author: SHORES, Justice.

text:
    Fredrick William DUNSON, Individually and as Father and next friend of Tamika L. Dunson, a Minor v. FRIEDLANDER REALTY, a corporation. Fredrick William DUNSON, Individually and as Father and next friend of Fredricka Dunson, a Minor v. FRIEDLANDER REALTY, a corporation.
    77-744, 77-745.
    Supreme Court of Alabama.
    April 6, 1979.

      Richard F. Pate of Diamond, Lattof & Gardner, Mobile, for appellants.
    Leon G. Duke of Sintz, Pike, Campbell & Duke, Mobile, for appellee.
   SHORES, Justice.

The two cases involved in this appeal were consolidated by stipulation because they involve identical injuries and parties. The cases were filed by Fredrick W. Dun-son, individually and as father and next friend of his two minor daughters, against Friedlander Realty, a corporation, fictitious individuals designated John Doe I through John Doe V and fictitious parties designated X Company and Y Company.

Each complaint contains five separate claims for relief against the various defendants. In all counts, plaintiffs, while tenants of rental property located at 815 South Broad Street, Mobile, Alabama, sustained injuries when they consumed lead-based paint chips.

Count One alleges a landlord-tenant relationship between plaintiffs and defendants, Friedlander Realty, John Doe I — III, and alleges that these defendants were liable to the plaintiffs for injuries resulting to them from a hazardous, unsafe and dangerous defect in the premises, namely lead-based paint, which defect was known to these defendants at the time of the leasing and which they concealed from the plaintiffs.

Count Two alleges that the same defendants were aware of the defect; and they entered into a covenant to repair and remedy this condition but breached the agreement causing injuries to the minor children.

Count Three alleges that the same defendants knew of the presence of the lead-based paint and voluntarily undertook, through their agents or servants, to repair or correct the defect by employing John Doe IV and V . . to scrape and paint said dwelling . . and they negligently failed to remove the scrapings containing lead paint from the premises.”

Count Four attempts to state a claim against fictitious parties, X and Y Companies, for breach of warranties, express and implied. Such parties are alleged to be . in the business of manufacturing, testing and/or selling paint . . . .” and that they warranted the paint purchase by defendants, John Doe IV and V, for painting the dwelling to be fit for ordinary purposes; that this warranty was breached because “. .it failed to keep contact with certain paint on said dwelling that contained lead and further, that said paint failed to seal -properly the paint on said dwelling that contained lead . . . .” and “Plaintiff and his minor daughters] relied upon the skill and judgment of the said Defendants to select and furnish a suitable paint to seal the lead paint on said dwelling and to stop the chipping or peeling of the lead paint from said dwelling . . .”

Count Five simply incorporates the other four and seeks damages for medical expenses and loss of services of his minor children.

Both children are alleged to have lived in the house involved since their respective births, which means that the premises were rented by their father before the birth of either child.

Defendant Friedlander Realty filed a motion under ARCP 12(b)(6) to dismiss each of the complaints on the ground that it failed to state a claim against this defendant upon which relief can be granted. The trial court entered judgment in compliance with ARCP 54(b) and plaintiff appealed.

The only issue presented is whether the complaint states a claim upon which relief may be granted as to Friedlander Realty inasmuch as the judgment appealed from adjudicates only the claims asserted against it. Because that is so, we do not address the validity of the breach of warranty claim against the manufacturer or seller of the paint used to paint the dwelling.

We hold that Count One was properly dismissed. The general rule is that a landlord is not liable in tort for injuries suffered by a tenant, whether there be a covenant to repair or not unless the defect existed at the time of the letting and was known to him and which he concealed from the tenant. Bevis v. L & L Services, 360 So.2d 296 (Ala.1978); James & Sons, Inc. v. Breedlove, 347 So.2d 1330 (Ala.1977); Chambers v. Buettner, 295 Ala. 8, 321 So.2d 650 (1975); Hallock v. Smith, 207 Ala. 567, 93 So. 588 (1922). The allegations of Count One are that the existence of lead paint on the premises constituted a defect under the general rule; and that the defendant is liable because it concealed the defect. Restatement of the Law, Torts 2d, § 358 (1965), states the rule as follows:

“Undisclosed Dangerous Conditions Known to Lessor
“(1) A lessor of land who conceals or fails to disclose to his lessee any condition, whether natural or artificial, which involves unreasonable risk of physical harm to persons on the land, is subject to liability to the lessee and others upon the land with the consent of the lessee or his sub-lessee for physical harm caused by the condition after the lessee has taken possession, if
“(a) the lessee does not know or have reason to know of the condition or the risk involved, and
“(b) the lessor knows or has reason to know of the condition, and realizes or should realize the risk involved, and has reason to expect that the lessee will not discover the condition or realize the risk.”

Under the allegations of this count, should the landlord (even if it knew the lead-based paint was on the walls) have realized the risk involved or, to state the question in traditional tort language, was it reasonably foreseeable that the dangerous paint would chip and fall from the walls and be ingested by children? A landlord is expected to foresee only those dangers as would be foreseen by a reasonably prudent man under the same or similar circumstances. See W. Prosser, The Law of Torts, § 63, page 401 (4th ed. 1971); F. Harper & James, The Law of Torts, § 27.16, pages 1508-9 (1956).

Lead-based paint was commonly used in buildings constructed prior to World War II. Only in recent years has the danger connected with chipping lead-based paint been appreciated. See: Legislative History of the Lead-Based Paint Poisoning Prevention Act, Pub.L. No. 91-695, 91st Congress, 2d Sess. (1970), 3 U.S. Code, Cong. & Admin. News, p. 6130, et seq. That act was passed by the Congress to provide federal assistance to aid cities and communities to carry out programs to eliminate the cause of the disease.

We think it unreasonable to expect a landlord to foresee that children would eat and be injured by this substance. According to testimony presented to the Congress during its deliberation of the act mentioned above, a condition known as Pica (defined as a craving for and eating of unnatural substances such as chalk, ashes, bones, etc. generally occurring in instances of nutritional deficiency) generally accounts for lead poisoning. Under the allegations of this count, we hold that it was not reasonably foreseeable that these children would be injured by the paint on the premises rented to their father.

Under the law, a landlord is not an insurer of the safety of the premises. The law does not impose such a high duty. However, one can undertake a duty higher than that which the law imposes. By Counts Two and Three, the plaintiff alleges that Friedlander did just that. Count Two alleges that it covenanted and agreed to eliminate the hazardous condition and breached the agreement; Count Three alleges that, with knowledge of the hazardous condition, Friedlander voluntarily undertook to remedy the defect.

These are claims upon which relief may be granted if the plaintiff can prove the allegations. The burden of proof, of course, is upon the plaintiff to prove the existence of a contract and he must establish, by the evidence, the terms of the agreement. Madison Highlands Development Co. v. Hall, 283 Ala. 333, 216 So.2d 724 (1968). If he can show that the defendant agreed to eliminate the offending substance from the premises and breached that agreement, he can recover damages for breach of that agreement.

