author: MADDOX, Justice. TORBERT, Chief Justice

text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, a corporation, and John Sanders v. Wanda BORDEN and Coy Borden.
    78-134.
    Supreme Court of Alabama.
    May 18, 1979.

      John S. Key of Eyster, Eyster, Key & Tubb, Decatur, for appellants.
    W. H. Rogers, Moulton, for appellees.
   MADDOX, Justice.

Plaintiffs, Wanda Borden and Coy Borden, were insureds of State Farm Mutual Automobile Insurance Company. They sued State Farm, and in the only count of their complaint here applicable, claimed that John Sanders, State Farm’s claims adjuster, negotiated a settlement with them under the uninsured motorist coverage, and in doing so made certain misrepresentations to them. They claimed $250,000 as damages. The jury awarded them $12,500. The trial court entered a judgment thereon and overruled State Farm’s motions for judgment notwithstanding the verdict and for a new trial.

State Farm states the issues:

(1) Was there sufficient evidence of fraud to submit the issue to the jury?

(2) Was there sufficient evidence submitted to warrant an award by the jury of punitive damages?

We have very carefully read the record and are convinced that the court did not err in submitting the issue of fraud to the jury.

State Farm’s insurance adjuster has adjusted automobile insurance claims for 16 years. He adjusted, on an average, 35 to 40 claims per month. He was aware of the extent of uninsured motorist coverage provided by the policy. He knew the motorist who was at fault in the accident did not have insurance. He knew the extent of the injuries suffered by State Farm’s insured. The testimony was conflicting as to what the claims adjuster told the insureds at the time they signed the release form, but the jury could have believed the insured’s version, which was to the effect that the adjuster did not advise them that by signing the form they were releasing a valid claim they had for pain and suffering, loss of services and loss of consortium, all under the uninsured motorist provisions of the policy.

The insured testified regarding the negotiations surrounding the execution of the release:

“Q. And the Twenty-two Hundred Dollars, did you receive a check from Mr. Sanders as payment for the truck?
“A. That’s right, yes, sir.
“Q. Did you have a discussion with him about your contention that the truck was worth the fair market value of Twenty-five Hundred Dollars?
“A. Yes, I told him that I would have to have Twenty-five Hundred Dollars, because I felt , that was a fair price for it. And he said that he couldn’t go over the book price, that he would slip me in a little later to cover that.
“Q. To cover the difference—
“A. That’s right, between the Twenty-two up to the Twenty-five.
******
“Q. If you would, then, please, sir, just tell us what took place from the time that you and your wife arrived down at Mike’s Office and what was said?
“A. Well, as we went in he told us to come on and have a seat in here. He said we will—
“Q. Who did?
“A. Mr. Sanders.
“Q. All right.
“A. He said we would get this agreement signed up, and he said that we could sign as quick as possible and I could get back to work.
“Q. All right, sir. And then what happened?
“A. Well, sir, he just made out the forms here, and he just pushed them over there for me to sign. And he didn’t tell me what it was for. The only thing he said I was signing was for her hospital, her loss of wages and doctor bills and earnings and inconveniences was going to cause us.
“Q. Well, did you all talk about any inconveniences?
* * * sjt sj< sf:
“A. Okay. He told me that the inconveniences was like, you know, I was going to have to go look for me a truck, and I had to take some time off from work, and a baby sitter, that we would probably need a baby sitter, because we couldn’t stay at home. And the boy was staying at my mother’s, and gas and stuff like that, running around to get me another vehicle. That was the inconveniences that he talked about.
“Q. All right. Did you have any discussions about putting in some more money concerning your truck?
“A. Yes, sir.
“Q. What was said about that?
“A. I just told him that I wanted more money for the truck. And he said, ‘Well, we will slip that in, we will just slip that in here and make it even Twelve Hundred Dollars.
“Q. Even Twelve Hundred?
“A. That’s right, for the inconveniences and the balance of my truck, which he had promised me before that he was paying me.
“Q. At any time, up until the time that you signed — you and your wife signed these exhibits, being Plaintiffs’ Exhibits No. 4 and 5 here, did Mr. Sanders say anything to you about Uninsured Motorist Coverage?
“A. No, sir, and I didn’t even know I had it.”

The State Farm Insurance agent who was present during the negotiations, testified:

“If I am in the office I make it a practice to be in on all of the negotiations, because not only in the interest of State Farm but in the interest of the policy holders.” (Emphasis added.)

The agent could not recall that “Uninsured Motorist Coverage” or “pain and suffering” were mentioned by the adjuster during the negotiations. He did state that he did not tell the insureds that they had uninsured motorist coverage.

We have set out portions of the testimony to show that the jury could have believed that State Farm intended to deceive and injure its insureds. Cf. State Farm Mutual Automobile Insurance Co. v. Ling, 348 So.2d 472 (Ala.1977). Whether specific conduct constitutes an intent to deceive is a jury question. Metropolitan Life Ins. Co. v. James, 238 Ala. 337, 191 So. 352 (1939).

State Farm contends that the evidence was insufficient to support an award of punitive damages. We disagree.

State law required that State Farm offer uninsured motorist coverage to these insureds. The jury could have concluded that the adjuster deliberately and intentionally suppressed the fact that there was coverage for pain and suffering, loss of services and consortium, and that, under the particular circumstances, there was an intent to deceive.

AFFIRMED.

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

TORBERT, C. J., dissents.

ALMON, J., not sitting.

TORBERT, Chief Justice

(dissenting):

I respectfully dissent.

In order to recover punitive damages for misrepresentation, the fraud must be gross, malicious, or oppressive and the misstatement must be made with an intention to injure or deceive. Proctor Agency, Inc. v. Anderson, 358 So.2d 164 (Ala.1978); Winn-Dixie Montgomery, Inc. v. Henderson, 371 So.2d 899 (Ala.1979). I disagree that the facts of this case show that appellant intended to injure or deceive appellee or that such action amounted to gross, malicious, or oppressive conduct. Accordingly, I would uphold the jury’s award of compensatory damages in the amount of $10,000, but would reverse as to the award of $2,500 punitive damages.


source: Caselaw Access Project

author: BEATTY, Justice.

license: Public Domain

text:
    DAUPHIN ISLAND PROPERTY OWNERS ASSOCIATION, INC., a corporation v. C. B. KUPPERSMITH, etc., et al.
    77-663.
    Supreme Court of Alabama.
    May 25, 1979.
    Larry U. Sims, Mobile, for appellant.
    William M. Lyon, Jr., Mobile, for appel-lees C. B. Kuppersmith and Gennett H. Kuppersmith.
   BEATTY, Justice.

The plaintiff, Dauphin Island Property Owners Association, Inc., appeals from a decree denying it a permanent injunction against the Kuppersmiths. We reverse and remand.

The Association brought the suit to compel the removal of a boat lift which was being constructed on the rear of a residential lot located in the Indian Bay Addition to the 1953 Subdivision of Dauphin Island. The complaint alleged the violation of certain building restrictions and protective covenants because of the construction.

The defendant, Gennett H. Kuppersmith, is the record title holder of Lot 42 of the Indian Bay Addition. Her husband, the co-defendant, C. B. Kuppersmith, Jr., is a former joint owner of this lot and is the person who oversaw the construction after an unsuccessful effort to obtain a building permit for the job.

Although there is no controversy concerning the applicability of the restrictive covenants and building permit requirements to Lot 42, a description of these is pertinent here. Generally the 1953 Subdivision of Dauphin Island was subject to extensive restrictions respecting the erection of buildings, including the condition precedent of prior approval of an architectural committee of the Property Owners Association. According to the restrictions, in the event of the committee’s failure to act upon a request for thirty days, the approval is waived. Notice of disapproval is specified as either personal delivery or delivery by registered mail sent to the “last known address.” It is specifically stated in these restrictions that:

The failure to enforce any of the restrictions herein set forth at the time of their violation shall in no event be deemed to be a waiver of the right to do so thereafter.

In addition to this and other restrictions applicable to the Island subdivision as a whole, there are additional restrictions applicable to the several smaller subdivisions of the Island, including the Indian Bay Addition. The Indian Bay restrictions adopted the building permit requirements of the general restrictions and, in addition, contained a restriction pertaining to piers and wharfs:

No pier or wharf shall be constructed more than 2 feet in height above the adjacent sea wall. No roof, shelter or other permanent structure, except hand rails, benches and tie pilings, may be built or erected on any such pier or wharf in the Indian Bay Addition. Two tie off pilings will be permitted at each wharf, but the same shall not be more than 35 feet distant into the water from the sea wall.

Variances in the restrictions applicable to Indian Bay may be authorized by a majority of the property owners of that block, after first having been approved by the architectural committee and two-thirds of the members of the board of directors of the Association, in that order.

The defendants obtained building permits from the Association for a house they built on Lot 43 (which they also owned) sometime prior to 1971. Then in 1971, they obtained another building permit to construct a garage which partially extended onto Lot 42. In 1971, they also obtained a variance allowing them to construct a “boat stall cover,” a structure very similar to the “boat lift” in question.

On March 12,1977, C. B. Kuppersmith, Jr. went to the home of the Association’s secretary, John B. Young, and orally requested a permit to build the boat lift. This conversation took place on the morning before the afternoon on which the board of directors met. Young presented the request to the directors that afternoon, but the request was denied. Young informed the Kuper-smiths of the board’s action by letter dated March 16, 1977 which he sent through the mail to their Mobile address because they did not live on Dauphin Island. Kupper-smith began construction of his proposed boat lift in April, and testified that he received this letter after he had begun construction, and after he had received a permit from the Corps of Engineers. He conceded that he had begun construction without the permit but had desisted from completion when he received a letter from the Association’s lawyer containing that suggestion. The structure consisted of eight large creosoted pilings based in the bay water and six large creosoted pilings based on land, ten or eleven feet above the sea wall. Beams tied the pilings together and supported a boat lift hoist. Kuppersmith proposed to construct a roof of one foot in height, which would have resulted in a total height of eleven feet or more above the bay water.

After a hearing ore terms the trial court denied injunctive relief. Although no reasons for that decision were announced the Association now contends that such a decision was plainly and palpably wrong under the evidence. Whether or not that position is correct depends upon whether or not the evidence clearly disclosed violations of restrictions, and if so, whether or not the Association was estopped to assert them.

