text:
    Ella Lee TAYLOR and Deborah Lynn Taylor v. The BIRMINGHAM NEWS COMPANY et al.
    SC 1716.
    Supreme Court of Alabama.
    Jan. 7, 1977.

      Leo E. Costello, Birmingham, for appellants.
    Charles L. Robinson, Birmingham, for ap-pellees.
   HEFLIN, Chief Justice.

The plaintiffs-appellants are a mother, Ella Lee Taylor, and her daughter, Deborah Lynn Taylor, whose suit arises out of their activities as paper carriers of The Birmingham News. Their complaint contained the following grounds: (1) Fraud; (2) Deceit; (3) Wrongful interference with contract, and (4) Champertous interference with a contract. The court in its oral charge limited the jury’s deliberation to wrongful interference with contract, and the jury returned a verdict for the Taylors and awarded damages of $12,500. The defendants, Birmingham News Company and Willis Saucier, filed a motion for judgment n.o.v. or, in the alternative, a motion for a new trial. The trial court took the motion for new trial under advisement, and on January 28, 1976 issued the following order:

“January 28, 1976. The submission made on January 9, 1976, of the above and foregoing motion having been duly considered by the court, the court is of the opinion that the verdict of the jury awarding plaintiff damages in this case is excessive by $9,500.00.
“Wherefore, it is considered, ordered and adjudged by the court, that the above and foregoing motion be, and the same is hereby granted, unless the plaintiff shall file in this court, on or before February 6, 1976, an instrument in writing remitting all damages in excess of $3,000.00; and agreeing to a reduction of the judgment to $3,000.00.
“Jurisdiction of this motion is hereby retained for all proper purposes.”

After the Taylors failed to file a remitti-tur, the trial court vacated the jury’s verdict and granted the defendant’s motion for a new trial. The Taylors appeal the trial court’s order granting the new trial.

It is the statutory law in Alabama that either party in a civil case in circuit court has a right of appeal from the court’s decision of either granting or refusing a motion for new trial. Title 7, § 764, Code of Alabama 1940 (Recompiled 1958). This statutory right of appeal was not disturbed by the adoption of the Rules of Appellate Procedure. See Rule 1, ARAP.

This court on many occasions has stated that it will not reverse a trial judge’s order granting a new trial unless the evidence plainly and palpably supports the jury’s verdict or plainly and palpably shows the trial court was in error. See, e.g., Hargrave v. Davis-Hunt Cotton Co., 294 Ala. 697, 321 So.2d 178 (1975); Kennedy v. General Transport Co., 293 Ala. 455, 304 So.2d 896 (1974).

The granting or denying of a motion for a new trial is a matter resting primarily in the discretion of the trial judge and the trial judge’s action carries with it a presumption of correctness. Hubbard Bros. Const. Co. v. C. F. Halstead Cont., Inc., 294 Ala. 688, 321 So.2d 169 (1975); Johnson v. Hodge, 291 Ala. 142, 279 So.2d 123 (1973).

In this case the trial judge found that the jury verdict of $12,500 was excessive by $9,500. The evidence adduced at trial indicated that the actual damages suffered by the appellants was approximately $250.

This court has carefully reviewed the record in this case and cannot conclude that the trial court committed reversible error. Accordingly, this cause is due to be affirmed.

AFFIRMED.

MADDOX, FAULKNER, SHORES and BEATTY, JJ., concur.


source: Caselaw Access Project

author: ALMON, Justice.

license: Public Domain

text:
    Clara SKILLMAN and Julius Eugene Skillman, Sr. v. FIRST STATE BANK OF ALTOONA, Alabama, a Banking Corporation.
    SC 2034.
    Supreme Court of Alabama.
    Jan. 7, 1977.
    Myron K. Allenstein, Gadsden, for appellants.
    William D. Russell, Jr., Dortch, Wright & Ford, Gadsden, for appellee.
   ALMON, Justice.

Clara Skillman and Julius Eugene Skill-man, Sr., appellants, sued the First State Bank of Altoona, appellee, for wrongfully garnishing $956.34 from their joint account in the First Alabama Bank of Gadsden. The trial court granted summary judgment for appellee. Central to the case is the res judicata effect of a prior default judgment in favor of appellee and a subsequent hearing on the default judgment.

On January 2, 1975, appellee instituted suit against Mrs. Skillman for a debt owed appellee. The trial judge granted a default judgment in favor of appellee for $2,904.35 on February 5. A writ of execution was issued March 19 and returned July 3 marked, “No Property Found.” The trial court issued a writ of garnishment to First Alabama Bank of Gadsden on September 5. On September 12 First Alabama paid the contents of a joint account held by Mr. and Mrs. Skillman to the clerk of the trial court who released the proceeds to appellee on September 23. On October 3 Mrs. Skillman filed a motion to set aside the default judgment. After a hearing held December 19 the court denied the motion. There was no appeal from this action of the court.

