burden of showing that both the elder children had become nineteen years of age. Moreover, the couple’s third child had not celebrated her nineteenth birthday when the contempt proceedings began. Consequently, the issue for the court’s determination was whether the husband was relieved from past-due support payments on the grounds that his two elder children had reached the age of majority and his minor daughter had become self-supporting before these payments became outstanding judgments. We believe that the ascertainment of the children’s status was a factual question over which the court could validly exercise its jurisdiction regardless of whether the matter before it was characterized as a contempt proceeding, an action for modification of child support or both. See Allison v. Binkley, 222 Ark. 383, 259 S.W.2d 511 (1953).

The second issue presented by the husband for our review involves his claim that the circuit court included in its arrearage calculations child support payments which accrued after his children reached adulthood. This argument is premised on his assertion that the court should have allocated to each child a portion of the lump-sum awarded as child support and then reduced the husband’s support obligation by that amount as each child attained the age of nineteen years. In this manner the husband contends that the amount of arrear-age would have been significantly reduced.

We find no merit to the husband’s contention. The circuit court was under no duty to apportion the lump-sum award as child support. See Self v. Self, 49 Ala.App. 665, 275 So.2d 345 (1973). The court could have designated a specific amount of the support award as necessary for the maintenance of each child and reduced the overall amount due in accordance with the children’s attainment of majority. On the other hand, the court had the authority to conclude that the entire amount of support awarded was necessary for the remaining minor child and thus refuse to reduce the award even though the elder children had reached the age of majority. See Nabors v. Nabors, Ala.Civ.App., 354 So.2d 277 (1978); McGugin v. McGugin, Ala.Civ.App., 357 So.2d 347 (1978). The decision with regard to this matter was within the court’s discretion and we are not persuaded that the court clearly and palpably abused its discretion by failing to allocate a portion of the lump-sum support payments to each child.

The husband also argues that the court refused to grant him credits for money and gifts which he provided for his children. It is not apparent from the record, however, that the court denied him credits for the money and gifts which he purportedly furnished when it ascertained the amount of support in arrears. Furthermore, a court is under no compulsion to give a husband credits for gifts and gratuities made prior to the date on which a child has reached majority, married or become self-supporting. Melvin v. Furr, 275 Ala. 428, 155 So.2d 593 (1963). The award of credits in instances such as the one before us is within the discretion of the trial court and we will not disturb a decision made in the exercise of such discretion in the absence of plain and palpable abuse on the part of the court. We find no such abuse in the case at bar.

The court in this case heard the evidence ore tenus and examined the various documentary proof offered by the parties. On the basis of this evidence the court determined the amount of child support owed, and awarded the wife a money judgment. This judgment was not in excess of the amount of arrearage reasonably supported by the evidence. Accordingly, we see no reason to disturb the court’s judgment on appeal. Nunn v. Stone, Ala.Civ.App., 356 So.2d 1212 (1978).

AFFIRMED.

WRIGHT, P. J., and HOLMES, J., concur.


text:
    Irene Duke TAYLOR v. Wister Eugene TAYLOR.
    Civ. 1408.
    Court of Civil Appeals of Alabama.
    May 24, 1978.

      Douglas M. Bates of Adams & Bates, Dothan, for appellant.
    Wm. G. Hause and Robert F. Northcutt of Hardwick, Hause & Segrest, Dothan, for appellee.
   BRADLEY, Judge.

This appeal is from a decision rendered in the Circuit Court of Houston County wherein the court modified its original judgment awarding custody of the parties’ two minor children to appellant (Irene Taylor). Following the presentation of evidence by both parties, the court removed the children from the custody of appellant and placed them in the care and custody of appellee (Wister Taylor). From the court’s judgment Irene Taylor has appealed.

Three issues are submitted on appeal for our consideration: (1) appellant claims that after the presentation of her former husband’s case-in-chief there was not a scintilla of evidence to support modification of the original judgment and that as a consequence the trial court erred in denying her motion for a directed verdict; (2) she contends that the judgment of the court is contrary to the overwhelming preponderance of evidence and should therefore be reversed; and (3) appellant urges that the trial judge improperly refused to recuse himself.