The first issue deals with the alleged violation of construction without a building permit. The defendants would have us interpret the word “building” as used in the applicable restriction as referring only to habitable structures. We cannot agree that such a narrow definition was contemplated by the developers. Quite the contrary, the language in the several paragraphs pertaining to architectural control suggests the contemplation of a variety of structures. Paragraph 1 states that “no building” is to be constructed, etc. without approval of structural design, quality and location. No qualifying language as to type or character is present. Sub-paragraph (c) establishes different fees for the issuance of permits for construction of different types of buildings, and distinguishes between main residences, commercial buildings, and outbuildings. These distinctions accord with the usual understanding of the term “building” and with the definition found in Webster’s Third New International Dictionary (G. & C. Merriam Co., 1971) at 292:

[A] constructed edifice designed to stand more or less permanently . . serving as a dwelling, storehouse, factory . or other useful structure . . .

Indeed, a pier has been held to be a building. Ambrose and Company v. Hutchinson, Tex.Civ.App., 356 S.W.2d 215 (1962). Cf. Wimberly v. Mayberry, 94 Ala. 240, 10 So. 157 (1891) (the term “building” refers to an independent erection upon the land). It follows that the boat lift structure was a “building” for whose construction a permit was necessary under the restrictions.

The second issue concerns the alleged height and roof restriction violations. The defendants maintain that the two-foot height requirement, “no pier or wharf shall be constructed more than 2 feet in height above the adjacent sea wall,” applies either to a pier floor, its supporting pilings, or both. They insist that the pier or catwalk here does not exceed the height limitation, and point us to a photograph introduced as plaintiff’s exhibit 3. Perusal of that exhibit, however, reveals nothing identifiable as a catwalk. Defendants’ exhibit D, however, does contain a photograph (“R”) which, though somewhat indistinct, identifies what may be a catwalk outside the two tiers of connected pilings. This photograph also discloses the cross-members which cover the tops of the pilings, all of which conform to Kuppersmith’s own height description of the structure which was that it was ten or eleven feet above the sea wall. These descriptions clearly support the conclusion that the boat lift building (conceded by both sides as a kind of “pier or wharf”) as constructed violates the height restriction. The same conclusion must be reached concerning the alleged roof violation. The evidence conclusively shows the existence of large beams above the pilings. Although these of course do not represent a completed roof, they are nonetheless component parts of the roof which Kuppersmith admittedly intended to complete but for the letter he received, the height of which would have been approximately one foot above the pilings.

The principal argument of the defendants is that the Association is estopped to assert these violations because of its acquiescence in similar violations, namely, those pertaining to the limitation of two tie-off pilings. It is undisputed that there were in the Indian Bay Addition numerous instances of the violation of that restriction. The Association has not raised that issue in this suit as a basis for affirmative relief; however the defendants raised it as a defense, and assert that in spite of a long history of those violations, the Association did nothing to curb them until 1976. The defendants’ assertion that this acquiescence is a defense for them poses the crucial issue: does acquiescence in the violation of one restriction constitute acquiescence in the violation of another?

This question was confronted in Brown v. Morris, 279 Ala. 241, 184 So.2d 148 (1966). In that case the property was subject to a number of restrictions, among them being:

“1. * * * No lot shall be used except for residential purposes.
“3. Building Location. * * * (Here follow certain restrictions as to the location of the building on each lot.[)]”

When one lot owner sought to enforce against another the restriction concerning residential purposes, the defense was that there were “at least eight” houses built on lots in violation of the restriction relating to location, and thus the restriction as to building character was waived. In response to that argument this Court observed:

There is no evidence that there has been any deviation, invasion or waiver by any of the owners of the restricted lots as to the type or character of buildings allowed or permitted by the covenants on these lots. Owners might suffer deviation as to locational uniformity on the lots, and subject themselves to a contention that they had waived compliance in this respect, but we do not think such contention, if valid and meritorious should overflow into another area of uniformity, namely, the character and type of buildings allowed. We pretermit deciding the effect of failing to take action for compliance in the area of uniformity as to location of residences in accord with the covenant. We merely hold that such failure does not ripen into a waiver of restrictions as to the type and character of buildings that may be erected on the lots.
To hold otherwise would require the lot owners or purchasers in a subdivision impressed with covenants, as here, to be on the alert for locational deviations and to bring suit forthwith lest there be an accumulation of locational violations that would open the flood gates to a complete abandonment of all restrictive covenants affecting the subdivision under consideration. We don’t think such bird-dogging and legal action is required in all facets of restrictive covenants affecting the area, in order to preserve the integrity of the covenants not related to the deviations. It was held in Thorburn v. Morris, 75 A. 757 (N.J.), that parties may abandon a scheme of restrictions as to a part of their property, and maintain it as to other portions. Certainly, appellants have a right to maintain the restrictions as to the type and character of buildings to be placed on the restricted lots even though they should abandon the restrictions as to the location of residences on the restricted lots. [Citations omitted]

In accord with that position, we hold that any failure of the Association to enforce the two-tie pilings restriction did not constitute estoppel by acquiescence to assert either the height and roof restrictions or the building permit restriction. Insofar as there might be some slight similarity in the construction of boat ties and a boat lift of the type in question here, because of the use of pilings in both, even so the two structures are obviously dissimilar in both appearance and character, and thus the restrictions applicable to each retain their separate identities.

Nor is any estoppel by acquiescence or waiver established by proof of the existence of another boat shed cover, or boat lift, owned by a lot owner in Indian Bay Addition. In that particular instance the structure was permitted as a variance by the Association after the specified procedures were followed. Such a deliberate adherence to the restriction procedures cannot be deemed an estoppel or waiver.

Finally, the defendants contend that certain petitions, signed by a majority of the lot owners, to amend the restrictions and permit roofs or shelters to be erected on any pier or wharf in Indian Bay Addition, demonstrate the desires of those owners to effect such amendments. That conclusion may be a proper one; however there was no evidence of any adoption of any such amendment by a vote of the majority required by the covenants, and no such contention is made. Apparently, the position of defendants is that these petitions show that at the end of twenty-five years following their adoption, the restrictions in question would be annulled or amended, and, having only a short time to run before that event it would be justifiable to assume now that they have been tacitly amended by the petitions themselves.

It is true that the restrictions are to exist for a period of twenty-five years, but at the expiration of that time they are automatically extended for successive ten-year periods unless a majority of the lot owners vote otherwise. The existence of the petitions, although they may have applied to the structure in question, in themselves did not amend the restrictions. It is clear that more formal action was required under the restrictions to effect their amendment. Those procedures, as well as the restrictions themselves, were part of the <■ development scheme which formed inducements to purchase the lots, and thus became part of the consideration running to the respective lot owners. Each had their benefit and each had their burden. Scheuer v. Britt, 218 Ala. 270, 118 So.2d 658 (1928). The wisdom in their continuance is not for us to decide.

Under the evidence the trial court’s decree was plainly and palpably wrong. Lott v. Keith, 286 Ala. 431, 241 So.2d 104 (1970). The judgment is reversed and the case is remanded for further proceedings not inconsistent with this opinion.

REVERSED AND REMANDED.

TORBERT, C. J., and MADDOX, AL-MON and SHORES, JJ., concur.


author: BRADLEY, Judge. HOLMES, Judge

text:
    VESTER J. THOMPSON, JR., INC., a corporation. v. CITMOCO SERVICES, INC., a corporation.
    Civ. 989.
    Court of Civil Appeals of Alabama.
    May 4, 1977.
    Rehearing Denied June 8, 1977.

      J. Edward Thornton, Mobile, for appellant.
    W. Dewitt Reams and James D. Brooks, Mobile, for appellee.
   BRADLEY, Judge.

Plaintiff, Vester J. Thompson, Jr., Inc., a corporation, filed a complaint in the Circuit Court of Mobile County alleging that defendant, Citmoco Services, Inc., a corporation, owed it $8,937.90 for work and labor done in carrying out an agreement to furnish certain engineering services. Defendant filed a general denial, and trial was had before the court sitting without a jury. A judgment was rendered in favor of plaintiff for $4,849.11. Plaintiff appeals, claiming the judgment is inadequate.

The evidence shows that Bart B. Chamberlain, Jr., president of Citmoco Services, Inc., contacted Vester J. Thompson, Jr., president of plaintiff corporation, by telephone on Friday before Labor Day 1973 and asked him to recommend a foundation for a bulk oil storage tank to be built on property owned by Citmoco adjacent to the Mobile River just north of the Cochrane Bridge on U.S. Highway 90 in Mobile County. Thompson told Chamberlain that he would take some soil samples and perhaps make some other tests over the holiday weekend and be prepared to make a recommendation to Chamberlain on Tuesday after Labor Day. This was satisfactory to Chamberlain and four test borings were done over the weekend.

At their meeting on Tuesday Thompson suggested to Chamberlain that the foundation for the tank be prepared by a method never before used in the Mobile area and one fairly new to the industry whereby sand is densified. The densification process, called a terraprobe, was said to be cheaper than building a concrete cap on top of piles. Chamberlain agreed to the use of this new process for the preparation of the foundation for the storage tank and asked Thompson to design the foundation, provide all services necessary to installation of the foundation, and supervise the installation. They then discussed the cost of Thompson’s services.

Thompson testified he told Chamberlain that it was his company’s practice to bill any job which could not be clearly defined on a unit fee basis, i. e. a fixed, standard fee per unit of work done or per hour worked by classified personnel. He said he was unable at that point to give Chamberlain a definite cost amount. However, Chamberlain attempted to establish a figure by asking whether Thompson’s work would cost $2,000 or $3,000, $5,000, or $10,-000. Thompson said that to the $10,000 figure he replied, “Well, you are getting in the order [of] what it’s going to be.” Thompson testified that he did not agree to do the job for $10,000, or even intimate that $10,000 would be the fixed price of the project or that there would be a fixed price contract.

Chamberlain testified that Thompson told him Thompson did not know how much the engineering involved would cost. However, Chamberlain said he needed some sort of figure because he had to keep a tight control on his costs, as he was operating under contract to someone else. After he asked Thompson whether it would cost $2,000 or $3,000, etc., Thompson told him the final sum would be closer to $10,000 than to $5,000. In reliance on the $10,000 figure, Chamberlain told Thompson to go ahead with the project, using the terraprobe process.

Thompson selected a site for the tank, then engaged Gulf City Construction Company to do the terraprobe. Gulf City submitted a proposal to furnish all labor, equipment and materials necessary to perform the terraprobe for the tank foundation for five days for $11,130; thereafter the daily rate would be $1,540. Chamberlain accepted this proposal. Alabama Asphalt Paving Company was then engaged to perform the necessary excavation and earthen dike construction. Its proposal, accepted by Citmo-co, was estimated for $88,085.60; it expressly did not guarantee the quantities upon which the estimate was based. All facets of the work done by both Alabama Asphalt and Gulf City cost more than originally estimated.