Friedlander says this count states no claim upon which relief can be granted because it fails to aver that the alleged contract was supported by consideration. It is alleged that the premises were rented on a month-to-month basis. It is also alleged that the tenant threatened to terminate the rental contract because of the hazardous condition; and that Friedlander then promised and agreed to remedy the dangerous defect or condition. In Adler v. Miller, 218 Ala. 674, 677, 120 So. 153, 154 (1928), this court said:

“As applied to the relation of landlord and tenant and liability for injury to the latter from defects in the premises, where there was an express agreement to repair, the case of Hart v. Coleman, 201 Ala. 345, 78 So. 201, L.R.A.1918E, 213, declares the rule of this court. In that case the holding was that, where the promise of a landlord to a tenant by the month to repair the porch was under the latter’s threat to move unless such repairs were made, such promise was founded on a sufficient consideration; and the landlord, being notified or observing that the floor of considerable height was rotten in front of the door, failed after such promise to repair, and the tenant receiving injury by a fall through such insufficient and unsafe flooring was permitted to recover damages in an action ex contractu.
It is equally well-settled that:
. where the lessor, under no duty to repair, voluntarily undertakes so to do, he is liable for injuries proximately caused by negligence in so making repairs as to render the premises dangerous to life or limb of those rightfully occupying the premises. . . . ” Faucett v. Provident Mut. Life Ins. Co. of Philadelphia, 244 Ala. 308, 312, 13 So.2d 182, 186 (1943). This is the theory of the plaintiff’s claim
under Count Three.

We hold that the trial court erred in granting Friedlander’s motion to dismiss Counts Two, Three and Five where applicable. Count One was properly dismissed. We express no opinion as to Count Four, it not being before us on this appeal from an ARCP 54(b) judgment. In so holding, we restate that, as against a motion to dismiss under ARCP 12(b)(6), the complaint must be construed in the light most favorable to the plaintiff and its allegations taken as true. Wright & Miller, Federal Practice and Procedure: Civil § 1357.

It is never proper to dismiss a complaint if • it contains even a generalized statement of facts which will support a claim for relief under ARCP 8.

The Supreme Court of the United States in Conley v. Gibson, 355 U.S. 41, 45, 46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957), stated the rule which we follow:

“. . .In appraising the sufficiency of the complaint we follow, of course, the accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. . . . ”

AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

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

BEATTY, J., concurs in result.


source: Caselaw Access Project

author: ALMON, Justice.

license: Public Domain

text:
    Bobby Joe PUGH v. KAISER ALUMINUM & CHEMICAL SALES, INC.
    No. 77-367.
    Supreme Court of Alabama.
    April 20, 1979.

      Irvin Grodsky, Mobile, for appellant.
    Thomas G. Greaves, Jr., and William C. Tidwell, III, Mobile, for appellee.
   ALMON, Justice.

Pugh appeals from a judgment of the Circuit Court granting the defendant’s motion to dismiss his complaint. We reverse.

Pugh was an employee of Kaiser Aluminum and Chemical Sales, Inc. He sustained a knee injury on the job which eventually necessitated his prolonged absence from work. Kaiser’s employees were covered by a Company Disability Plan which provided inter alia that disabled employees were entitled to receive their full salary for a certain period of their disability and thereafter 60% of their salary for a period of up to six months. These disability payments were to continue until either the employee returned to work or six months elapsed from the commencement of the disability. Pugh received his disability payments pursuant to the Kaiser plan for approximately two months.

Kaiser urged Pugh to return to work ostensibly because his department was short-handed;’ however, he was terminated four days after he returned to work.

Pugh filed this complaint alleging that Kaiser fraudulently and deceitfully induced him to return to work; that under the terms of the Company Disability Plan, his return to work automatically disqualified him from receiving further disability benefits; and that if he had completed his recuperation, he would have been entitled to another four months of disability benefits. Pugh did not assert that his termination was wrongful, nor did he seek workmen’s compensation. His sole claim is grounded in fraud and the propriety of the trial court’s dismissal is the only issue presented on appeal.

The briefs of the parties seem to indicate that the trial judge granted the motion to dismiss for failure to state a claim for relief because the plaintiff could not prove that Kaiser’s misrepresentations actually caused him legal damage. It is Pugh’s contention that although his employment was terminable at will, Kaiser’s misrepresentations induced action on his part which resulted in a forfeiture of his disability benefits. Kaiser responds with the argument that: 1) if Pugh’s right to receive disability benefits was not vested, then the right to receive the' disability benefits was, like his employment, terminable at will, or 2) if Pugh had a vested right to receive disability benefits, then he must recover them in a breach of contract action instead of a tort action for fraud and deceit.

In actions for fraud, it is necessary that there be a false representation concerning a material existing fact. The plaintiff must rely on that false representation and must be damaged as a proximate result. International Resorts, Inc. v. Lambert, 350 So.2d 391 (Ala.1977). See Code 1975, § 6-5-101.

Pugh has alleged that Kaiser falsely represented a material existing fact, i. e., that his department was short-handed and that his immediate return was essential to continued operations. Pugh has alleged that he relied on these false representations by returning to work before he had completely recovered from his physical disability. Finally Pugh has alleged that he has been damaged by his reliance to the extent that his premature return to work rendered him ineligible to receive an additional four and one-half months of disability benefits. The essence of Pugh’s complaint is that Kaiser fraudulently induced him to voluntarily surrender an unqualified right to receive disability benefits. This Court has recently approved an action for fraudulent misrepresentation where the plaintiff proved that the defendant induced him to forego a business opportunity, Cities Serv. Oil Co. v. Griffin, 357 So.2d 333 (Ala.1978). Thus, it stands to reason that where one is fraudulently induced to surrender an absolute right instead of a business opportunity, then that person may claim damages in an action for fraud.

We agree with the appellant that the terminability vel non of these benefits i$ immaterial with respect to the allegations in the complaint. The complaint addresses Kaiser’s alleged fraud in inducing the automatic forfeiture of Pugh’s benefits. According to the allegations of the complaint the forfeiture occurred when he returned to work instead of when he was terminated.

For the foregoing reasons, the judgment of the trial court dismissing the complaint must be reversed and remanded for further proceedings.

REVERSED AND REMANDED.

BLOODWORTH, FAULKNER, JONES and EMBRY, JJ., concur.


author: MADDOX, Justice.

text:
    Rosalie GOTLIEB and Ralph Blach, III v. Abe KLOTZMAN, as Trustee Under the Last Wills and Testaments of Rosa Klotzman Fabian and Isaac Louis Fabian, respectively.
    77-630.
    Supreme Court of Alabama.
    April 20, 1979.
    James A. Harris, Jr. and Thomas H. Brown, of Sirote, Permutt, Friend, Friedman, Held & Apolinsky, Birmingham, for appellants.