We believe that there is no merit to either of the first two contentions offered by the appellant in her effort to obtain reversal of the trial court’s decision. Not only was there a scintilla of evidence presented to the court in support of modification, there was also a sufficient amount of evidence adduced at trial to justify the court’s removal of the children from the custody of the appellant-wife and place them in the care of the appellee-husband. Consequently, we cannot accept appellant’s claim that she should have received a directed verdict at the close of the appellee’s case-in-chief or that the judgment of the trial court was contrary to the overwhelming preponderance of evidence presented by the parties.

Moreover, in view of the fact that a change in circumstances and the welfare of the child are of fundamental importance in suits seeking the modification of a custody award, we are persuaded that a brief recitation of the facts relevant to such inquiries will demonstrate that there was sufficient evidence to support the action taken by the trial court in this matter.

After the parties’ divorce, appellant and her two sons resided together. A third child, a daughter, lived with appellee. Subsequently, the daughter married and she and her new husband moved into their own home. Appellant also remarried and the boys, who were fourteen and ten years of age at the time of the trial, did not get along with their stepfather. Indeed, there was testimony from both sons that the stepfather would join them while they were “roughhousing” and that he would pull down their pants and pinch their genitals. Furthermore, there was evidence that appellant struck her older son with a board and with her fist.

In addition, the record reflects that the sons did poorly in schoo: while they were living with appellant. Moreover, the sons moved with appellant to a rural community in Barbour County when she remarried; they blamed their low grades on this move, stating that they had done better in school when they had resided at their former home in Dothan, Alabama. Both boys also testified that they did not like living in Barbour County but preferred to live in Dothan with their father (appellee) who had remarried after his divorce from appellant.

Appellee stated that if he were granted custody he had the financial resources to support the boys as well as his new wife’s three children by a prior marriage. He testified that it was the desire of his new wife to have the boys live with them. Similarly, both sons indicated that they liked their stepmother and her children.

On the other hand, there was testimony presented on behalf of appellant to the effect that her ex-husband did not supervise the boys when they visited him in Dothan. Appellant testified that when her sons returned from their visits with their father, they refused to obey her and that the older boy would act in such a manner as to be virtually unmanageable. In addition, the eldest son apparently obtained marijuana from friends in Dothan and smoked it there and at his home in Barbour County. Appellant also indicated her disapproval of appel-lee’s new wife and presented the testimony of a police officer who stated that appellee’s new wife had attempted suicide prior to her marriage to appellee. Finally, appellant intimated that there was a physical relationship between her fourteen year old son and the fifteen year old daughter of her former husband’s new wife.

In a proceeding to modify a prior decree awarding custody of a child, the trial court must apply a two-pronged test: (1) whether it is in the best interests and welfare of the child to change custody; and (2) whether the party seeking modification has alleged and shown a change in conditions which will justify modification. Quintanilla v. George, Ala.Civ.App., 340 So.2d 804, cert. den. 340 So.2d 808 (1976). Of course, there is a strong presumption in favor of the ultimate decision reached by the trial court after the application of this two-pronged test. Junkin v. Junkin, Ala.Civ.App., 332 So.2d 392 (1976). Accordingly, in instances where the trial court modifies a child custody decree after it has heard oral testimony, its judgment will not be reversed on appeal unless the judgment is plainly and palpably wrong. Wood v. Wood, Ala.Civ.App., 333 So.2d 826 (1976).

Much of the evidence presented in the instant case was in sharp conflict. Consequently, the ore tenus rule must be applied to the court’s finding. The trial court found that there was sufficient evidence that a change in circumstances had occurred and that the best interests of the children would be served by removing them from appellant’s custody and placing them in the custody of appellee. Thus we are not prepared to hold that the court plainly and palpably erred in modifying its original child custody decree.