By the time the work Thompson undertook was completed, Citmoco had paid Thompson $6,482.89, based on the fee schedule originally submitted to Chamberlain. After the completion of the job, Thompson submitted a final bill for the remainder of the work to Citmoco in the amount of $8,937.90, again in accord with the fee schedule originally submitted to Chamberlain. Chamberlain refused to pay the additional amount claimed owed because he contended it exceeded the $10,000 limit to which they had agreed at the beginning of the job.

After some attempt to negotiate a settlement, Thompson brought this suit against Citmoco for work and labor done for the full amount of services performed, $8,937.90.

Appellant Thompson argues in brief as its first issue that Citmoco is precluded from raising as a defense the cost limit of $10,000 allegedly orally contracted by the parties, since this defense was not specially pled at trial. It is true that Citmoco filed only a general denial to Thompson’s action for work and labor done, yet on appeal says that it does not owe Thompson any amount in excess of $10,000, the contract limit agreed to at the beginning of the negotiations. Thompson says that this defense amounts to a plea of recoupment and must be specially pled as required by Mayberry v. Leech, Harrison & Foxwood, 58 Ala. 339 (1877), and Title 7, Section 357, Code of Alabama 1940 (Recomp. 1958).

We agree with appellant’s argument that the Alabama Rules of Civil Procedure did not specifically repeal, supersede or modify section 357, supra; however, Rule 8(c) provides for the special pleading of affirmative defenses and therefore in effect supersedes section 357. We conclude that recoupment, being an affirmative defense should have been specially pled.

However, our conclusion does not require a reversal of the trial court’s judgment because the answer filed by Citmoco is deemed amended under Rule 15(b), ARCP, which provides in part as follows:

“When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.”

The Committee Comment adds:

“ . . . Under the rule where evidence is introduced or an issue raised with the express consent of the other party, or without objection from him, the pleadings ‘shall’ be deemed amended to conform to such evidence.”

It is evident that the supreme court intended Rule 15(b) to apply to amend a pleading which fails to specially plead a matter as required under the Alabama Rules of Civil Procedure. In Associates Financial Services Co. v. First National Bank, 292 Ala. 237, 292 So.2d 112 (1974), the problem before the court was whether the plaintiff, who had alleged fraud in its complaint, was required to plead in replication to the defendant’s answer alleging the statute of limitations. Although the then new Rules of Alabama Procedure did not apply in that case, the court said that a complaint under the ARCP should contain a statement showing time and circumstances of the discovery of the alleged fraud in light of the requirements of Rule 9(b). It then added:

“ . . . This observation is not to be construed as in any manner obviating the operative effect of Rule 15(b) relating to amending the pleadings to conform to the evidence.” 292 Ala. at 242, 292 So.2d at 115.

In the case at bar Thompson did not object either to testimony regarding the oral agreement nor to the introduction of letters for the purpose of showing what Citmoco thought the agreement between the parties to be. Thompson gave his own rebuttal testimony as to the agreement and offered his own letters. Thus, the issue was clearly tried with consent and the trial court committed no error.

We now come to the central issue in this case, whether the parties entered into a fixed price contract for the work to be done by Thompson. Thompson makes two separate arguments in brief: (1) that there was no oral agreement for a ■ fixed price contract, and (2) even had there been an oral agreement it was subsequently merged into a written agreement that had no fixed price maximum. However there is no written contract in this case. The writings upon which Thompson relies are the invoices and acknowledgements of orders submitted by Thompson to Citmoco, and the correspondence between the parties. These writings do not constitute a contract but simply reflect the position of the parties as to their oral agreement. Thus, the sole issue is whether the parties orally agreed on a maximum price for Thompson’s services.

Citmoco’s position is that the evidence was in dispute as to whether the parties agreed to a maximum contract price. The trial court’s judgment resolved the dispute in its favor and this judgment should be affirmed.

A careful review of the evidence pertinent to this issue compels the conclusion there was no meeting of the minds as to a maximum price beyond which Citmoco would not be required to pay. In order for there to be a binding contract, a meeting of the minds of the contracting parties must take place. Board of Commissioners of Alabama State Bar v. Jones, 291 Ala. 371, 281 So.2d 267 (1973); Christian v. Rabren, 290 Ala. 45, 273 So.2d 459 (1973). In Southern Ry. Co. v. Birmingham Rail & Locomotive Co., 210 Ala. 540, 541, 98 So. 727, 728 (1924), it was said:

“ . . . The minds of the parties must meet and concur on every necessary element of the contract. . In this they must consent to the same thing in the same sense. Where one person offers a thing and another accepts it, and they have in mind different things, there can be no contract.”

In the case at bar, regardless of what Chamberlain thought, it is clear that Thompson never intended to quote a maximum guaranteed price for the work he was to do, but gave Chamberlain an estimate only.

Furthermore, in construing the evidence most favorably to Chamberlain we fail to find. that it supports his contention that Thompson bound himself to a guaranteed maximum price for the work to be done. Although there is conflict in the testimony as to what was said in the initial conversation regarding the cost of the project, both Thompson and Chamberlain agreed that Thompson said the final charge for Thompson’s engineering services would be somewhere around $10,000, or closer to $5,000 or $6,000 than to $10,000. This language can in no way be construed as a fixed price for the reason that it is impossible to ascertain what precise cost figure was intended. If Thompson’s testimony is believed then the price was to be in the neighborhood of $10,000. Thus, the cost could have been more than $10,000 as easily as it could have been less than $10,000, and still have been approximately $10,000. It is impossible to ascertain how much more or how much less was acceptable to both parties at the time of the conversation. On the other hand, if Chamberlain’s testimony is believed the fact remains that it is impossible to ascertain what exact price the parties intended, as the range between $5,000 and $10,000 is rather broad and it is impossible to know how much closer to $5,000 than to $10,000 the parties intended. It thus appears from this testimony that at the time of the conversation, the point at which the oral contract was formed, both parties understood the $10,000 figure given by Thompson to be only an estimate, not the maximum price Thompson would charge for his work.

This conclusion is supported by the correspondence between Thompson and Chamberlain. In a letter from Thompson to Chamberlain dated January 24, 1974, in which Thompson submitted his final bill, Thompson said:

“In evaluating the amount of our invoice, bear in mind that this includes Preliminary Planning, Engineering, soil borings and testing, and field supervision. Where a separate engineering firm is involved the soil borings and testing are an additional item, and most engineering contracts include field supervision as special services and an extra item.
“Before I even knew of the details of the scope of the project, I was somewhat pressed into an estimate of the cost of our services, which was given as up to the order of $10,000.” (Emphasis added.)

Chamberlain responded in a letter dated January 28, 1974, stating:

“Then, having described the undertaking, I asked you how long it would take to do the earth and foundation work, whether you would be free to engineer and supervise it, and what the cost for your engineering and supervision would be. You first responded that you did not know. Then I asked you to tell me what the order of magnitude of your charges might be for such services and illustrated my question by asking whether they would be $2500, $5000, $7500 or $10,000, and you assured me that they would be less than $10,000, and closer to $5000 than to $10,000.
“I have never received from you any other or different information, nor have you on any of the numerous occasions when we have discussed this matter suggested that your charges would be anything like $15,000, and I am quite disturbed to find that your charges, like those of one of the contractors you engaged, are almost precisely 100 percent above estimate.
“The thing that concerns me most about all this is your apparent feeling that, having given an estimate, whether as to your own work or that of a contractor, you have no obligation when costs are vastly exceeding estimates, and when that fact is known only to you, to inform your customer before substantial excess costs are incurred.” (Emphasis added.)

Again on March 12,. 1974 Chamberlain wrote to Thompson as follows:

“Dear Yester:
“Please give us an analysis of the expenses incurred or paid by your firm for outside engineering work such as but not limited to those of Rowe Engineering, which were not discussed or contemplated when you assured us that the cost of engineering and related services by your firm on the terminal project would ‘be closer to $7500 than $10,000.’ ”

Then on January 14, 1975 Chamberlain wrote Thompson:

“Dear Vester:
“The purpose of this letter is to conclude correspondence about your charges for the engineering work you performed for this company in connection with the preparation of the foundation for the 125,000-barrel tank which was recently constructed north of the causeway.
“I hope this letter will achieve its purpose.
“On March 12, 1974 I wrote you and quoted a conversation I had had with you. You have not denied and, incidentally, you are in no position to deny the correctness of my quote to the effect that ‘the cost of engineering and related services by your firm on the terminal project would be closer to $7500 than $10,000.’
“I did not ask you for an estimate. I asked you for a price and you replied by giving a price within stated limits.
“Your total billings for the services concerning which you gave us the price exceed the top limit by $5420.79.”

In Thompson’s letter to Chamberlain he said he gave an estimate, not a fixed price, and Chamberlain responded in kind by referring to the $10,000 figure as an estimate. Not until January 14, 1975, over a year after the conversation , did Chamberlain characterize the $10,000 figure as a fixed contract price. But it is the intent of the parties at the time of making the contract which controls, not what a party perceives over a year later to have been the intent. United States v. Seventy-Seven Acres of Land, 88 F.Supp. 349 (S.D.Ala. 1950); cf. G. F. A. Peanut Association v. W. F. Covington Planter Co., 238 Ala. 562, 192 So. 502 (1939). It therefore appears from the correspondence of the parties, as well as from their testimony, that at the time the oral contract was made both parties understood the $10,000 figure to be an estimate, not a fixed price.

We have failed to find an Alabama case defining “estimate;” however, several cases from other jurisdictions have construed this word. In Denniston and Partridge Co. v. Mingus, 179 N.W.2d 748 (Iowa 1970), the Iowa Supreme Court said:

“The ‘estimated cost’ of a building means the reasonable cost of a building erected in accordance with plans and specifications referred to and not necessarily the amount agreed upon by the parties or an offer accepted by defendant. An estimate is equivalent of ‘more or less’ and does not pretend to be based on absolute calculations. Use of the word precludes accuracy. ‘To make an estimate’ ordinarily means to calculate roughly or to form an opinion as to amount from imperfect data.” 179 N.W.2d at 752. (Citation omitted).