      Edward 0. Conerly, Birmingham, for ap-pellees, Cathy and Robert Blach.
   MADDOX, Justice.

This appeal lies from an action to determine if the term “descendants” as used in the testamentary trust created by the wills of Isaac and Rosa Fabian includes the two adopted children of their nephew, Ivan Blach. The trial court ruled that “descendants” or “surviving descendants” as used in the testamentary trusts did include the adopted children, Cathy and Robert, and concluded that the adopted children were entitled to one-half of the trust estate. We affirm.

The undisputed facts are, as follows:

In 1952, Isaac and Rosa Fabian executed wills that created a testamentary trust. This testamentary trust provided that the trust income would be paid either to the surviving spouse, or to Abe Klotzman, for life, and then the trust would terminate and the estate would go to the three named nephews of Isaac and Rosa Fabian. The named nephews were Colman, Ralph and Ivan Blach. The wills further provided that if a nephew died before the life-income beneficiary, then that nephew’s share would go to his descendants. The wills also provided that if any one or more of the nephews died without leaving “descendants” that his share would go to the “descendants” of the other nephew(s).

At the time of the execution of the wills neither Ivan nor Colman had any natural or adopted children; Ralph had two natural children Rosalie and Ralph Blach, III. In 1957, Ivan Blach adopted Cathy Blach; in 1960, he adopted Robert Blach.

Isaac Fabian died in November 1962; Rosa Fabian died in January 1963. Ivan, the last of the three nephews, died in 1965. Abe Klotzman, the life-income beneficiary, died on April 23, 1977.

The pertinent provision of Rosa Fabian’s will is, as follows (Isaac Fabian’s will contained the same provisions with regard to the trust and distribution upon termination of the trust.):

“The trust created under this will shall continue until the death of my said husband, Isaac Louis Fabian, and my said brother, Abe Klotzman. Upon the termination of this trust, the trustees shall transfer and pay over two-thirds of said trust estate as follows: One-third to Ralph C. Blach and one-third to Ivan K. Blach, free of trust, and if either of said beneficiaries should be dead, his share shall be transferred and paid over to his descendants share and share alike per stirpes; the trustees shall continue to hold the remaining one-third of said trust estate in trust for my nephew, Colman Blach, until he shall reach fifty (50) years of age, during which time the trustees or their successors shall pay to him the income from said one-third share of the trust estate annually, or at such other time as the trustees may deem proper. Upon Colman Blach arriving at the age of Fifty (50) years, the trustees shall transfer to him his said one-third share of the trust estate free from trust; in the event that Colman Blach should die before he reaches the age of fifty (50) years, leaving descendants, then said one-third part of said trust estate shall be transferred and paid over to such descendants in equal shares, free from trust, and if said Colman Blach should die before reaching the age of fifty (50) years without leaving any descendants, then the trustees shall transfer and pay over said one-third share in equal shares to Ralph C. Blach and Ivan K. Blach, brothers of said Colman Blach, and if either of said brothers then be deceased leaving descendants, then the share which would have gone to such deceased brother, shall be transferred and paid over to his descendants in equal shares per stirpes, and if such deceased brother leaves no descendants then surviving, the share which such deceased brother would have taken if living shall go to the other brother, if living, or to his descendants if he then be dead.” (Emphasis supplied.)

The appellants contend that prior to this Court’s decisions in McCaleb v. Brown, 344 So.2d 485 (Ala.1977), Zimmerman v. First National Bank of Birmingham, 348 So.2d 1359 (Ala.1977), and Southside Baptist Church v. Drennen, 362 So.2d 854 (Ala. 1978), that the law of construction was that descriptive class terms, such as “children,” “issue,” and “descendants,” when used in a testamentary instrument, presumptively did not include adopted children. In support of this contention, they cite Whitfield v. Matthews, 334 So.2d 876 (Ala.1976) (and cases cited therein); Peck v. Green, 266 Ala. 321, 96 So.2d 169 (1957); Gamble v. Cloud, 263 Ala. 336, 82 So.2d 526 (1955); Russell v. Russell, 84 Ala. 48, 3 So. 900 (1888). Thus, they argue, the state of the law at the time of the execution of the wills (1952) and up until the testators’ deaths (1962, 1963) was such that adopted children were not included within the class of persons described in their wills as “descendants.” The appellants further argue that McCaleb v. Brown, Zimmerman v. First National Bank of Birmingham and Southside Baptist Church v. Drennen should be applied prospectively only.

In 1931, a statute was passed which allowed adopted children to inherit property by and through their adoptive parents. Act No. 405, Acts of Alabama, 1931, p. 504. In McCaleb v. Brown, this Court stated that adopted children are “presumptively within the designation of the adopter’s descendants unless the context or circumstances clearly establish a contrary intention.” 344 So.2d at 489. In view of the fact that scriveners were put on notice after 1931 that adopted children would be treated the same as natural children, and in view of the public policy extant at the time the wills were drawn and in the present case, by looking only at the wording of the wills, we determine that the testators, by using the term “descendants,” intended to include the two adopted children.

The appellants contend that the trial court was in error in refusing to admit evidence as to “context and circumstances” which “clearly established a contrary intention.” The evidence refused was (1) Rosa Fabian executed a trust agreement in 1960, which specifically included adopted children in its provisions; (2) The scrivener, at the time of the execution of the will, acted under the assumption that adopted children were not included within the term “descendants”; (3) In 1977, the life-income beneficiary, Abe Klotzman, altered the disposition of his own personal estate so as to equalize the distribution among the four children; and (4) In 1977, a meeting held between a member of the Trustee Bank, the life-income beneficiary and the scrivener in which the conclusion was reached that the adopted children would not take as “descendants” under the testamentary trust.

It should first of all be noted that the court will not look beyond the “four corners of the instrument” unless latent ambiguities exist. Meglemry v. Meglemry, 222 Ala. 229, 131 So. 906 (1931); Achelis v. Musgrove, 212 Ala. 47, 101 So. 670 (1924).

In cases such as this where a latent ambiguity arises, the following rule regarding the admissibility of parol evidence is applicable:

“Where a will is susceptible of construction, the decisions are uniform to the effect that the court, by way of parol evidence, will put itself, as far as possible, in the place of the testator, and in so doing, take into consideration the circumstances surrounding testator at the time he prepared and executed the will. . . ” (Emphasis supplied.) Schowalter v. Schowalter, 221 Ala. 364, 128 So. 458 (1930).

The evidence attempted to be introduced in the trial court did not in any way relate to the intent of the testators at the time of the making of the will; thus the trial judge was correct in refusing to admit the evidence. The only evidence which relates to the time of the making of the will is that of the scrivener’s interpretation of the meaning of the term based upon existing case law, but his testimony is clear in stating that the issue of whether adopted children would inherit was not discussed by any party during the drafting and execution of the wills. Rather than indicating an intent to exclude the two adopted children, the facts are clear that both children were adopted while the testators were still alive. As stated in McCaleb v. Brown, had the testators desired to exclude the adopted children it could have easily been done “with a word or two.” 344 So.2d at 488.