The final issue for our determination concerns appellant’s contention that the trial judge improperly refused to recuse himself in violation of Canon 3 C(1), A.C.J.E., Code of Alabama 1975. Appellant apparently bases this argument on her claim that the judge who heard the present case was also the presiding judge in two other actions dealing with the same subject matter and involving the same parties. Moreover, appellant insists that the judge’s statement made during the second hearing on the modification of custody matter demonstrates his prejudice. We cannot agree.

Canon 3 C(1) provides in pertinent part:

“A judge should disqualify himself in a proceeding in which . . .his impartiality might reasonably be questioned

However, we noted in Wallace v. Wallace, Ala.Civ.App., 352 So.2d 1376 (1977), that while Canon 3 C(1) of the Alabama Canons of Judicial Ethics had the force of law, both judges and the bar should be aware that recusal was not required upon mere accusation of bias unsupported by substantial fact.

In this case counsel for appellant contends that the judge’s bias was indicated by a remark made by the judge to the parties in another case. The judge stated in that case that he had an opinion concerning the matter before him. However, we would point out that the judge’s statement in that case was made in reference to the fact that he had held one hearing on the matter, had issued an order requiring the wife to desist in certain activities and was engaged in a second hearing to determine if she had complied with his order.

Moreover, we rejected an argument similar to the one made by appellant here in McGough v. McGough, 47 Ala.App. 223, 252 So.2d 646 (1970). In McGough v. McGough the moving party requested that the judge recuse himself because of possible bias arising out of a remark made to the judge by the movant in another case. On that factual basis we held that the party seeking recusal had failed to adequately demonstrate bias and prejudice on the part of the judge and that the judge had acted improperly in removing himself from the case. In view of our holding in McGough v. McGough and the relevant facts of the instant case, we must conclude that there was insufficient evidence of bias on the part of the judge to warrant his recusal.

We have examined the record carefully and found no error. Therefore, the judgment of the trial court is affirmed.

AFFIRMED.

WRIGHT, P. J., and HOLMES, J, concur.

      . Although not an exhaustive list, a court may consider the following factors in a modification of custody dispute: (1) sexual abuse of the child, see In re Armentrout, 207 Kan. 366, 485 P.2d 183, 58 A.L.R.3d 1065 (1971); (2) physical abuse of the child, Miller v. Parker, 53 Ala.App. 312, 299 So.2d 754 (1974); and (3) promiscuous conduct of a parent which detracts from a stable, worthwhile home environment for the child, Junkin v. Junkin, Ala.Civ.App., 332 So.2d 392 (1976). Other noteworthy factors which are relevant in determining custody, although not controlling, are: (1) financial ability to care for the child, Fort v. Fort, 246 Ala. 83, 18 So.2d 870 (1944); (2) superior residence and job of parent seeking custody, Satterfield v. Satterfield, 250 Ala. 245, 34 So.2d 4 (1948); (3) preference of the child, Hattrick v. Hattrick, 52 Ala. 539, 295 So.2d 260 (1974); (4) advancing age of the child, Orezza v. Ramirez, 19 Ariz.App. 405, 507 P.2d 1017 (1973); (5) beneficial remarriage of noncustodial parent, 27B C.J.S. Divorce § 317(2); and (6) the child’s difficulties in school, Penn v. Abell, Tex Civ.App., 173 S.W.2d 483 (1943).

      . Taylor v. Taylor, Ala.Civ.App., 349 So.2d 588 (1977).


text:
    Tommy L. SAGER v. ROYCE KERSHAW COMPANY, INC., a corporation.
    Civ. 1413.
    Court of Civil Appeals of Alabama.
    May 24, 1978.

      Tommy L. Sager, pro se.
    James W. Garrett, Jr., Montgomery, for Royce Kershaw Company, Inc., a Corp.
   WRIGHT, Presiding Judge.

This is a workmen’s compensation case.