The Missouri Supreme Court said in J. E. Hathman, Inc. v. Sigma Alpha Epsilon Club, 491 S.W.2d 261 (Mo.1973), that:

“The term ‘estimate’ has been considered in decisions in this state. For example, in Gratz v. City of Kirkwood, 165 Mo.App. 196, 145 S.W. 870, 874 (1912), the court said: ‘ * * * An estimate does not pretend to be based on absolute calculations but is exactly what the word means, an estimate. To make an estimate, ordinarily means “to calculate roughly, or to form an opinion as to amount from imperfect data.” Louisville, H. & St. L. Ry. Co. v. Chandler’s Adm’r. (Ky. Court of Appeals) 72 S.W. 805. Webster’s New International Dictionary (Ed. 1910) defines the word “estimate” as meaning “to fix the worth, value, size, extent, etc., of, especially roughly or in a general way.” The use of the word estimate “precludes accuracy. * * Monthly estimates are understood to be mere approximations.” Shipman v. State, 43 Wis. 381, loc. cit. 389, citing 1 Redfield on Railways, 436.’
“In Beeler v. Miller, 254 S.W.2d 986, 990 (Mo.App.1953), the court quotes with approval from Gratz v. City of Kirkwood, supra, and recognizes that an estimate is an approximation. In Klein v. Puritan Fashions, Inc., 439 S.W.2d 229, 232 (Mo.App.1969), the court had this to say: ‘First, the words “estimate” and “estimated” are inconsistent with a promise to do specific work for an exact sum. The word “estimate” negates certainty; it means “to calculate roughly, or to form an opinion as to amount from imperfect data.” (Beeler v. Miller, Mo.App., 254 S.W.2d 986 [4-6].)’ ” 491 S.W.2d at 266.

To this court the evidence is overwhelming that both parties were talking about estimates, or approximations of costs, and by the use of these indefinite terms eliminated the conclusion that they had intended to agree on a definite, accurate, stated amount beyond which Chamberlain would not be obligated to pay.

Citmoco seeks to fall within the scope of R. L. Bains Builders, Inc. v. Bice, 275 Ala. 23, 151 So.2d 747 (1963), a case similar to the one at bar. There a contractor brought suit to enforce a mechanic’s and material-man’s lien against the owners of a house because he had not been paid for his repair and remodeling work. The contractor contended he had done the work on a cost-plus basis; the homeowners maintained the contract for labor and work was done at an estimated cost. The final bill exceeded the estimated cost by $518. The homeowners testified that the contractor had agreed that in no event was the material and labor to exceed $12,500, and that they had told the contractor on several occasions that they were financially unable to pay any excess; the contractor disputed the homeowners’ story. The supreme court upheld the trial court’s finding that the homeowners had been induced to sign the contract upon the representation that the cost of labor and the material in repairing and remodeling the house would not exceed $12,500.

In the case at bar the record is completely void of any evidence that Thompson gave Chamberlain the kind of assurance as to price as was involved in the Bice decision. Thus, that case is not controlling here.

Consequently we hold that the trial court erred in finding that the parties had agreed to a maximum amount of $10,000 for Thompson’s services. The judgment of the trial court is reversed and the cause remanded for further proceedings to determine the value of the work and labor Thompson performed for Citmoco.

REVERSED AND REMANDED.

WRIGHT, P. J., concurs.

HOLMES, J., dissents.

HOLMES, Judge

(dissenting).

Each member of this court has carefully considered the various controlling principles of law. Positions on the correct disposition of the appeal have changed and rechanged. However, with all due respect and after careful study and reflection, I must respectfully dissent.

Suffice it to say that in my view, sufficient, though slight, evidence was presented by the appellee to present a conflict in the testimony as to whether a contract was created. If this conflict, as I view it, was created, then it became the duty of the trial court to resolve that conflict. Ingram v. Brookbank, 45 Ala.App. 388, 231 So.2d 164 (1970).

I should not be understood as saying that I would have found as the trial judge did, but it is not our duty to substitute our judgment for the trier of facts, even though we may have reached a different conclusion. McPherson v. Everett, 277 Ala. 519, 172 So.2d 784 (1965). I therefore dissent.


author: PER CURIAM. BLOODWORTH, Justice

text:
    In re Vester J. THOMPSON, Jr. v. CITMOCO SERVICES, INC., a corporation. Ex parte Citmoco Services, Inc., a corporation.
    SC 2670.
    Supreme Court of Alabama.
    Jan. 6, 1978.
    Rehearing Denied March 10, 1978.
    W. Dewitt Reams and Geary A. Gaston, Mobile, for petitioner.
    J. Edward Thornton, Mobile, for respondent.
   PER CURIAM.

This Court granted certiorari to review the opinion of the Court of Civil Appeals to determine whether that court, in a split decision, applied the correct rule of law in reviewing findings of fact made by the trial court. We reverse and remand.

In reviewing the sufficiency of the evidence to support findings of fact made by a trial judge, sitting without a jury, the law sayeth:

“On appeal, this court does not weigh the evidence as regards its reasonably satisfying effect on the issue tendered, but in considering it, we indulge all favorable presumptions to sustain the trial court’s conclusion and will not disturb it unless plainly erroneous or manifestly unjust. Maxwell v. City of Birmingham, 271 Ala. 570, 126 So.2d 209; Decker v. Hays, 282 Ala. 93, 209 So.2d 378.”

After reviewing the opinion of the Court of Civil Appeals, and the record for a better understanding of the facts set out in that opinion, we conclude that the Court of Civil Appeals has erred in reversing the judgment of the trial court, and misapplied the rule of appellate review quoted herein. Its judgment is, therefore, reversed and the cause is remanded.

Respondent Thompson filed a motion to quash the Writ of Certiorari. That motion is denied.

MOTION TO QUASH DENIED: REVERSED AND REMANDED.

TORBERT, C. J., and MADDOX, AL-MON, EMBRY and BEATTY, JJ., concur.

BLOODWORTH, FAULKNER, JONES and SHORES, JJ., dissent.

BLOODWORTH, Justice

(dissenting).

I must respectfully dissent, as I would quash the writ as improvidently granted. The decision of the Court of Civil Appeals did not, in my judgment, misapply the rule of appellate review by weighing the evidence, as suggested in the majority opinion. To the contrary, it adhered to the rule of appellate review that is, the trial court will be reversed only if its judgment is clearly and palpably wrong or is without supporting evidence or is manifestly unjust. Jefferson Home Furn. Co. Inc. v. Jefferson Furn. Co., Inc., 349 So.2d 5 (Ala.1977); Sterling Oil of Oklahoma, Inc. v. Pack, 291 Ala. 727, 287 So.2d 847 (1973).

FAULKNER, JONES and SHORES, JJ., concur.


author: BRADLEY, Judge.

text:
    VESTER J. THOMPSON, JR., INC., a corporation v. CITMOCO SERVICES, INC., a corporation.
    Civ. 989.
    Court of Civil Appeals of Alabama.
    April 5, 1978.
    Rehearing Denied May 10, 1978.
   On Remand from Supreme Court

BRADLEY, Judge.

On January 6, 1978 the Supreme Court of Alabama reversed the judgment of this court heretofore rendered in this cause and remanded same to this court for further proceedings.

On remand to this court the appellant has requested that we reconsider our former opinion in the light of the supreme court’s decision and reverse the judgment below because the amount of said judgment has no support in the evidence.

We have carefully reviewed the issues stated for our review in the original appeal. The issue upon which appellant now wishes us to base a reversal was not presented by the original appeal and cannot now be considered. In our original opinion we wrote to each issue presented and no issue presented was left undecided. Consequently, after the reversal and remandment by the supreme court, we have no further revi-sory authority and must affirm the judgment below as directed.

AFFIRMED.

WRIGHT, P. J., concurs.

HOLMES, J., not sitting.


author: FAULKNER, Justice.

text:
    In re VESTER J. THOMPSON, JR., INC., a corporation, v. CITMOCO SERVICES, INC., a corporation. Ex parte Vester J. Thompson, Jr., Inc., a corporation.
    77-529.
    Supreme Court of Alabama.
    Jan. 5, 1979.
    Rehearing Denied Feb. 9, 1979.
    J. Edward Thornton, Mobile, for petitioner.
    W. Dewitt Reams and James D. Brooks, Mobile, for respondent.
   FAULKNER, Justice.

This is the second time this case has been before us on certiorari. A detailed recitation of the facts appears in the original opinion of the Court of Civil Appeals. Vester J. Thompson, Jr., Inc. v. Citmoco Services, Inc., 371 So.2d 35 (Ala.Civ.App.1977). Here it is sufficient to note that at trial the plaintiff, Vester J. Thompson, Jr., Inc. obtained a judgment for $4,849.11. Thompson appealed, claiming the judgment was inadequate and should have been for $8,937.90. The Court of Civil Appeals agreed with his position and reversed and remanded. 371 So.2d 35 (Ala.Civ.App.1977). On certiorari this Court reversed, stating that the Court of Civil Appeals had applied the wrong standard of appellate review, 371 So.2d 42 (Ala.1978). On remand, Thompson attempted to argue that the judgment had no support in the evidence and should, in any event, be at least $6,510.25. The Court of Civil Appeals refused to consider Thompson’s arguments, stating that they “[were] not presented by the original appeal and cannot now be considered.” 371 So.2d 43 (Ala.Civ.App.1978). The court affirmed the judgment of the trial court. We again granted certiorari.

On certiorari this time, we have reviewed the briefs originally filed with the Court of Civil Appeals, and have concluded that the issue which Thompson now relies on was in fact adequately presented by the original appeal. While it is not stated specifically as an issue, the body of Thompson’s brief does raise the point that, in any event, the judgment could be no less than $6,510.25. In this regard the brief stated, “Hence, if Thompson guaranteed Citmoco that the charge for engineering would not be in excess of $10,000, that is not the amount allowed Thompson in the judgment appealed from in this case. What mathematical computations the Trial Court used to arrive at a judgment for $4,849.11 have not been disclosed to us nor are they apparent.” The point is made even more clear in Thompson’s reply brief where Thompson began with the statements, “We charged that the amount of the Judgment by the Court in this case is irrational, illogical, and without support in the evidence or the law. [S]ince [defendants] say that Thompson agreed to charge an engineering fee which is in excess of that set out in the Judgment, it must be rendered upward. The only question on this appeal is: how much upward?” While Thompson’s briefs were perhaps inartful in that they did not state this point as a separate issue, we do think they were sufficient to apprise defendants and the appellate court that this aspect of the trial court’s findings was disputed on appeal. In fact, the point was argued extensively to us on certiorari the first time. Consequently, the Court of Civil Appeals erred when it stated on remand that it could not consider the issue as it was not presented in the original appeal.

Because this case has already spent considerable time before the appellate courts, the parties have asked us to dispense with a further remand, and to decide the sole remaining issue based on the arguments already presented. Accordingly, we proceed to consider whether the trial court’s judgment for $4,849.11 can be supported. The parties acknowledge that the judgment includes $697.25 Thompson advanced to Rowe Engineering Co. and $361.00 due to Thompson on a job to check the foundation, for a total of $1,058.25 undisputedly owed by Cit-moco to Thompson.