The appellants further argue that Isaac and Rosa Fabian made a class gift to the “descendants” of their nephews. They contend that the class closed in 1965, at the death of the last surviving nephew and at that time the “descendants” obtained a-vested, alienable, perfected and indefeasible estate. They argue that in 1964, the term “descendants” did not include adopted children and therefore to deprive the natural children of any of their property interest would be a taking of property without due process of law.

We reject this argument. This Court has interpreted the public policy of this state to be that adopted children are treated the same as natural children, unless a desire to exclude them is clearly indicated by the testator.

The judgment of the trial court is affirmed.

AFFIRMED.

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

BEATTY, J., concurs in the result.


author: BRADLEY, Judge.

text:
    Mr. and Mrs. Earl NEUMANN v. STATE FARM FIRE & CASUALTY COMPANY.
    Civ. 1382.
    Court of Civil Appeals of Alabama.
    April 5, 1978.
    Rehearing Denied May 10, 1978.
    Reid B. Barnes, III, Birmingham, for appellants.
    Charles F. Carr of Rives, Peterson, Pet-tus, Conway, Elliott & Small, Birmingham, for appellee.
   BRADLEY, Judge.

This appeal is the result of an order by the Circuit Court of Jefferson County granting a partial summary judgment in favor of appellee — State Farm Fire and Casualty Company. We affirm.

The appellants, Mr. and Mrs. Neumann, initiated an action against their insurance carrier, State Farm Fire and Casualty, to recover insurance proceeds for the loss of personal property destroyed by fire. The property perished while it was being transported by moving van from the couple’s former residence to their new home in Huntsville, Alabama. Prior to the date of the loss, the Neumanns had obtained insur-anee coverage with State Farm Fire and Casualty. Under the terms of this policy the unscheduled personal property of Mr. and Mrs. Neumann was insured in the amount of $8,000, provided the property was destroyed by fire on the insureds’ premises. Another provision in the policy afforded coverage for unscheduled personal property while away from the premises and the extent of this coverage was limited to “an additional amount of insurance equal to 10% of the amount specified by Coverage B [coverage of personal property while on the premises] but in no event less than $1,000.”

Mr. and Mrs. Neumann contend that under this additional insurance provision they are entitled to recover $9,000. This figure represents $8,000 for the total loss of unscheduled personal property plus an additional $1,000 (or 10% of $8,000) based on the loss coverage proyided for the property because it was destroyed while away from the premises of the insureds.

The circuit court rejected the Neumanns’ contention and found for the insurer. In granting a partial summary judgment on the insurer’s motion to dismiss the suit, the circuit court held that State Farm’s liability on the policy was limited to a sum equal to ten percent of the amount specified for coverage of personal property destroyed while away from the insureds’ premises provided, however, that this coverage was not less than $1,000.

In construing the terms of the controverted policy, the circuit court relied on Catron v. State Farm Fire & Casualty Insurance Co., 420 F.2d 487 (6th Cir. 1970). The federal appeals court in Catron construed an insurance clause identical to the one in question here; likewise, the court considered an interpretation of the clause similar to the interpretation relied upon by the Neumanns in the instant case. The arguments of the insured were rejected in Catron and the court concluded that the policy coverage was limited to the damage which occurred while the property was away from the premises of the insured. Moreover, the court held that the insured was not entitled to the additional proceeds provided for under the provision dealing with coverage while the property remained on the insured’s premises. We believe this to be a sound decision.

Our study of the insurance policy convinces us that the circuit court correctly interpreted its terms.

The language of the policy providing an “additional amount of insurance” did not entitle the Neumanns to receive the $8,000 which was recoverable in the event of on-premises damages plus the amount which was recoverable if the property was destroyed after it had left the property of the insureds. Instead, the policy’s terms merely indicated that in addition to insurance for on-premises damage, the policy also provided insurance coverage for damages occurring off-premises. There is no dispute in this case that the Neumanns’ furniture was destroyed after it had been removed from their property. Accordingly, the only portion of the policy which they were entitled to recover under was that portion which dealt with losses occurring off-premises. Coverage under the off-premises provision was limited to $1,000. The trial court held that the Neumanns’ potential recovery was limited to that amount and the court’s holding was correct. Consequently, the court did not err in granting a partial summary judgment in favor of State Farm Fire and Casualty.

AFFIRMED.

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


author: JONES, Justice. BLOODWORTH, Justice.

text:
    In re Mr. and Mrs. Earl NEUMANN v. STATE FARM FIRE & CASUALTY COMPANY. Ex parte Mr. and Mrs. Earl Neumann.
    77-524.
    Supreme Court of Alabama.
    Jan. 5, 1979.
    Rehearing Denied March 9, 1979.
    Reid B. Barnes, III, Birmingham, for petitioners.
    Duncan Y. Manley and Charles F. Carr of Rives, Peterson, Pettus, Conway, Elliott & Small, Birmingham, for respondent.
   JONES, Justice.

We granted certiorari to review a decision of the Court of Civil Appeals affirming the trial Court, which held that Plaintiffs/Appellants were not entitled to recover under a Homeowner’s Policy from Defendant/Appellee, State'Farm Fire & Casualty Company, for the loss of their personal property. At the time of its total destruction, the “unscheduled personal property [was in transit] away from the premises.” We reverse and remand.

The pertinent policy language, under the heading, “Description of Property and Interests Covered”, reads:

“COVERAGE B — UNSCHEDULED PERSONAL PROPERTY [$8,000],
“This policy covers unscheduled personal property usual or incidental to the occupancy of the premises as a dwelling and owned or used by an insured, while on the described premises
“This coverage also includes such unscheduled personal property while elsewhere than on the described premises, anywhere in the world:
“(1) owned or used by an Insured .
“(2) . . .
“(3) but the limit of this Company’s liability for the unscheduled personal property away from the premises shall be an additional amount of insurance EQUAL TO 10% of the amount specified for Coverage B, but in no event LESS THAN $1,000.”

Also, under the heading, “Supplementary Coverages,” other types of coverage provisions read:

“This policy covers [additions and alterations to buildings] FOR AN AMOUNT NOT EXCEEDING 10% OF THE LIMIT OF LIABILITY APPLICABLE TO COVERAGE B.
“This policy also covers [credit cards of the insureds] for an amount NOT TO EXCEED $1,000:”

The policy provides coverage for unscheduled personal property in the amount of $8,000, if destroyed on the insureds’ premises. “This coverage also includes” such property while away from the insureds’ premises. The amount of this coverage is “an additional amount of insurance EQUAL TO 10% of the amount specified for [unscheduled personal property on the premises], but in no event LESS THAN $1,000.”