Plaintiff filed a workmen’s compensation action against defendant claiming compensation for a permanent back injury sustained while employed by defendant in Illinois. Defendant moved for summary judgment alleging a compromise and a settlement of plaintiff’s claim in Illinois approved by the Illinois Industrial Commission. Plaintiff answered claiming mutual mistake and filed affidavit stating that the settlement was entered into after statement by a physician that he had suffered a back sprain with no expected permanent injury and that recovery should be had in four to six weeks. He subsequently learned that he had suffered disc injury which necessitated surgery. As a result he has a permanent partial disability of the back. Plaintiff was represented by counsel in making the settlement. Their terms of the settlement were:

Six weeks temporary total $ 972.00
15% of leg — 30 weeks 4,860.00
Medical 350.00
$6,182.00

A fee of $1,236.00 was awarded plaintiff’s counsel.

Upon considering the motion, the trial court entered summary judgment in favor of defendant.

After setting out the settlement agreement hac verba, the learned trial judge said in his judgment the reply and affidavit of plaintiff failed to raise a genuine issue of fact with regard to the settlement and release. In an appeal from the granting of a summary judgment, that is the only issue— whether after considering pleadings and affidavits before the court there remains any genuine issue of material fact to be determined and the moving party is entitled to judgment as a matter of law. Folmar v. Montgomery Fair Co., 293 Ala. 686, 309 So.2d 818 (1975).

We see no purpose in setting out in full the terms of the settlement and release. It is sufficient to say that it fully covers all of the legal phraseology necessary to a complete release of a claim for damages in tort. It also provides that it must be approved by the Illinois Industrial Commission. If this were an ordinary claim in tort there would be little room for argument as to its finality. However, this is not a tort claim arising from common law, but a workmen’s compensation claim arising from and controlled by statute. Therefore, we must look to the Workmen’s Compensation Act for guidance.

Section 25-5-35(e), Code of Alabama (1975) provides that the payment or award of benefits under the law of another state is no bar to an action in Alabama if brought within the statute of limitations. As defendant raised no defense that plaintiff was not properly before the court, we assume it concedes the application of the Alabama Workmen’s Compensation Act. Therefore, we look further to the Alabama act as to settlements.

Section 25-5-56 is headed “Settlements between parties.” It says, as pertinent, the following:

“The interested parties shall have the right to settle all matters of compensation and all questions arising under this article between themselves, and every settlement made under this article shall be in amount the same as the amounts or benefits stipulated in this article. No settlement for an amount less than the amounts or benefits stipulated in this article shall be valid for any purpose, unless a judge of the circuit court determines that is for the best interest of the employee ... to accept a lesser sum and approves such settlement. . . ”

Section 25-5-56 clearly removed settlement of workmen’s compensation claims from the ambit of the principles applicable to the settlement and release of ordinary personal injury claims.

Defendant in his motion for summary judgment has relied on the principles of contract applicable to settlement and release. A workmen’s compensation claim may not be settled and released in that way. Tennessee Coal, Iron & R. R. v. King, 26 Ala.App. 581, 164 So. 757 (1935). Assuming arguendo that the approval of the settlement by the Illinois Industrial Commission renders the settlement valid under Illinois law, such does not bar the bringing of this action in Alabama under Section 25-5-35. That section is clear to the effect that in spite of award of benefits by another state, a claimant subject to the Alabama act may still bring his action here to determine his right to and amount of benefits due under Alabama law. If an award of benefits in Illinois is no bar to an action in Alabama, it can only logically follow that a settlement in Illinois can be no bar to an action in Alabama.

As we understand the statutes, there is at least a right of action in plaintiff on his claim in Alabama to determine if the payment in Illinois was less than what he would have recovered in Alabama. Summary judgment was erroneously granted.

We further are not satisfied that the settlement and release could not be set aside on the basis of mutual mistake which issue of fact was substantially presented by plaintiff’s affidavit. Though we know of no Alabama precedent in workmen’s compensation cases, settlements in such cases have been refused effect by courts in other states on the ground of mutual mistake of material fact. Mattson v. Abate, 279 Minn. 287, 156 N.W.2d 738 (1968); Linton v. Mauer-Neuer Meat Packers, 71 N.M. 305, 378 P.2d 126 (1963). The latter case is particularly appropriate in this case.