At this point it is settled that the parties’ contract called for a maximum price of $10,000. By the time the work was completed, Citmoco had paid Thompson $6,482.89. Thompson asserts that this figure included payments on two separate jobs: a preliminary survey and work order of August 30, 1973 ($1,934.89), and engineering fees covered by the disputed contract ($4,548.00). Citmoco asserts that the preliminary survey was also covered by the contract. Apparently the trial court agreed with Citmoco, thus arriving at a balance due on the contract of $3,517.11. Since the trial judge heard the evidence ore tenus his findings are favored with a presumption of correctness. Lipscomb v. Tucker, 294 Ala. 246, 314 So.2d 840 (1975). But, in this instance there is no evidence whatsoever to indicate that the preliminary survey was included in the contract. The preliminary survey was requested by Chamberlain, Cit-moco’s president, on Thursday, August 30, 1973, and was to be ready for a discussion between the parties on Tuesday morning, September 4, 1973. To accommodate Cit-moco’s time schedule and at Chamberlain’s request Thompson had to conduct test bor-ings and otherwise complete the preliminary survey over Labor Day weekend. At this point there was no agreement that Thompson would handle the actual engineering. On August 30, Thompson sent Citmoco an “acknowledgment of order” with a schedule of fees attached. In the discussion on Tuesday, September 4, 1973, at which the $10,000 contract was entered into, the preliminary work was never even mentioned. The conversation looked to the design and supervision of the earthwork, and foundation for Citmoco’s storage tank. Following this conversation Thompson submitted a second “acknowledgment of order” dated September 17, 1973, with a second fee schedule attached. The two orders carried separate ID numbers which were specifically referred to in Thompson’s periodic invoices. Fee schedules were sent only with the “acknowledgments of order,” not the periodic invoices. All of these materials show that Thompson was treating the work as two separate jobs. Citmoco, apparently, neither questioned this nor indicated that it viewed the preliminary survey as part of the $10,000 contract.

The possibility of a $10,000 maximum price contract was an affirmative defense which was not specially pled, but was tried by agreement of the parties, as the Court of Civil Appeals previously noted. 371 So.2d 35, at 37-38 (Ala.Civ.App.1977). As an affirmative defense, it was Cit-moco’s burden to prove the existence, and terms of the fixed-price contract. See Forbes & Carloss v. Plummer, 198 Ala. 162, 73 So. 451 (1916); Carolina-Portland Cement Co. v. Alabama Construction Co., 162 Ala. 380, 50 So. 332 (1909). Nevertheless, Citmoco presented no evidence whatsoever to show that the preliminary survey was considered a part of the $10,000 contract. This work was completed before any contract was ever discussed, but was simply not mentioned at the meeting between Chamberlain and Thompson on September 4. The only materials in evidence bearing on this point were Thompson’s “acknowledgments of order” which clearly showed that the preliminary survey was being treated as a separate job. Thus, the trial court’s finding that the preliminary survey was subject to the $10,000 maximum price contract was plainly and palpably erroneous and cannot be affirmed.

Because the preliminary survey cannot be included in the $10,000 maximum price contract, Citmoco, having paid only $4,548.00 on the contract, owes a balance of $5,452.00. Added to this is $1,058.25 admittedly owed by Citmoco, for a total of $6,510.25 due to Thompson. The cause is reversed and remanded to the Court of Civil Appeals so that they may enter a judgment in favor of plaintiff Vester J. Thompson, Jr., Inc. for $6,510.25 plus interest.

REVERSED AND REMANDED WITH DIRECTIONS.

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

MADDOX, SHORES and EMBRY, JJ., dissent.

ALMON, J., not sitting.


text:
    VESTER J. THOMPSON, JR., INC., a corporation, v. CITMOCO SERVICES, INC., a corporation.
    Civ. 989.
    Court of Civil Appeals of Alabama.
    March 7, 1979.
    Rehearing Denied April 4, 1979.
   On Remand from Supreme Court

BRADLEY, Judge.

Upon remand to this court by the Supreme Court of Alabama and at the direction of that court, the judgment of the trial court is reversed and one is here rendered in favor of plaintiff, Vester J. Thompson, Jr., Inc., and against Citmoco Services, Inc. for $6,510.25 plus interest.

Plaintiff, Vester J. Thompson, Jr., Inc., has filed a motion here asking this court to correct or delete a sentence from the opinion of the supreme court, restate certain findings of fact contained in this court’s original opinion, and to enter judgment in favor of plaintiff in the amount of $8,937.90.

In view of the specific mandate of the supreme court to enter judgment in favor of plaintiff and against defendant for $6,510.25 plus interest, this court has no alternative but to obey the directive of the supreme court.

MOTION DENIED.

REVERSED AND RENDERED.

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


author: PER CURIAM.

text:
    Ex parte Vester J. THOMPSON, Jr.
    78-471.
    Supreme Court of Alabama.
    May 11, 1979.
   PER CURIAM.

Writ denied.

TORBERT, C. J., and BLOODWORTH, FAULKNER, ALMON and EMBRY, JJ., concur.


author: WRIGHT, Presiding Judge.

text:
    Doug CIFERS v. Gerry COLE.
    Civ. 1759.
    Court of Civil Appeals of Alabama.
    May 16, 1979.
    Brian Dowling, Dothan, for appellant.
   WRIGHT, Presiding Judge.

Buyer recovered a verdict of $225 from seller in an action for fraud and deceit in the sale of an automobile. Seller appealed. We affirm.

Buyer filed suit for misrepresentation alleging that the seller had sold him an automobile with a used engine though representing that it was new. Trial later resulted in a judgment for buyer.

Buyer saw the seller’s newspaper advertisement offering for sale a 1971 GTO with new engine, new brakes, mag wheels, and AM-FM stereo tape deck. He testified that he took a look at the car and was told by seller the engine was new. He obtained financing and completed the purchase. The car broke down with an engine malfunction the same day. Buyer contacted seller and was told again that the engine was new and to take it to a mechanic at Dothan Lincoln-Mercury who would fix it, as it should still be under some type of warranty. Buyer learned that it was not a new engine and repair was refused.

The issue of a seller’s liability for misrepresentation in the sale of an allegedly new automobile is one of fact. Parker v. Taylor, 220 Ala. 69, 124 So. 199 (1929). The trial court sitting ore tenus heard the evidence in this case including the buyer’s testimony that the seller told him the engine was new. The judgment of the court is sufficiently supported by the evidence. Hall Motor Company v. Furman, 285 Ala. 499, 234 So.2d 37 (1970).

The trial court’s decree in favor of the buyer is affirmed.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


text:
    Thomas M. GALLOWAY v. STATE of Alabama ex rel. Charles H. PAYNE, Commissioner of Insurance.
    Civ. 1790.
    Court of Civil Appeals of Alabama.
    May 16, 1979.

      Mark J. Everest of Collins, Galloway & Smith, Mobile, for appellant.
    William A. McCrary and Bill Bradley of Henslee & Bradley, Gadsden, for appellee.
   BRADLEY, Judge.

This is an appeal from a judgment ordering the claim of Thomas M. Galloway (hereinafter Galloway) against Trustee Life Insurance Company to be treated as the claim of a “general creditor” without preference or priority. The trial court rendered this judgment after hearing oral testimony.

Galloway received a judgment in the amount of $4,000 plus costs against Trustee Life Insurance Company in Mobile Circuit Court on December 12, 1974. Judgment was based upon a promissory note. This judgment was filed and recorded on February 21, 1975. On January 2, 1975 the State of Alabama commenced delinquency proceedings against Trustee Life Insurance Company by filing a petition for an injunction and appointment of receiver. On February 22, 1975 the injunction was granted and Charles H. Payne, Commissioner of Insurance, was appointed receiver of all property, assets, and estate of Trustee Life Insurance Company. Galloway filed a claim against Trustee Life Insurance Company in the amount of his judgment on September 23, 1976.

On November 28,1978 the receiver filed a petition asking that Galloway’s claim along with others be received and allowed as a claim of a general creditor without any priority or preference under Code of Alabama 1975, § 27-32-37. This section provides:

Upon the issuance of a proper court order placing a domestic insurer in receivership or placing a foreign insurer in ancillary receivership for rehabilitation or liquidation, pursuant to this chapter or other insurance laws of Alabama, all beneficiaries of and all persons holding or owning a contract of insurance with such insurer shall be a preferred creditor of said insurer to the extent of the equity, cash value or other benefit then accrued, arising under the terms of such contract. With the exception of costs of administration of said receiverships, recorded tax liens and judgments obtained prior to initiation of delinquency proceedings, and secured creditors’ claims, no claim of a creditor shall be preferred over that of a policyholder of the insurer in receivership. Policyholders are hereby removed from the class of general creditors and all laws and court decisions in conflict herewith shall have no further application. [Emphasis added.]

Galloway objected to the petition, saying his claim was entitled to priority under § 27-32-37, such section “not requiring the recording of a judgment prior to Receivership Proceedings.”

The sole issue for review is whether a judgment obtained prior to initiation of delinquency proceedings and filed and recorded after the initiation of the proceedings is entitled to preference over the policyholders of the insurer in receivership under Code of Alabama 1975, § 27-32-37.

We do not review this case with any presumption in favor of the trial court, for we are concerned with construing Code of Alabama 1975, § 27-32-37, which is a question of law. Donnelly v. Doak, Ala., 346 So.2d 414 (1977); 2A Ala.Dig. Appeal & Error 931(2).

The primary construction problem involved in § 27-32-37 is whether the word “recorded” modifies judgments, as well as tax liens. We find that it does.

We note that Code of Alabama 1975, § 27-32-2 sets forth the purpose of the chapter containing § 27-32-37 and the construction thereof.

The purpose of this chapter is to promote effectiveness, economy and uniformity in the rehabilitation, reorganization, conservation and liquidation of insurers doing business in this state. It is intended that this chapter shall be liberally construed to the end so far as possible that the assets of such insurers shall be effectively conserved . . . . [Emphasis added.]

It has been said in Myers v. Protective Life Insurance Co., Ala., 342 So.2d 772 (1977) that Acts of Alabama 1975, Act No. 1040, which is the Act from which § 27-32-37 is derived “promulgate^] the public policy of this State of preferring policyholders over all other non-secured creditors.” Therefore, § 27-32-37 should be construed in accordance with its real intent and meaning and so as not to defeat the legislative purpose. Starlite Lanes, Inc. v. State, 283 Ala. 48, 214 So.2d 324 (1968).