Appellants contend that under this “additional amount of insurance” provision, they are entitled to recover a total of $9,000, representing $8,000 for the total loss of the unscheduled personal property plus 10% (but in no event less than $1,000), because it was destroyed while away from the insureds’ premises.

The trial Court construed this provision of the policy adversely to the insureds and awarded judgment for $1,000, the minimum amount allowable under the policy for damage to unscheduled personal property while away from the insureds’ premises. The Court of Civil Appeals affirmed, citing Catron v. State Farm Fire & Casualty Insurance Co., 420 F.2d 487 (6th Cir. 1970).

While the Catron Court affirmed the district court’s construction of the provisions in issue adversely to the insureds, the opinion is totally void of any rationale for its holding. Indeed, the opinion is a mere Per Curiam summary affirmance.

The Court of Civil Appeals speculates on Catron’s rationale as follows:

“. . the court concluded that the policy coverage was limited to the damage which occurred while the property was away from the premises of the insured. Moreover, the court held that the insured was not entitled to the additional proceeds provided for under the provision dealing with coverage while the property remained on the insured’s premises.”

Later in its opinion, the Court of Civil Appeals opined:

“The language of the policy providing an ‘additional amount of insurance’ did not entitle the Neumanns to receive the $8,000 which was recoverable in the event of on-premises damages plus the amount which was recoverable if the property was destroyed after it had left the property of the insureds . . . Accordingly, [because the loss occurred off-premises] the only portion of the policy which they were entitled to recover under was that portion which dealt with losses occurring off-premises [being] limited to $1,000.”

The problem with this approach is that it assumes as a legal premise the very disposi-tive issue presented for review. We quote directly from Appellee’s brief:

“[Insurer] submits that the issue before this Court is the same as that asserted by the [insureds]:
“ ‘The issue presented to this Court is whether the holding of the Circuit Court that the limit of liability of the Defendant under its policy of insurance is limited to $1,000.00 for personal property “in transit” is correct.’ ”

Admittedly, given the fact that coverage for on-premises loss is $8,000 and coverage for off-premises loss is $1,000, and that the loss occurred off-premises, only one conclusion can follow: The insureds are limited to a $1,000 recovery. But, as we have seen, counsel for each of the parties are in agreement that the question we must answer is: What amount of coverage is provided by the policy for loss of unscheduled personal property away from the premises? (The actual amount of the loss exceeds $9,000.)

Having observed that Catron is a summary affirmance and that the Court of Civil Appeals did not directly address the issue as we perceive it, we hasten to point out that this does not of itself compel the conclusion that the result of either opinion is incorrect. Rather, it means that we are not afforded the luxury of critiquing the rationale used by other appellate courts in construing the pivotal provisions of this policy. Thus, having no other case in point, we must now apply our own settled rules of contract construction to the verbiage of the policy and determine whether the insurer is liable for $1,000, as it contends, or $9,000, as the insureds contend.

Having been favored with excellent briefs, we find it appropriate to begin our analysis by examining the respective contentions of the parties. The central thrust of the insureds’ contention is summed up in these passages from their brief:

“[T]he policy is worded in such a manner as to leave no logical doubt that the limit of the coverage for property damaged while away from the premises is to be an ‘additional’ amount, in ‘addition’ to the amount stated on the first page of the policy for Coverage B, $8,000.00 (which ‘also includes’ property located away from the premises).”
“ . . . [T]he phrase ‘an additional amount of insurance’ means what it says and that full coverage [$8,000 plus $1,000] is due under the facts of this case. At the very least, the policy has been written so ‘as to reasonably import’ full liability. Even if there is an ambiguity, the insured must still prevail, especially in a case where the language in question involves ‘the extent or fact of coverage’ ”, citing Georgia Casualty & Surety Company v. Universal Underwriters Insurance Company, 534 F.2d 1108 (5th Cir. 1976); Tyler v. Insurance Company of North America, Inc., 331 So.2d 641 (Ala.1976); and Southern Ins. Co. v. Wilson, 214 Ala. 373, 108 So. 5 (1926).

The insurer argues:

“The . . . policy provides fire insurance protection for Unscheduled Personal Property, with the policy limits for such coverage set [on the Declarations Page] at $8,000.00 . . . Since the Declarations Page does not define the term ‘unscheduled personal property,’ the parties must refer to page 3 of the policy which gives a ‘description of Property and Interest Covered’ in order to ascertain the extent of coverage provided for the loss of ‘unscheduled personal property.’ .
“ . . . The limit of liability for unscheduled personal property away from the premises is clearly and unequivocally set out in clause (3) of the second paragraph under ‘Coverage B — Unscheduled Personal Property.’ . . . Since ten percent of the amount provided in the Declarations Page of Coverage B is less than $1,000.00 (i. e., $800.00) petitioner would be entitled to recover, if at all, a maximum of $1,000.00.
“Two types of personal property are provided for in Coverage B. The first paragraph delineates one category thereof to be ‘unscheduled personal property usual or incidental to the occupancy of the premises as a dwelling and owned or used by an Insured, while on the described premises . . . ’ The second paragraph provides coverage for unscheduled personal property elsewhere than on the described premises, but as noted above, clause (3) thereof limits the amount of coverage available therefor to, in this case, $1,000.00.
“Respondents would not take issue with Petitioners’ definitions of the meaning of the term ‘additional’ as used within clause (3). . . . That is, Respondents agree that they offered their insureds an ‘extra’ amount of insurance for property away from the premises, but at a limited exposure. If the ‘extra’ protection afforded by the second paragraph under Coverage B had not been included, Petitioners would have had no coverage whatsoever for their loss in the instant case.”

In sum, then, the insureds contend that the words “an additional amount” means an amount in addition to some base figure; i. e., “additional” is an adjective modifying the word “amount.” The phrase “amount of insurance” necessarily refers to the $8,000 specified in the original declaration of coverage. Thus, the “additional amount” is 10% (but not less than $1,000) of $8,000, totaling $9,000 for the loss incurred.

On the other hand, the insurer says that “additional amount of insurance” means additional coverage; i. e., in addition to $8,000 coverage for on-premises loss, the policy also provides coverage for off-premises loss in an amount equal to 10% of $8,000, but not less than $1,000. Thus, its liability for this “in transit” loss is limited to $1,000.

At first blush (primarily because of the introductory phrase of subparagraph (3)— “but the limit of . liability”), we were inclined to accept the interpretation urged by the insurer. Ordinarily, this introductory language signals an expression of restriction or reduction from an amount of coverage previously provided. Thus, from a reading of the first line of subpara-graph (3), it is anticipated that the balance of the sentence (i. e., the words that follow the verb “shall be”) will contain language consistent with the “less than ” notion of its beginning phrase.