Defendant has relied on the law of settlement and release espoused by the cases of Alabama By-Products Corp. v. Kennedy, 228 Ala. 410, 153 So.2d 862 (1934), and Miles v. Barrett, 223 Ala. 293, 134 So. 661 (1931). We believe the case of Central of Ga. Ry. v. Ramsey, 275 Ala. 7, 151 So.2d 725 (1962) effectively overrules the principle of those cases and establishes the general rule in Alabama that a mutual mistake of material fact at the time of signing of a release is ground for rescission. We believe also that the statements and holding of the court in the case of Louisville & Nashville R. R. v. Solchenberger, 270 Ala. 536, 120 So.2d 704 (1960) concerning mutual mistake are espe-dally applicable to a workmen’s compensation case.

It is our decision that the defense of settlement and release put forth by the defendant is not sufficient as a matter of law to preclude the possibility that plaintiff might establish a right to recovery under the Workmen’s Compensation Act. Such a burden falls upon the party moving for a summary judgment. Rotermund v. United States Steel Corp., 474 F.2d 1139 (8th Cir. 1973); Folmar v. Montgomery Fair Co., supra. We consider that plaintiff was entitled to further prosecute his suit in Alabama even though he had previously received payments in Illinois under the provisions of Section 25-5-35, and we further believe that the complaint and answer and affidavit to the motion for summary judgment presented a possible issue of fact and law as to whether the settlement and release were subject to be rescinded on the ground of mutual mistake of fact. The judgment of the trial court is reversed and the ease remanded.

REVERSED AND REMANDED.

BRADLEY and HOLMES, JJ., concur.

      . We are not informed on that point.


text:
    MID-STATE HOMES, INC., a corporation v. Johnnie Lee BERRY and Myrtis Teague.
    Civ. 1415.
    Court of Civil Appeals of Alabama.
    May 24, 1978.

      R. A. Norred, Birmingham, for appellant.
    Ben H. Lightfoot, Luverne, for appellees.
   WRIGHT, Presiding Judge.

This is an action for breach of contract.

Defendant, Mid-State Homes, Inc. is the financing agency for Jim Walter Homes. Jim Walter Homes is a corporation which sells shell houses. Plaintiffs learned that Mid-State Homes had repossessed an unfinished shell house located in Crenshaw County, Alabama, and was offering it for sale. They contacted the sales representative for Mid-State at his office in Montgomery.

They were informed of the conditions of the sale of the house and signed an instrument entitled an “agreement for deed.” They gave the sales representative three hundred dollars as down payment. The instrument which the plaintiffs signed stated on its face that its terms were subject to the approval of Herb Clarkson. The Mid-State representative told plaintiff that the agreement would have to be forwarded to Tampa, Florida and signed and approved by Clarkson. The original instrument was dated December 31, 1976. It, together with the down payment, was forwardedt to Tampa. Upon examination there it was determined to contain errors. A corrected instrument, still containing the proviso of approval by Clarkson, was sent to the Montgomery representative. He secured plaintiffs’ signatures on February 12, 1977 and returned it to Tampa.

According to plaintiffs’ testimony, the representative of defendant told them he was sure the sale would go through and approved their request to make repairs and improvements to the house while awaiting the approval of the sale by Clarkson. Acting on such alleged assurance, plaintiffs did make improvements and performed labor on the house. They established that they had expended some $1,000 for work and materials on the improvements.

On March 5, 1977, plaintiffs attempted to make the first scheduled payment on the house. They were informed that the prior owner was trying to pick up his payments and no more money could be accepted until the problem was straightened out. A few days thereafter the house was destroyed by fire. Plaintiffs’ down payment was returned to them. Their demand made by counsel for payment of the cost of the labor and materials they put in the house was refused.

Plaintiffs brought suit for breach of contract. Trial was for breach of contract. The court’s only charge to the jury was on the law of contracts and their breach. The allegations of the complaint are that plaintiffs entered into a contract with defendants for the purchase of a house and after entering the contract they made improvements to the house upon the representation by the agent that it would be safe to do so; after making the improvements, defendants refused to convey the property and defendants lost their labor and materials.