We construe the section as providing only three categories which have priority status over the policyholders: (1) costs of administration of said receivership; (2) recorded tax liens and judgments obtained prior to initiation of delinquency proceedings; and (3) secured creditors’ claims.

Galloway urges in brief that the section does not require recording, or in the alternative, if recording is required, it is unnecessary to record before delinquency proceedings are initiated. We disagree and find the State’s argument that such a reading would result in the failure of proper notice to third parties, e. g. potential policyholders, that such a judgment exists, to be persuasive.

A judgment does not acquire any priority unless it is a lien. Without a lien, a judgment creditor stands as a general creditor. 65 Am.Jur.2d § 166 Receivers (1972).

Code of Alabama 1975, § 6-9-210 and § 6-9-211 deal with registration of judgments and the effect of such registration. Section 6-9-210 provides in part: “The owner of any judgment . . may file in the office of the judge of probate . a certificate of the clerk or register of the court by which the judgment was entered.” This certificate “shall be registered by the judge of probate in a book to be kept by him for that purpose, which said register shall also show the date of the filing of the judgment.”

The lien is established upon the filing of the certificate with the probate judge. Reuf v. Fulks, 219 Ala. 252, 122 So. 14 (1929). Section 6-9-211 provides in part: “The filing of said certificate of judgment, as provided in section 6-9-210, shall be notice to all persons of the existence of the lien thereby created.” Failure of the judge of probate to register or index the certificate filed makes him liable to a $200 penalty plus damages sustained by the aggrieved party. Code of Alabama 1975, § 6-9-212.

In the instant case, filing and recording did not take place until after the delinquency proceedings were initiated. The lien was thus established too late to be given any preference over policyholders; therefore, the trial court was correct in regarding the claim as that of a general creditor. The judgment is affirmed.

AFFIRMED.

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


text:
    Samuel LITTLEFIELD v. John L. CUPPS.
    Civ. 1812.
    Court of Civil Appeals of Alabama.
    May 16, 1979.

      William E. Mitch of Cooper, Mitch & Crawford, Birmingham, for appellant.
    Courtney H. Mason, Jr. of Norman, Fitzpatrick & Wood, Birmingham, for ap-pellee.
   WRIGHT, Presiding Judge.

This is an appeal from a judgment granting a Rule 60(b) motion to set aside a judgment. We affirm.

As a preface to our opinion we explain that the 60(b) motion was granted upon the ground that the judgment sought to be set aside was void. We have previously said that the granting of a Rule 60(b) motion is an interlocutory order and not appealable. Sullivan v. Speedway Oil Company, 352 So.2d 1383 (Ala.Civ.App.1977). However, we consider that when the motion to set aside is granted upon the ground that the original judgment was void for want of jurisdiction or authority, the grant of the motion finally disposes of the case and should be appealable. 11 Wright & Miller, § 2871, 260 n. 95.

The undisputed facts from which this case arose are as follows: Plaintiff filed suit against defendant for defamation. Defendant was served but did not answer or appear. Default in favor of plaintiff was entered by the court with leave to prove damages in accordance with Rule 55(b)(2) ARCP. The date was September 13, 1974. Plaintiff died November 15, 1974. On July 25, 1975, in response to a motion to substitute filed in accordance with Rule 25, ARCP, the court entered an “Order of Revi-vor,” ordering the cause to be revived with the administratrix of the deceased as plaintiff and authorizing her to proceed to a final determination. Service of the motion to substitute by mail failed because defendant had changed residence. On August 18, 1978, final judgment in the amount of $1,000 was entered in favor of the plaintiff. Execution was attempted. On December 14, 1978, defendant filed a Rule 60(b) motion to set aside the judgment. The matter was heard by a judge other than that who entered the previous orders. The court granted the motion to set aside on the ground that the judgment of August 18, 1978, was void in that there was no final judgment at the time of the death of plaintiff but only an action pending which by statute (§ 6 5-462, Code of Alabama (1975)) did not survive the death of plaintiff. Plaintiff appeals. The issue presented for review is: Does a judgment by default with leave to prove damages entered in an action for “injuries to the reputation” survive the death of the plaintiff so as to permit revival in favor of plaintiff’s personal representative?

Plaintiff concedes that had there been no judgment in the case, the “action” would not have survived the death of her intestate.

It is plaintiff’s argument that the “survival” statute (§ 6- 5 462) is not the applicable statute, but rather § 6-9-194, which is a revival of judgment statute. Therefore, we need only consider whether § 6-9-194 applies.

Section 6 9 ■ 194 is one of seven statutes comprising Article 8 of Chapter 9 in .Title 6 of the 1975 Code. It is very clear that each of these statutes relates to the duration and enforcement of judgments. The judgments referred to therein are those capable of being executed — /. e., those which are complete, entire, final, in which both liability and damages have been finally determined. Section 6 9 190 provides that a judgment cannot be revived after twenty years from its entry. Section 6-9-191 provides for presumption of satisfaction of a judgment if ten years have elapsed since its entry or since the date of the issuance of the last execution. Section 6-9 192 bars issuance of an execution on a judgment on which no execution has been sued out within ten years of its entry until there has been a revivor under the rules of procedure (formerly a writ of scire facias — now motion to revive — Rule 81(3), ARCP). Section 6-9-193 provides for issuance of execution on judgment in favor of the personal representation after death of plaintiff without a revival. Thus, if there had been a judgment in this case, final and capable of execution prior to the death of the plaintiff, there would have been no necessity of revival by the personal representative to secure enforcement.

Section 6-9-194 has no application to “survival” of a judgment, or substitution of a personal representation in lieu of a deceased plaintiff for completion of the matter in court as was done in this case. It merely gives to the personal representative the right to revive a judgment upon which there has been no execution in ten years so that execution may issue. That is the same right which is given a plaintiff under § 6-9-192. In seeking such revival, the movant would have the burden of overcoming the presumption of satisfaction declared in § 6-9-191.

It is readily seen when considered in context of the whole of Article 8, that § 6-9-194 has no application at all to the matter. It applies only to reviving for the purpose of securing execution of a final judgment upon which no execution was previously issued for a period of ten years. The default in this case was not even a judgment capable of “revival.”

The trial court correctly stated in its judgment that all the matters in issue in plaintiff’s action had not been determined at the time of his death and the action was abated thereby under the provisions of § 6-5 — 462. We commend the court for its written opinion and we affirm it.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


text:
    H. Keith PITTS v. Hal SMITH, as Chairman of the Lee County Commission.
    Civ. 1885.
    Court of Civil Appeals of Alabama.
    May 16, 1979.
    James B. Sprayberry of Gentry, Spray-berry & Kent, Auburn, for appellant.
    J. Tutt Barrett of Samford, Denson, Horsley, Pettey & Martin, Opelika, for ap-pellee.
    James W. Webb and Dan E. Schmaeling, Montgomery, for Association of County Commissions, amicus curiae.
   PER CURIAM.

This is an appeal from a refusal of the Circuit Court of Lee County to award attorney fees to plaintiff from county funds.

Plaintiff petitioned the Circuit Court of Lee County for a writ of mandamus to require the chairman of the Lee County Commission to pay attorney fees for services rendered in the defense of indigent juveniles. Plaintiff asserted that pursuant to § 12-15-10, Code of Ala.1975, the county was liable for such fees. Upon the circuit court’s denial of plaintiff’s writ, this appeal was taken.

The dispositive issue on appeal is whether the trial court erred in determining that under § 12-15-10, attorney fees in juvenile proceedings are excluded from the enumerated expenses for which a county is liable. We are required to hold that the trial court did err, and reverse and remand.

Our supreme court on May 11, 1979 held that “individual counties are responsible for the payment of attorney fees incurred by indigent defendants in juvenile proceedings under Code of Ala.1975, § 12-15-10.” Lewis v. Hitt, 370 So.2d 1369 (Ala.1979). Inasmuch as Lewis, supra, is dispositive of the instant controversy, even though we may disagree with Lewis, we have no alternative but to reverse this case and remand it for proceedings not inconsistent with the holding in Lewis. See § 12-3-16, Code of Ala. 1975.

REVERSED AND REMANDED.

All the Judges concur.


text:
    Shirley Couch KIRK v. Tommy J. KIRK.
    Civ. 1696.
    Court of Civil Appeals of Alabama.
    May 23, 1979.
    Fred Ray Lybrand of Lybrand, Sides, Hamner & Oglesby, Anniston, for appellant.
    James S. Hubbard, Anniston, for appel-lee.
   WRIGHT, Presiding Judge.

This is a divorce case. The wife appeals from the trial court’s division of property. We affirm.

The parties were married on December 31, 1975, and separated in May of 1978. At the time of marriage, the husband was fifty-eight years old and the wife forty-two. When the parties married they first lived in a home in which the husband retained a one-half interest with a former wife. That home was sold in June 1977. The husband invested his share of the proceeds from the sale in the purchase of a mobile home located on a one-acre plot. Later, husband and wife purchased, as joint tenants, an adjoining forty-seven acre tract. The husband has made mortgage payments on the property throughout the parties’ marriage in the amount of $222.37 monthly.

The wife testified that she brought a sewing machine, den suite, desk, and television to the marriage. The parties’ remaining furniture came from the husband. The wife also owned a 1972 Gran Torino automobile given to her by the husband before their marriage.

The evidence indicates that the husband provided the parties’ primary support during their brief marriage with the wife cashing the husband’s checks and managing all the money.

After oral hearing, the trial court granted a divorce on the ground of incompatibility. The wife was given $1,500 in lieu of a division of common property. She was also given the personal property that she brought into the marriage. The husband was awarded all other personal property and the real property purchased during the marriage.

The rule is well established that we review a judgment by a trial court in divorce cases with a presumption of correctness where that court has heard the testimony and viewed the witnesses. Weed v. Weed, 358 So.2d 459 (Ala.Civ.App.1978). The division of property, after consideration of equities and contribution by the parties, is a matter for the discretion of the trial court, and will not be disturbed on appeal except upon a showing of palpable abuse. Caldwell v. Caldwell, 54 Ala.App. 479, 309 So.2d 833 (1975).

The trial court stated from the bench that it was going to design a decree so that neither party would be enriched or impoverished by a marriage of such short duration involving people of such a mature age. We find no abuse of discretion in the judgment. It is affirmed.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


text:
    Nannie Mae T. CAMPBELL v. Robert W. CAMPBELL.
    Civ. 1714.
    Court of Civil Appeals of Alabama.
    April 4, 1979.
    Rehearing Denied May 16, 1979.

      Thomas Reuben Bell, Sylacauga, for appellant.
    C. W. McKay, Jr., Sylacauga, for appel-lee.
   BRADLEY, Judge.