Indeed, there is nothing in this introductory phrase to clue the reader that what follows will provide more coverage for an off-premises loss than for an on-premises loss. But the ultimate test is what language does in fact follow, and not what the introductory phrase indicates will follow to complete the sentence. In other words, the test is not what the sentence would say if it read, “But the limit of liability shall be an amount . . . equal to 10% . ”; rather, what does it say as it actually appears: “ . . . shall be an additional amount . . .

The word “additional” is not a word of limitation. It means something added to, more, or extra. In its common understanding, it does not mean less than, a part of a whole, or a reduction of something greater. Appellee contends that the use of the word “additional” is necessary to afford any coverage at all for an off-premises loss. But this contention is not borne out by the policy. The second paragraph under Coverage B, beginning with the words, “This coverage also includes”, provides the coverage. Subparagraph (3) is not a “coverage” but an “amount of coverage” provision.

The insurer summarizes its position:

“ . .To paraphrase the instant policy, the unscheduled personal property coverage ‘includes’ ‘on-premises’ protection and a more limited ‘off-premises’ protection. Together, the two paragraphs set forth the total package of protection provided under Coverage B. “ . . . under the language of these provisions, it cannot be assumed that by qualifying under one paragraph, the insured automatically qualifies for coverage under the other paragraph.”

The effect of this argument is that the word “additional” should not be so interpreted as to defeat the clear and obvious “pattern” or “structure” of the coverage as expressed in the overall policy provisions. Here, again, our initial impression favored this approach. But, as our pari materia rule of construction admonishes, we have looked to the entire contract (insurance policy) in an effort to seek out and compare similar “limit of liability” provisions in other coverage contexts.

We have found two such provisions which are set out in the quoted portion of the policy above. Under “Supplementary Coverages,” paragraph 2, the coverage for certain loss to additions and alterations to non-owned premises is “for an amount not exceeding 10% of the limit of liability applicable to Coverage B.” Under Paragraph 5 of this same heading, the policy covers loss through forgery of credit cards “for an amount not to exceed $1,000.”

The adroitness of the drafters in leaving no possible room for misinterpretation as to the exact amount of coverage in either of these two separate provisions convinces us that the same drafters used the word “additional” in the subject provision as a word of art — intending specifically to increase the maximum coverage for off-premises loss to 10% above that provided for on-premises loss. To have intended a contrary result, this “amount of coverage” provision (sub-paragraph (3)) need only to have omitted the word “additional.”

Because of our conclusion that the drafters of the policy inserted the word “additional” as a word of art, intending to add to, rather than to reduce, the coverage for the specified loss, we find it unnecessary, and, indeed, inappropriate, to invoke the “ambiguity” rule. As this Court stated in Canal Insurance Company v. Stidham, 281 Ala. 493, 205 So.2d 516 (1967):

“When the verbiage of an insurance contract leaves no doubt of the intention of the parties, the rule that the contract, if ambiguous, must be construed favorably to the insured, does not apply.”

See also, Billups v. Ala. Farm Bureau Mut. Cas. Ins. Co., 352 So.2d 1097 (Ala.1977) (Ambiguity will not be inserted by strained and twisted reasoning into insurance contracts where such ambiguities are non-existent). For this Court to hold otherwise would be to the discredit of discerning craftsmen in their painstaking draftsmanship of the document in question.

REVERSED AND REMANDED.

FAULKNER, J., concurs.

TORBERT, C. J., and SHORES, and BEATTY, JJ., concur in the result.

BLOODWORTH, MADDOX, ALMON and EMBRY, JJ., dissent.

BLOODWORTH, Justice.

(Dissenting.)

I would affirm the Court of Civil Appeals.

MADDOX, ALMON and EMBRY, JJ., concur.

      . The policy does contain further references to Coverage B. Under “Supplementary Coverages,” appears: “Property in transit shall be subject to the limit of liability for unscheduled personal property away from the premises.” Except to negate more explicit coverage provisions for “in transit” loss to personal property, this language is surplusage and contributes nothing to the task at hand — the interpretation of the phrase, “an additional amount of insurance” in subparagraph (3) above. One other reference appears in the quoted portion of the policy and is discussed in the latter part of the opinion; and another reference to Coverage B appears under the heading, “Automatic Removal” — not here applicable.

      . These latter two provisions, under “Supplementary Coverages,” have no direct bearing oh the loss in question, but we include them here because of our later reference to these provisions by way of analogy for analytical purposes.

      . We have not ignored two other appellate decisions cited by Appellee: Olguin v. Allstate Insurance Co., 71 Wis.2d 160, 237 N.W.2d 694 (1976) and Kahane v. American Motorists Insurance Co., 65 Misc.2d 1065, 319 N.Y.S.2d 882 (Civ.Ct.1971). The Oiguin Court held: “[The pivotal] clause provides for a limit of liability ‘equal to 10 percent of the amount specified for Coverage C, but in no event less than $1,000.’ ” The Kahane Court ruled that the “additional coverage” provision for loss of non-premises personal property limited recovery to $1,000. Neither case furnishes any basis for the interpretation of the phrase “additional amount of insurance” — the crucial language in the instant case; and neither case involves an “in transit” loss.

      . The Neumanns, through counsel, also insist that a significant difference between their policy and the policy in Catron is that here the policy verbiage states, “This coverage also includes . . . ” while the Catron verbiage states, “This policy also covers . . . .” Although counsel for the insurer refutes any material difference, he admits that Appellants’ counsel is factually correct.
      We have not been cited by either counsel to the source of their information concerning the contents of the Catron policy. Perhaps resourceful counsel have examined the court records in Catron, for we note that Appellants’ brief quotes at length from the policy in Catron and Appellee’s brief acknowledges the factual variances pointed out by Appellant. Because we perceive no significant distinction in the legal effect between the verbiage of the instant policy and the alleged verbiage in the Catron policy, we have not pursued further research to ascertain the accuracy of the alleged language in the Catron policy. In other words, assuming the variance in language as claimed, we reject this portion of Appellants’ contention.

      . See Miller v. Liberty National Life Insurance Co., 243 Ala. 250, 9 So.2d 132 (1942).


text:
    Mr. and Mrs. Earl NEUMANN v. STATE FARM FIRE & CASUALTY COMPANY.
    Civ. 1382.
    Court of Civil Appeals of Alabama.
    April 4, 1979.
   BRADLEY, Judge.

On original submission to this court the trial court’s judgment granting a partial summary judgment to the appellee-insurer was affirmed. The effect of our decision was to limit the liability of the insurer under the policy herein involved to $1,000 for off-premises loss of personal property.

On certiorari the Alabama Supreme Court 369 So.2d 803 reversed the judgment of this court and decided that the maximum liability of appellee-insurer was $9,000. Accordingly, the judgment of the trial court is reversed and the cause remanded to that court for further proceedings as mandated by the decision of the supreme court.

REVERSED AND REMANDED.