On February 9, 1976, the Skillmans filed a complaint alleging that (1) the appellee wrongfully took the $956.34 from appellants’ joint account, (2) the garnishment was made without probable cause, willfully, and/or maliciously, and (3) the appellants suffered certain damages as a result of appellee’s willful breach of the “Mini Code of Alabama” (Tit. 5, §§ 316-341, Code of Alabama 1940, Recompiled 1958, 1973 Cum. Supp.).

Appellants contend that the complaint states a claim maturing after Mrs. Skillman was served in the earlier suit, thus, falling within the permissive counterclaim rule of Rule 13(e) of the Alabama Rules of Civil Procedure (ARCP), rather than the compulsory counterclaim rule of Rule 13(a). Rule 13 reads in pertinent part as follows:

“(a) Compulsory Counterclaims. A pleading shall state as a counterclaim any claim which at the time of serving the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction.
“(e) Counterclaim Maturing or Acquired After Pleading. A claim which either matured or was acquired by the pleader after serving his pleading may, with the permission of the court, be presented as a counterclaim by supplemental pleading. . . . ” Rule 13, ARCP.

Appellants are correct in their contention as to counts 1 and 2. A claim based on a garnishment made maliciously, willfully, and without probable cause states a cause of action maturing after the default judgment was entered. See Standard Sanitary Mfg. Co. v. Benson Hardware Co., 225 Ala. 412, 143 So. 570 (1932). Moreover, the wrongfulness of the garnishment could not have been properly considered at the hearing on Mrs. Skillman’s motion to set aside the default judgment.

However, the summary judgment as to counts 1 and 2 is correct, though for reasons other than res judicata. While abuse of the garnishment process may lead to a cause of action (Benson v. McCoy, 36 Ala. 710 (1860); Brown v. Master, 104 Ala. 451, 16 So. 443 (1894); Liversage v. Gibson, 222 Ala. 672, 133 So. 715 (1931); Tarver v. Household Finance Corporation, 291 Ala. 25, 277 So.2d 330 (1973)), the possibility of abuse was greatly lessened when Tit. 7, §§ 996-1000, Code, supra, was declared to be in violation of the Fourteenth Amendment of the United States Constitution “insofar as it allows garnishments to be issued prior to a final judgment unless there is a showing that such garnishment is necessary because of extraordinary circumstances.” McMeans v. Schwartz, 330 F.Supp. 1397, 1400 (S.D.Ala., 1971).

In Tarver, supra, the plaintiff contended that a writ of garnishment procured by the defendant while the judgment for which it was issued was being appealed was done knowingly, willfully, intentionally or maliciously for the purpose of extorting money. This court held that the complaint was not demurrable.

The instant case is not before us on a motion to dismiss for failure to state a cause of action, but rather, on summary judgment. “The [summary] judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Rule 56(c), ARCP.

Mrs. Skillman has admitted, as per request for admissions submitted by appel-lee, that the appellee had a default judgment rendered in its favor and against Mrs. Skillman in the sum of $2,904.35; that she had received notice of the complaint; that appellee had procured a writ of execution which had been returned “No Property Found” prior to procuring a writ of garnishment; and that she had received notice of the writ of garnishment but had not responded. As a matter of law, appellant could not recover under these facts for an alleged wrongful garnishment. The summary judgment as to count 1 and 2 was correctly granted.

Count 3 alleges willful breach of the “Mini-Code,” Tit. 5, §§ 316-341, Code, supra. Appellants contend that the prior judgment is totally void on its face under Tit. 5, § 322, and therefore can be collaterally attacked.

“No creditor under this chapter shall bring suit on any debt for collection, and no judgment by default or otherwise shall be rendered until the creditor shall file an affidavit stating that (a) there has not been a violation of provisions of this chapter, and (b) that the debtor (if a resident of this state) on information and belief of creditor is a resident of the county in which the suit is filed. If such violation exists or if the debtor is not a resident of the county in which suit is filed, the suit shall be abated.” Tit. 5, § 322, Code, supra.

Rule 55(c) of the Alabama Rules of Civil Procedure (ARCP) provides that a judge, in his discretion, may set aside a judgment by default within 30 days. However, where 30 days has passed, as in this case, the proper procedure is explained in Rule 60(b), which is apparently the procedure Mrs. Skillman followed in obtaining a hearing on her motion to set aside the default judgment.