The parties were divorced on March 29, 1978. By an agreement incorporated into the March 29 decree the parties’ real and personal property was divided. Under this agreement the wife deeded to the husband her one-half interest in the parties’ jointly owned home in exchange for other property-

The parties reconciled and were remarried on May 4, 1978. The wife moved back into the parties’ home, and on May 8 the husband conveyed a deed to her granting the wife a one-half interest in the home as a joint tenant with right of survivorship. The reconciliation proved short-lived. The husband moved out of the home in September and filed for divorce in October 1978 on the ground of incompatibility. The husband further alleged that the wife had fraudulently induced him to deed over a one-half interest in the home and requested that the court set aside that conveyance.

The wife, in her answer, denied any fraud. She also counterclaimed for divorce, requesting alimony and a division of property-

After a hearing at which the husband and wife were the only witnesses, the trial court granted the divorce. Regarding the conveyance by the husband of a one-half interest in the home to the wife, the court found: that the parties had entered into a marital agreement before their remarriage that their financial position would be restored to the status in which both parties stood before their first divorce in March 1978; that m accordance with this agreement the husband had conveyed the one-half interest in the home to the wife; that the wife had not performed her part of the agreement; and that the conveyance by the husband was therefore void. The court divested the wife of any interest in the home and ordered her to vacate the premises.

Regarding the wife’s petition for a division of property and alimony, the court found: that there had been no material change in the status of the parties since their first divorce and that each should therefore retain the property received under the settlement agreement incorporated within the March 29 decree. The court ordered no further division of property and denied the wife’s petition for alimony.

In briefs the wife concedes that there was an agreement to “put everything back like it was” before the parties’ first divorce. However, the wife contends that this agreement was wholly oral and therefore void under the statute of frauds. Code of Alabama 1975, § 8-9-2(4). The wife also contends that the agreement was made after, and not prior to, their marriage and that the conveyance by the husband must therefore be presumed a gift. Regarding the court’s order divesting her of any interest in the home, the wife contends that this action was beyond the jurisdictional powers of the court. Finally, the wife contends that the trial court’s refusal to grant her alimony and a further division of property was an abuse of discretion.

This court is faced with two issues. The first is whether the findings and order of the trial court regarding the wife’s one-half interest in the home were within the court’s jurisdictional powers. We find that they were. The second issue is whether the trial court abused its discretion in refusing to award alimony or a further division of property to the wife. We find no abuse of discretion. We therefore affirm.

We note initially that the wife raises the statute of frauds for the first time on appeal. Her contention that the oral marital agreement between the parties violates the statute and is void is not well taken. It is the long established law in this state that a defense of the statute of frauds must be raised below in the pleadings or by motion or it is considered waived. Tidmore v. Handy, 277 Ala. 20, 166 So.2d 855 (1964); Spruiell v. Stanford, 258 Ala. 212, 61 So.2d 758 (1952). ARCP 8(c). If the contract or agreement is admitted or satisfactorily proved, it will stand. Spruiell, supra; Shakespeare v. Alba, 76 Ala. 351 (1884).

In the instant case we note that the record is devoid of any pleading or motion by the wife raising the statute. We note that the wife, in her brief, admitted to the substance of the agreement. Finally, we note that both parties testified that the agreement was to “put everything back like it was” before their first divorce. The only disputed fact was when this agreement was reached. The husband testified that the parties agreed before their remarriage. The wife stated that it was some three to four weeks after the second marriage. The trial court evidently accepted the husband’s testimony. We make our review in this regard based upon the principle that where there is disputed evidence and the trial court hears testimony ore tenus, his findings of fact are presumed correct. Phillips v. Phillips, Ala.Civ.App., 344 So.2d 786 (1977).

We will therefore not overturn the trial court’s finding that the parties had a prenuptial contract to, in effect, reverse the settlement agreement in their first divorce.

We are not impressed with the wife’s next contention that the deed by the husband is to be strictly scrutinized and must be presumed a gift. Although it is the law generally that a conveyance of real property from the husband to the wife is presumed a gift, Cone v. Cone, Ala., 331 So.2d 656 (1976) citing Bogert, Trusts & Trustees § 459 (2d ed. 1964); Roubicek v. Roubicek, 246 Ala. 442, 21 So.2d 244 (1945), this presumption may be rebutted by proof of the real intent of the parties. Cone, supra. As we have noted, there was ample evidence in the record to support the trial court’s finding that the deed from the husband was not a gift but rather one step in performing his part of a prenuptial agreement.

Such contracts between husband and wife, whether made before or after marriage, are recognized as valid in this state. Code of Alabama 1975, § 30-4-9; Allison v. Stevens, 269 Ala. 288, 112 So.2d 451 (1959); Norrell v. Thompson, 252 Ala. 603, 42 So.2d 504 (1949). While it is true that these agreements are to be subjected to close scrutiny, § 30-4-9; Hall v. Cosby, 288 Ala. 191, 258 So.2d 897 (1972); Hamilton v. Hamilton, 255 Ala. 284, 51 So.2d 13 (1951), the agreement in the instant case withstands such an examination. As we have noted, it was the admission of the wife and the uncontroverted testimony of the parties that they had an agreement to restore their financial and property interests to the status which existed prior to their first divorce. An examination of the settlement agreement in that first divorce reveals that the husband acquired the wife’s one-half interest under that agreement. This is more than sufficient evidence to support the trial court’s findings that the conveyance by the husband was in part performance of a contract. Clearly, the presumption which the wife asserts does not apply here.

Furthermore, the wife’s argument in this regard has little place in an equity case. The wife cannot in one breath admit to a contract and in the next breath ask this court to apply an equitable presumption which ignores that contract.

We come now to the wife’s contention that the trial court’s findings regarding that agreement and its order that the wife convey the property back to the husband were matters beyond the scope of its powers when sitting as a court of equity in a divorce case. We must disagree.

We have often held in the past that an equity court has broad powers to grant collateral relief both legal and equitable in a divorce case. This is especially true where, as here, one party to the divorce has invoked the court’s jurisdiction by requesting the relief granted, both parties are before the court and the rights of third parties are not involved. Owens v. Owens, 281 Ala. 239, 201 So.2d 396 (1967); Speegle v. Speegle, 251 Ala. 525, 38 So.2d 339 (1949); Roberts v. Roberts, 247 Ala. 302, 24 So.2d 136 (1945); Prosch v. Prosch, 47 Ala.App. 33, 249 So.2d 855 (1971). Therefore, the court’s determination of the legal matters in the case, i. e. the existence of a contract and the wife’s breach of that contract, and the grant of equitable relief, i. e. recission and restitution, were well within its general equitable powers.

We must disagree with the wife’s contention that the remedy granted by the trial court in this case violates the rule that a subsequent divorce does not alone void a prenuptial contract. Cryar v. Cryar, 243 Ala. 318, 10 So.2d 11 (1942). This case is clearly distinguishable from Cryar. In Cryar the prenuptial contract was fully executed; in the instant case the contract was only partly performed. The trial court’s order of recission and restitution does not appear unreasonable to this court in view of the alternative contractual remedies. Damages for the wife’s nonperformance were not sought by the husband, and an order of specific performance would be both senseless and futile.

Finally, we must disagree with the wife’s contentions that divestiture of her one-half interest in the home was alimony to the husband and that the court’s refusal to grant her alimony was an abuse of discretion.

The trial court’s order divesting the wife of her one-half interest in the .home, while it was inextricably tied to the divorce proceedings, was essentially a remedy for breach of contract and not a division of property or award of alimony. This divestiture left the parties in essentially the same position regarding their property and finances as they stood after their first divorce — a position which they reached by agreement. The trial court found that there had been no material change in the health or finances of the parties in the seven and one-half months which elapsed between their first and second divorces. The record supports this finding. With this in mind, and with due regard to the broad discretion invested in the trial court in matters of alimony and division of property, Shirley v. Shirley, Ala.Civ.App., 350 So.2d 1041, cert. quashed, Ala., 350 So.2d 1045 (1977), we find no abuse of discretion regarding the trial court’s refusal to award alimony to the wife or make a further division of property.

In view of our holding, it is unnecessary to consider the wife’s contention that the husband did not prove fraud in the inducement regarding the conveyance of the home.

For the reasons we have stated, the decision of the trial court is affirmed.

AFFIRMED.

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

On Rehearing

The wife contends that we are in error in rejecting her defense of the statute of frauds because the statute was riot raised in the pleadings. The wife contends that the prenuptial contract which was the basis of the trial court’s decision was not pleaded by the husband in his complaint, and hence there was no reason for the wife to raise the statute of frauds as a defense to this contract in her answer. We agree with the wife that the failure to plead the statute of frauds should not be fatal to her case. However, we find that the statute is nevertheless not a valid defense for.the wife. We reach this conclusion by an analysis of the facts, the purpose of the statute of frauds, and the nature of the case before us.

As we noted in our opinion, both parties testified to the substance of the parties’ agreement. Except as to the time this agreement was reached, the testimony was not conflicting. No objection was made to any of the testimony about an oral agreement. Finally, in briefs, counsel for the wife specifically admits to the existence and the substance of the agreements. In the face of these facts, the purpose of the statute of frauds is completely negated. The purpose of the statute is to prevent fraud and perjury in actions brought on contracts. Port City Construction Co. v. Henderson, 48 Ala.App. 639, 266 So.2d 896 (1972). Clearly, there is little danger of fraud or perjury where both parties admit to the substance of the contract.

Lastly, the determination of whether the statute of frauds is available as a defense in this case must be made in light of the fact that this is an equity case. It is an established principle that equity is concerned with substance and not form and considers done that which ought to be done. Newton v. Roe, 290 Ala. 191, 275 So.2d 135 (1973). To allow the wife to raise the statute of frauds in the face of the admitted facts in this case would clearly be placing form over substance. Also, to paraphrase a statement in our original opinion, the wife cannot in an equity case admit to the existence of a legal reality, in this case the existence and substance of the contract, and yet ask this court to apply a rule of law, the statute of frauds, which ignores that reality.

OPINION EXTENDED.

APPLICATION FOR REHEARING OVERRULED.

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


author: TYSON, Judge.

text:
    Walter HILL v. STATE.
    6 Div. 670.
    Court of Criminal Appeals of Alabama.
    Oct. 31, 1978.
    Rehearing Denied Nov. 21, 1978.
    William A. Short, Jr. and Jackie M. McDougal, Bessemer, for appellant.
    William J. Baxley, Atty. Gen., and Willis E. Isaac, Asst. Atty. Gen., for the State, appellee.
   TYSON, Judge.