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


author: HOLMES, Judge. HOLMES, Judge.

text:
    FORD LIFE INSURANCE COMPANY, INC., a corporation, v. J. J. SMITH.
    Civ. 1626.
    Court of Civil Appeals of Alabama.
    Feb. 7, 1979.
    Rehearing Denied March 7, 1979.
    Jonathan E. Lyerly, Birmingham, for appellant.

      No brief filed for appellee.
   HOLMES, Judge.

This is an action on an insurance policy.

The defendant appeals contending the verdict is not supported by the evidence. We affirm.

Viewing the record with the attendant presumption of correctness, we find the following: Plaintiff is fifty-one years of age and has a history of heart disorders. He has not been employed since January, 1975.

In 1974, plaintiff purchased a motor vehicle which he financed with Ford Motor Credit Company (Ford Credit). At the time, plaintiff also purchased a contract of life and disability insurance from the defendant in the amount of the auto mortgage held by Ford Credit.

After making approximately ten monthly payments on the vehicle, plaintiff, in January, 1975, was hospitalized for two weeks due to a lower heart blockage. Prior to this hospitalization, plaintiff, in 1973, had undergone open heart surgery. After his discharge from the hospital in January, 1975, plaintiff consulted a physician, Dr. Phillip Watkins. Dr. Watkins treated plaintiff until October, 1976, at which time plaintiff terminated the relationship. Plaintiff has been unemployed since his last hospitalization and has made no further payments to Ford Credit.

Defendant, upon notification of plaintiff’s disability, made three monthly payments to Ford Credit. Defendant, however, denied further liability apparently because plaintiff’s physician signed insurance disability statements which indicated plaintiff’s total disability terminated in April, 1975.

The record further reveals that when defendant ceased making plaintiff’s monthly payments to Ford Credit, Ford Credit repossessed the vehicle and instituted an action for the balance due under its financing contract. Plaintiff in turn asserted a third party action against the defendant alleging defendant breached its duty to make payments to Ford Credit as required under the disability terms of the insurance policy. After a jury verdict and resulting judgment for plaintiff and a denial of a motion for judgment notwithstanding the verdict or a new trial, defendant appealed.

Defendant, in a well reasoned brief, maintains that it is liable to plaintiff under the terms of the disability policy only where plaintiff is disabled and because there was no evidence at trial that plaintiff was disabled after April, 1975, the jury’s verdict was plainly erroneous. Specifically, defendant contends that the only evidence on the issue of plaintiff’s disability was the uncon-troverted testimony of plaintiff’s physician who stated that plaintiff was not disabled after April, 1975. Defendant further argues that because this expert testimony was uncontroverted, the jury was not at liberty to disregard it as it apparently did. We do not agree.

At the outset we observe that jury verdicts are presumed correct and this presumption is further strengthened when the trial court, as here, refuses to grant a new trial on the ground that the verdict is against the weight of the evidence. Walker v. Cardwell, Ala., 348 So.2d 1049 (1977); Hogan v. Alabama Power Co., Ala.Civ.App., 351 So.2d 1378, cert. denied, Ex parte Hogan, Ala., 351 So.2d 1388 (1977). On appeal, the appellate court must review the tendencies of the evidence most favorable to the prevailing party allowing such inferences as the jury was free to draw. Walker, supra.

It is well settled in Alabama that the opinion testimony of an expert witness is not binding on the jury unless (1) such testimony concerns a subject which is exclusively within the knowledge of experts and (2) the testimony is uncontroverted. Dyer v. Traeger, Ala., 357 So.2d 328 (1978). As discussed below, the expert testimony in this case was not on a subject exclusively within the knowledge of experts and, further, our review of the record indicates that it was controverted.

It is rudimentary that if the matter at issue is not solely within the knowledge of experts, then a lay witness’s testimony on the subject is competent for the jury’s consideration. For example, and dis-positive of the instant issue, it has long been held in Alabama that, inasmuch as a person’s inability to do work is not a matter solely within an expert’s knowledge, a lay witness may testify to his inability to work. Prescott v. Martin, Ala., 331 So.2d 240 (1976); St. Louis & S F R Co. v. Savage, 163 Ala. 55, 50 So. 113 (1909). See also Gamble, McElroy’s Alabama Evidence § 128.10(4) (3rd ed. 1977). Where, as here, the lay witness so testifies, it is within the province of the jury to weigh his testimony against that of the expert’s opinion and the jury is not bound solely by the expert’s testimony.

The record in this instance reveals that while plaintiff’s evidence on his inability to work due to a disability is less than overwhelming, there is testimony over which reasonable minds might differ on the existence of a disability. After testifying about his open heart surgery in 1973, and the subsequent hospitalization in January, 1975, for the lower heart blockage, plaintiff stated the following:

“Q. During this time that you were going back to see Dr. Watkins, did you work anywhere?
“A. No, sir.
“Q. Since January 9, 1975, have you worked anywhere?
“A. No, sir.”,

and later:

“Q. Have you placed any restrictions upon yourself?
“A. What kind of restrictions do you mean?
“Q. I am talking about of what you can do and what you can’t do.
.“A. I have tried to do a lot of things, and I just can’t do them.”

On redirect, plaintiff testified:

“Q. Let me ask you this: Have you worked anywhere since January of 1975?
“A. No, sir, all I can do is get up the doorsteps.
“Q. Are you still having any difficulty with your heart?
“A. Yes, sir.
“Q. What kind of difficulty are you having?
“A. Pain in my chest.
“Q. You are taking medication?
“A. Right.”

The above --testimony concerning plaintiff’s inability to work, i. e., disability, when considered with his health history is sufficient to create a jury question as to whether plaintiff was disabled after April, 1975.

Because the expert’s opinion in this case was controverted and concerned a subject not solely within the knowledge of experts, it was not binding on the jury. Dyer, supra. Thus, we find no error in the verdict rendered below, clothed as it is with the attendant presumption of correctness. Walker, supra.

AFFIRMED.

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

ON REHEARING

HOLMES, Judge.

On rehearing, we extend our original opinion and refer interested parties to Mason v. Connecticut General Life Insurance Company, 367 So.2d 1374, decided by our supreme court on January 26, 1979.

OPINION EXTENDED; APPLICATION FOR REHEARING OVERRULED.

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


author: JONES, Justice.

text:
    Ex parte FORD LIFE INSURANCE COMPANY, INC.
    78-357.
    Supreme Court of Alabama.
    April 27, 1979.
   JONES, Justice.

Writ Denied.

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


author: HOLMES, Judge.

text:
    In re: Pamela Joy JAMES v. Anthony Larry JAMES. Ex parte Anthony Larry JAMES.
    Civ. 1706.
    Court of Civil Appeals of Alabama.
    April 18, 1979.
    Gary L. Aldridge, Decatur, for petitioner.
   HOLMES, Judge.

This is a contempt proceeding.

The husband was found guilty of criminal contempt and sentenced to three days imprisonment. He appeals to this court by certiorari.

The dispositive issue is whether a reconciliation of the parties terminates a prior restraining order. We hold that in this instance it does and reverse.