The theory of plaintiff’s case may have been made evident to the jury by opening and closing statements of counsel, but it is not very clear from the transcript of the evidence and the court’s charge. We have stated that the complaint alleges a contract for the sale of a house. However, it also alleges that' after entering the contract, they were led to believe by defendant’s agent that it would be safe to make improvements on the property and that they lost the improvements because the contract of sale was breached by a failure to convey. They claim a right to recover the cost of their labor and materials. Thus the complaint contains allegations of breach of contract, misrepresentation and unjust enrichment by improvements to real estate. Plaintiffs’ brief on appeal discloses that the theory relied on was an oral contract between plaintiffs and defendant’s sales representative that it would be safe for plaintiffs to enter on the land and make whatever improvements they wished. Plaintiffs contend that the representative had apparent authority to make such a contract.

We have carefully examined the evidence and discern no authority, apparent or otherwise, shown to have been possessed by the sales representative to enter into such a contract as that claimed by plaintiffs. The record is very clear that the representative expressly was without authority to execute a contract of sale of the property. That authority was expressly reserved to Herb Clarkson of the Tampa office by the written contract signed by plaintiffs. They stated they were aware of that provision in the contract. The evidence is undisputed that the contract to purchase the house alleged in the complaint was never executed by defendant. The complaint itself alleges the contract stated the sale was subject to the approval of Clarkson. The complaint further says that in spite of the statement in the contract requiring its approval by Clarkson, plaintiffs were assured by defendant’s agent that they could make improvements with safety and they did make improvements. The evidence of plaintiffs followed these allegations:

There was alleged only one contract between plaintiffs and defendant. Its existence was then nullified by proof that it required the approval of Clarkson. The assurances of safety to make improvements by the agent was not a contract. If plaintiffs’ testimony as to such assurance is true, it amounts only to a representation or opinion by the agent which plaintiffs acted upon to make improvements upon defendant’s property. The essence of the assurance was that the agent was sure that the contract would be approved by Clarkson, the sale consummated and the property become that of plaintiffs. There was no real authority in the agent to make such an assurance. It was directly opposed to the subjection stated on the face of the contract. An agent cannot negative by his own representation the express restriction of his authority known to the third party. Fulton v. Sword Medicine Co., 145 Ala. 331, 40 So. 393 (1906).

The evidence discloses no apparent authority. Apparent authority cannot come from the acts or declarations of the agent but arises from the action or declaration of the principal disclosed to the plaintiff. Wood v. Holiday Inns, Inc., 508 F.2d 167 (5th Cir. 1975); Automotive Acceptance Corp. v. Powell, 45 Ala.App. 596, 234 So.2d 593 (1970).

There being no evidence to support the existence of a contract between plaintiffs and defendant, either express or oral, there could be no recovery for a breach thereof. Therefore, defendant was due the affirmative charge.

Whether plaintiffs may have a right to compensation for the improvements under the equitable principle of enhancement of another’s property through fraud or mistake was not involved in the trial of this suit at law. Such action invokes the equity powers of the court and is not for a jury. Benedict v. Little, 288 Ala. 638, 264 So.2d 491 (1972). We review a case only upon the theory under which it was tried. Vulcraft, Inc. v. Wilbanks, 54 Ala.App. 393, 309 So.2d 105 (1975).

Defendant also raises the issue that the evidence fails to support the verdict which awarded $2,000 as damages. Defendant is correct. The measure of damages for a breach of contract is to restore the status quo. Jewell v. Jackson & Whitsitt Cotton Co., 331 So.2d 623 (Ala.1976); Hover v. Kirk, 56 Ala.App. 257, 321 So.2d 214 (1975). The loss of labor and materials shown to have gone into the improvements was $1,018.85. No further amounts were proved. The value of enhancement to the property was not shown. The amount of the verdict was excessive under the proof.

The question of what is to be done with the check for the $300 deposit which was refunded to plaintiffs but was introduced by them into the evidence is not an issue on appeal. The question is properly for the trial court.

REVERSED AND REMANDED.

BRADLEY and HOLMES, JJ., concur.