Walter Hill was charged by a four-count indictment under Alabama’s Death Penalty Statute, Act No. 213, General Acts of Alabama, Title 15, Sections 342(3)-342(ll), Code of Alabama 1940, as amended, 1975, for the first degree murder of Willie Mae Hammock, John Tatum, Jr., and Lois Gene Tatum, by shooting them with a pistol. The jury found the appellant guilty as charged and fixed punishment at death by electrocution.

Thereafter the trial judge conducted a post conviction hearing on the aggravating and mitigating circumstances, as required by law. He then set punishment at death by electrocution.

I

The appellant contends that the trial court erred in granting the State’s challenge for cause as to two prospective jurors.

The pertinent statute covering these challenges provides:

“57. Additional ground of challenge in certain cases in favor of state. — On the trial for any offense which may be punished capitally, or by imprisonment in the penitentiary, it is a good cause of challenge by the state that the person has a fixed opinion against capital or penitentiary punishments, or thinks that a conviction should not be had on circumstantial evidence; which cause of challenge may be proved by the oath of the person, or by other evidence.” Title 30, § 57, Code of Alabama 1940, Recompiled 1958, now § 12-16-152, Code of Alabama 1975.

In Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776, and recently in Davis v. Georgia, 429 U.S. 122, 97 S.Ct. 399, 50 L.Ed.2d 339 (1976), the United States Supreme Court held that unless a venireman is “irrevocably committed, before the trial has begun, to vote against the penalty of death regardless of the facts and circumstances that might emerge in the course of the proceedings,” 391 U.S. at 522, n. 21, 88 S.Ct. at 1777, he may not be excluded.

The voir dire of the two jurors is as follows (R. pp. 19-25):

“BY DAN REYNOLDS:
“Judge, may I ask just a couple of more questions?
“THE COURT: Yes.
“MR. REYNOLDS: The last question — so that I might know exactly where you ladies and gentlemen stand; I believe he asked the question was if at the end of the trial you were convinced to the degree that the Defendant was guilty, in fact, of murder of three people. All right. If that were so, and you were convinced to that degree of proof, the Judge, I believe, will instruct you to bring a verdict that we the jury find the Defendant guilty and sentence him to the death in the electric chair.
“Is there anyone here that couldn’t do that?
“JUROR SAMUEL FORD: I cannot — no matter what he did, you couldn’t send him. I would give him life but I would not send him to the electric chair.
“MR. REYNOLDS: Judge, let me challenge Mr. Ford for cause.
“MR. McDOUGAL: What is your name, sir?
“JUROR SAMUEL FORD: Samuel Ford.
“MR. McDOUGAL: With your attitude, about the death penalty, you would automatically vote against a finding of guilty?
“JUROR SAMUEL FORD: If he is guilty for killing three people, I would give him life, but not the electric chair.
“MR. REYNOLDS: We ask that he be challenged for cause.
“THE COURT: Sir, you would have to be excused because the only penalty that can be rendered in this case, in the event the Defendant is found guilty, is death.
“If you cannot do that, then, of course, you can’t sit on this jury because that is what the law says.
“So, if you will step back in the back of the Courtroom.
“MR. McDOUGAL: We very respectfully accept, your Honor.
“MR. REYNOLDS: Mr. Hatcher, sir, let me ask you a couple of questions. I believe the Judge will instruct you — the law is that if you are convinced and proof acquired beyond a reasonable doubt and to a moral certainty that this man is guilty as charged, then the law is that the only form of punishment available to you or to the jury is death.
“JUROR IZESH HATCHER: You want an honest answer?
“MR. REYNOLDS: Yes, sir.
“JUROR IZESH HATCHER: I don’t believe I could.
“MR. McDOUGAL: Judge, may I ask a question:
“MR. REYNOLDS: Jack, I have one more.
“In other words, your reservation against capital punishment — you couldn’t make an impartial decision as to his guilt or innocence?
“JUROR IZESH HATCHER: To the electric chair, no, sir.
“MR. REYNOLDS:- Would you be opposed to doing that? And, I apologize for asking this question, but, it is just the way that I have to do it — are you in opposition to capital punishment; you don’t believe in that?
“JUROR IZESH HATCHER: That is just my feeling.
“MR. REYNOLDS: What I am asking you, is that feeling so strong that if you had two choices, one to convict him, if you believe from the evidence that he was guilty, and impose a death penalty, or if you had to vote to turn him loose; would you do that?
“JUROR IZESH HATCHER: I wouldn’t turn him loose.
“MR. REYNOLDS: What if the only two choices was death or turn him loose, and you were convinced that he was guilty?
“Do you believe that the hardness of that decision would interfere with you giving the Defendant and the State of Alabama a fair trial?
“JUROR IZESH HATCHER: Yes.
“MR. McDOUGAL: Judge, may I ask a question?
“THE COURT: Yes.
“MR. McDOUGAL: What is you name, sir?
“JUROR: Mr. Hatcher.
“MR. McDOUGAL: Now, are you saying that due to your attitude about the death penalty that you would automatically vote that he was not guilty regardless of what the evidence was?
“JUROR IZESH HATCHER: Well—
“MR. McDOUGAL: Sir?
“JUROR IZESH HATCHER: That is hard to say.
“MR. McDOUGAL: All right. Then you just have some mixed emotions about it?
“JUROR IZESH HATCHER: That is right.
“MR. McDOUGAL: Is that what you are telling us?
“JUROR IZESH HATCHER: Yes.
“MR. McDOUGAL: You would have trouble?
“JUROR IZESH HATCHER: Yes, sir.
“MR. McDOUGAL: But, you are not saying that you would automatically vote against a sentence of guilt or a finding of guilt because of the death penalty?
“JUROR IZESH HATCHER: No.
“MR. McDOUGAL: All right, sir.
“THE COURT: The Court doesn’t understand what this witness has said.
“MR. McDOUGAL: Perhaps to clarify— Mr. Hatcher, I apologize, but we have just got to know. It is a hard thing to get to. You have expressed that your personal opinion is, and I respect that opinion that you just don’t believe in the electric chair as a form of punishment; is that right?
“JUROR IZESH HATCHER: That is right.
“MR. McDOUGAL: If you were selected to serve as a juror you would take an oath and fairly try the evidence, return a verdict based upon the evidence that you hear?
“If you hear beyond a reasonable doubt and to a moral certainty that Walter Hill is guilty of murder of three people, could you as a juror impose a death penalty?
“JUROR IZESH HATCHER: I don’t think I could.
“MR. REYNOLDS: Judge, we ask he be challenged for cause.
“Thank you, sir.
“THE COURT: Step down.
“MR. McDOUGAL: Judge, we would respectfully accept it.
“THE COURT: All right.
“MR. REYNOLDS: Ladies and gentlemen, I realize that is a difficult question. Mrs. Bynum and Mrs. Cain, you ladies heard all of the questions. You don’t have any answers to this point?
“JUROR NELL CAIN: No.
“JUROR SANDRA BYNUM: No.
“MR. REYNOLDS: Okay. Just to make sure, since a couple of jurors have had— maybe the rest of you have, too. Is there anyone here now that has a feeling of opposition to death as a form of punishment in a criminal case?
“I think you understand that if you are convinced to a degree of proof required by law- — that is, beyond a reasonable doubt, and to a moral certainty that this Defendant is guilty as charged in the indictment. Now, the only sentence available to you is a sentence of death.
“Thank you.
“MR. McDOUGAL: Judge, we would like to challenge for cause Pete Brown. He stated that if he was found guilty of murder, he believes that he wouldn’t be put to death.
“THE COURT: Are we talking about Mr. Brown?
“MR. McDOUGAL: Yes.
“THE COURT: Would you deny?
“MR. REYNOLDS: We consider it.
“MR. McDOUGAL: We challenge the jur- or, Pete Brown, for cause because he stated that if he found a person guilty of killing three people, he believed he should be put to death and the Judge ruled.
“THE COURT: Overruled.
“MR. McDOUGAL: And, we except.
“END OF JURY VENIRE.”

The Supreme Court of Alabama in Liddell v. State, 287 Ala. 299, 251 So.2d 601 (1971) determined that case fell within the influence of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 1776; and Boulden v. Holman, 394 U.S. 478, 89 S.Ct. 1138, 22 L.Ed.2d 433.

In Liddell, supra, the court stated:

“The doctrine of Witherspoon and Boul-den, supra, is to the effect that a simple negative answer to a general question addressed to a prospective juror, as to any ‘conscientious scruples’ or ‘opposition’ or ‘fixed opinion’ against capital punishment, is insufficient to excuse such jurpr upon a challenge because of such belief, opposition, or fixed opinion. Such venireman must be further examined to sufficiently show that he would automatically vote against the imposition of the death penalty no matter what the evidence introduced at the trial might reveal. Otherwise it cannot be assumed such would be his position.
“The court in the course of its opinion in Witherspoon, supra, enunciated its conclusion in unmistakable language as follows:
“ ‘We hold that a sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction. No defendant can constitutionally be put to death at the hands of a tribunal so selected.’ ”

This Court cannot determine from the colloquy hereabove set forth whether or not the two challenged jurors “believed” in capital punishment, or having such belief that they would be “irrevokably committed before the trial has begun to voté against the death penalty, regardless of the facts and circumstances that might emerge” from the evidence in the cause.

Accordingly, this cause is remanded to the Circuit Court with the directions that a further hearing be conducted on the issue of excusal of the two veniremen herein mentioned, and the evidence therein developed, to clearly establish these two jurors’ beliefs and views.

The trial court is further instructed that the defendant and his attorneys be present when the questioning of the challenged veniremen takes place, and that such examination take place in their presence, with full right of cross-examination.

The trial court is further instructed that such hearing be conducted as speedily as is feasible, and that a full record be made thereof, such supplemental transcripts of such hearing, together with the trial court’s findings and conclusions on the evidence adduced, and that a transcript of these proceedings under the seal of the clerk be promptly forwarded to this Court.

This case is hereby remanded with the foregoing directions to the Circuit Court of Jefferson County, Bessemer Division, for further proceedings in accordance with this opinion.

See also Mathis v. State, 288 Ala. 464, 262 So.2d 287 (1972).

REMANDED WITH DIRECTIONS.

All the Judges concur.

      . The Death Penalty Act is now 13-11-2 through 13-11-9, Code 1975.


text:
    Ex parte STATE of Alabama, ex rel. ATTORNEY GENERAL.
    78-142.
    Supreme Court of Alabama.
    Jan. 19, 1979.
   FAULKNER, Justice.

WRIT DENIED.

TORBERT, C. J., and BLOODWORTH, ALMON and EMBRY, JJ., concur.