The record reveals the following: The parties separated on April 23, 1978, due to marital difficulties. Two days later, the wife petitioned the circuit court for custody of the parties’ child and for an order temporarily restraining the husband from interfering with the wife. The order was granted on April 25, 1978.

The record further indicates that the parties reconciled their differences the next day, i. e., April 26, and lived as man and wife until June, 1978. Later in June, the parties again separated and on June 27, the wife amended her initial complaint and petitioned for divorce. In addition, the wife requested that the trial court find the husband in criminal contempt for violations of its restraining order. As grounds for the rule nisi, the wife alleged that the husband had struck her, and further, that he had attempted to run her off the highway with his vehicle while she was driving her automobile. Those instances of conduct by the husband against the wife occurred in June of 1978.

After a hearing, the trial court found the husband in contempt and sentenced him to three days in prison.

At the hearing, the husband maintained, as he does before this court, that he was not properly served with the restraining order and thus the trial court lacked jurisdiction over him. Specifically, the husband contended that he had no knowledge of the existence or contents of the restraining order because the order was served on an attorney who was not his attorney of record. While we observe that the record factually supports this allegation, we are of the opinion that the dispositive contention raised by the husband is whether the trial court lacked the authority to hold him in contempt by virtue of the parties’ reconciliation. We hold that the trial court did not have such authority.

It is elementary that a judgment is void if the court rendering it lacks jurisdiction over the subject matter or of the parties. Sweeney v. Tritsch, 151 Ala. 242, 44 So. 184 (1907). In Alabama, in a divorce action, upon reconciliation of the parties, the trial court is without jurisdiction over the proceeding because reconciliation abrogates the cause of action. McNutt v. Beaty, 370 So.2d 998 (Ala.1979). See also Johnson v. Gerald, 216 Ala. 581, 113 So. 447 (1927); Bell v. Bell, 214 Ala. 573, 108 So. 375 (1926); Annot., 92 A.L.R.2d 1009, 1014 (1963). As stated in McNutt, supra:

[W]e hold that reconciliation between the parties to a divorce abrogates the cause of action; the suit as a legal proceeding no longer exists. After reconciliation no order or judgment may be entered awarding attorneys’ fees and, in most cases, no order of any kind will be allowed other than one dismissing the case. Bell v. Bell, 214 Ala. at 575, 108 So. at 378, quoting Kuntz v. Kuntz, 80 N.J.Eq. 429, 83 A. 787 (1912). See Annot., 92 A.L.R.2d 1009, 1014 (1963). (Emphasis supplied.)

The reasoning in McNutt is compelling and applies equally well in this instance.

In the case before us the record shows that on the day following the issuance of the restraining order, the parties reconciled their marital differences and resumed living together as husband and wife. Furthermore, there is nothing in the record which indicates to this court that a reconciliation did not in fact occur inasmuch as there is uncontroverted testimony by the wife that the parties resumed marital responsibilities for some time subsequent to the termination of their initial separation. Where, as here, reconciliation occurs after the issuance of a restraining order, it abrogates the cause of action and deprives the trial court of subject matter jurisdiction over the proceedings. McNutt, supra.

Thus, because the parties by their acts withdrew all issues for the trial court’s consideration with respect to violations of its restraining order, the trial court was without authority to find the husband guilty of criminal contempt.

The case is due to be reversed and remanded.

REVERSED AND REMANDED.

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


author: WRIGHT, Presiding Judge.

text:
    Jack M. DASINGER v. Mary E. DASINGER.
    Civ. 1736.
    Court of Civil Appeals of Alabama.
    April 18, 1979.
    Robert H. Brogden, Ozark, for appellant.
    Joel M. Nomberg, Daleville, for appellee.
   WRIGHT, Presiding Judge.

This is a divorce case. After oral hearing, the court entered judgment on October 26, 1978. The plaintiff-husband brought the suit for divorce and now appeals from the judgment.

There are three aspects of the judgment of which the husband complains and charges an abuse of discretion.

The court awarded the wife the sum of $300 per month as child support and the additional sum of $150 per month as periodic alimony. There are two children, ages ten years and five and one-half months. The younger child was born after the separation. The husband contends the awards are not supported by the evidence.

That evidence briefly is that the parties were married in 1967. The wife has worked at least 75% of the time since the marriage as a beauty operator. For the last three or four years she has owned her own shop, netting annually $9,000 to $10,-000. In 1973 the parties purchased 116 acres of land and the husband began farming. They subsequently built a home on the farm which is now estimated to be worth $48,000. There are farm buildings and much equipment. There are forty brood cows and twenty-seven calves. The husband grows peanuts and corn and recently has gone into a hog operation with an uncle which owns ninety-nine brood sows and five boars. He owns one-half the hogs and has six horses. Shortly after the filing of the divorce, the husband borrowed $146,850 from Farmer’s Home Administration. He owes various other debts and has other assets. His balance sheet for October 1978 showed a losing farming operation with liabilities exceeding assets by some $70,000. This status was alleged to exist even though he had grossed over $61,000 in 1977 from which he claimed $17,342 in depreciation, $30,000 for fertilizer, $15,845 for feed, $5,045 for repairs and $25,384 in interest. He was in the habit of yearly borrowing operating money, including $400 per month living expenses, from Farmer’s Home Administration.

It was undisputed that the income of the wife was placed in a joint account and most living expenses of the family were paid from her income in the years after the farm was purchased.

This court has reviewed the evidence very carefully and very candidly is nonplussed by the evidence that a farmer owning only one hundred sixteen acres of land and possessing a losing track record can borrow $146,-000 though already owing almost $200,000. If the evidence is believed, and it is not contradicted, such is the state of the husband’s affairs. Certain it is that such good fortune cannot long endure even with the aid of a generous government agency. However, in view of such generosity which the husband has shared with his family at the rate of $400 per month since the separation, we cannot find that the trial judge was in error in basing a judgment for child support and alimony on the assumption that such blessings would continue to flow from Washington. Certainly there is reasonable basis in the evidence for drawing such an inference. We therefore affirm his judgment.

We also affirm the order of payment by the husband to the wife of the sum of $10,000 as alimony in gross or as an equitable division of property. Such sum is a payment in lieu of marital rights of the wife in the estate of the husband which she aided him in accumulating. Hager v. Hager, 293 Ala. 47, 299 So.2d 743 (1974). It appears such sum is small recompense to the wife for her investment in a marriage which has accumulated an estate large enough to secure loans and advancements of some quarter million dollars. We find no abuse of discretion in such an award.

. Issue three is directed at the setting of visitation rights of the husband with the children. The court set a continuous period of fifteen days in the summer. The husband requested forty-five days. The custody of and visitation rights with children are matters addressed to the discretion of the court. Skipper v. Skipper, 280 Ala. 506, 195 So.2d 797 (1967). We find no abuse of such discretion in this case.

The judgment below is affirmed.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.