The comments to Rule 60 add the following:

“The normal procedure to attack a judgment under this rule will be by motion in the court which rendered the judgment. If the relief does not appear to be available under the rule, or if relief from judgment is sought in some other court than the court which rendered the judgment, the party should bring an independent proceeding. [Cite omitted.] But an erroneous choice between these procedures is not fatal to the party attacking the judgment. There is little procedural difference between the two methods of attack, and since nomenclature is unimportant, courts have consistently treated a proceeding in form an independent action as if it were a motion, and vice versa, where one but not the other was technically appropriate, and any procedural difference between them was immaterial in the case.”

In essence this is the second time Mrs. Skillman has collaterally attacked the default judgment, the first time being at her hearing on her motion to set aside the default judgment seven months after the rendering of the judgment. Rule 60(b) provides that relief may be had by motion or an independent action. However, we do not believe the intention was to allow both a hearing via a 60(b) motion, and, should that fail, then an independent action. Mrs. Skillman’s remedy was to appeal from the denial of her motion to set aside the default judgment. See 7 Moore’s Federal Practice, ¶ 60.30[1]. Consequently, we shall not consider the question of whether the default judgment is void because of Tit. 5, § 322.

Mr. Skillman was not a party to either the default judgment or the motion to set aside the default judgment. His only interest stems from the joint account in his and Mrs. Skillman’s names that was garnished by the appellee for the debt of Mrs. Skill-man. If anyone wronged Mr. Skillman, it is not the appellee, but rather, the garnishee, First Alabama Bank of Gadsden. See Tit. 7, § 1023, Code, supra. Of course, we express no opinion as to First Alabama Bank’s liability.

The summary judgment is affirmed as to both Mr. and Mrs. Skillman.

AFFIRMED.

HEFLIN, C. J., and BLOODWORTH, JONES and EMBRY, JJ., concur.


author: JONES, Justice.

text:
    GUNITE CONTRACTING COMPANY, INC., a corp. v. Woodrow W. MIZE, Jr., and Patricia R. Mize.
    SC 1459.
    Supreme Court of Alabama.
    Jan. 14, 1977.
    J. Douglas Evans, Florence, for appellant.
    William J. Trussed of Church, Trussed & Robinson, Florence, for appellees.
   JONES, Justice.

The primary issue presented in this case is whether the plaintiff, Woodrow Mize, is entitled to punitive damages for conversion and trespass.

Woodrow Mize contracted with Gunite Contracting Company, Inc., for a swimming pool. After the pool was installed, but before completion, the shed floated out of the ground. Gunite attempted several methods of correcting this problem, including the digging of a ditch to drain the water.

There was evidence from both parties which showed that Gunite’s employees used Mize’s bulldozer without his permission. Some of Mize’s trees were knocked down by Gunite’s employees. Mize testified that he would not have given Gunite permission to use his equipment. Mize further testified that Gunite’s employees broke into his locked garage to obtain certain tools.

In addition to his charges concerning breach of contract, conversion, and trespass, the trial Judge further instructed the jury concerning the law of damages, including the assessment of punitive damages. The jury returned a verdict of $17,600 in favor of Mize.

On appeal, both parties appear to concede that a reasonable award for breach of contract would be $12,000. In any event, there was credible testimony presented to the jury which showed that, because of Gunite’s breach, Mize was entitled to $12,-000. Gunite contends that the remaining $5,600 was an unwarranted award of punitive damages. We disagree.

As this Court stated in Ray Hughes Chevrolet, Inc. v. Gordon, 294 Ala. 638, 320 So.2d 652 (1975), the law in Alabama is that, if evidence is presented to the jury which shows that a party has converted property in known violation of the owner’s rights and in violation of the law, punitive damages may be assessed. See also Parker v. Sutton, 47 Ala.App. 352, 254 So.2d 425 (1971).

These elements are present in the case at bar. There is ample evidence in the record which justified the jury’s believing that Mize’s tools and equipment had been converted by Gunite’s employees willfully and in known violation of his rights. Furthermore, the jury was justified in believing that Gunite had willfully violated the law. This evidence, along with the evidence as to actual loss, was sufficient to justify the jury’s assessment of $17,600 for compensatory and punitive damages. Thus, the decision of the trial Court is affirmed.

AFFIRMED.

BLOODWORTH, ALMON, and EMBRY, JJ., and SIMMONS, Retired Circuit Judge, sitting by designation of the Chief Justice, concur.


text:
    ALABAMA POWER COMPANY, a corporation v. James R. MARTIN and Sylvia Martin.
    SC 1567.
    Supreme Court of Alabama.
    Jan. 14, 1977.

      James 0. Spencer, Jr., Balch, Bingham, Baker, Hawthorne, Williams & Ward, Birmingham, William E. Hereford, Jr., Gaines, Hereford & Ckeckler, Pell City, for appellant.
    William J. Trussell, Church, Trussed & Robinson, Pell City, for appellees.
   JONES, Justice.

This case arose out of a dispute between Alabama Power Company and James Martin regarding the existence of a flood easement on Martin’s property. This property is fronted by the Coosa River and is located in Riverside, a community outside Pell City.

In April of 1963, Martin’s predecessors in title, the Kilgores, entered into a land contract with Alabama Power Company through its agent, Walter Smith. This contract granted in fee to the Power Company ad their land “which would be covered with or which either alone or together with other lands would be entirely surrounded by waters of the Coosa River or its tributaries should such river or its tributaries be raised and backed up to that certain datum plane of 466 feet above mean sea level . . . The Kilgores also granted to the Power Company “the right to flood, cover or surround with water from time to time that portion of the lands hereinafter described which lie above such datum plane [466 feet] and which would be flooded, covered with or surrounded by such waters should such river or its tributaries be raised and backed up to that certain datum level of 475 feet above such mean sea level . . ..” This grant of an easement is the subject of the law suit.

Several residents of Riverside testified that they had entered into similar contracts with the Power Company. They further testified that Walter Smith, the Power Company’s agent, told them they could build up their lots above 475 feet with fill dirt collected from the pool area of the Coosa River bed. Mr. Kilgore testified that agents of the Power Company told him that if dirt was filled in which raised his property above 475 feet, that portion of the property would not be subject to the easement. Kilgore stated that he executed the contract based upon these representations. Kilgore then sold his land to his neighbor, W. A. Coleman. Before purchasing the property, Coleman called Walter Smith to see if he could extinguish part of the easement by raising the property’s elevation with fill dirt. The testimony shows:

“Question: What did Walter Smith say to you relative to filling in this lot at one time was owned by you and is now owned by Jim Martin?
“Answer: ... he said it would be all right to put the dirt there. And I could raise it up which I did with his approval. And [Walter Smith] was in Riverside and saw the operation that went on.”

This property was ultimately conveyed to Martin and he took possession with knowledge of the representations made by Smith to the Kilgores and Coleman. Martin erected a foundation on that portion of the property which was subject to the easement but had been elevated by the addition of fill dirt. There was conflicting testimony as to the present elevation, but at one time this portion of the property was above 475 feet.

In 1975, the Power Company filed suit against Martin seeking a permanent injunction which would prohibit any construction on the easement area.

Martin’s answer alleged that agents of the Power Company made an oral agreement with his predecessors in title and that the conditions of this agreement was fulfilled. As a result, Martin claims that the easement has been extinguished. Furthermore, Martin alleges that he relied on these agreements to his detriment; and, therefore, the Power Company should be es-topped from claiming any easement.

The trial Judge, hearing the evidence ore tenus, made the following findings of fact:

“1. That agents of the Power Company made representations to the land owners, including Martin’s predecessors in title, that the land between 466 and 475 feet sea level could be filled and the lands thereby taken out of the easement.
“2. That Martin’s predecessors in title used fill dirt to build up the remaining portion of the lot to an elevation exceeding 475' above sea level.
“3. That these predecessors in title fully performed and executed the oral agreement between themselves and the Power Company’s agent.
“4. That the Power Company, through its agents, had knowledge of Martin’s predecessors in title filling operations conducted in accordance with this oral agreement.
“5. That the Power Company took no action to restrain this activity.
“6. That Martin has caused ten to twelve inches of fill dirt to be placed on the property in question.
“7. That Martin has built a concrete foundation upon this property.
“8. That Martin had been informed of an oral agreement which had been made between the Power Company’s agent and Martin’s predecessors in title whereby it was agreed that the property could be built up and the easement extinguished.
“9. That Martin believed that this oral agreement had been executed and that the Power Company no longer claimed an easement in that portion of the lot that wás filled in and built up.
“10. That because of this information and belief, and upon previous representations made by the Power Company before the execution of the oral agreement and upon the subsequent conduct and silence of the Power Company after the execution of the agreement, Martin purchased this lot for a more expensive price and caused such fill and concrete foundation to be placed thereon.
“11. That Martin would be greatly damaged if the Power Company is allowed to assert an easement.”

We are constrained from reviewing the findings of fact by the trial Judge unless his findings are not supported by credible evidence or are manifestly unjust. Thus, we hold that these findings are not reviewable because they are supported by credible evidence, and are not, in our opinion, palpably wrong or manifestly unjust.

The Power Company’s main thrust is that the statute of frauds renders void any oral agreement concerning the extinguishment of the easement. Counsel for Martin readily admit that the general rule in Alabama is that an easement (both as to its grant and as to its extinguishment) is subject to the statute of frauds and, therefore, must be in writing. Carter v. Stringfellow, 293 Ala. 525, 306 So.2d 273 (1975).

Martin urges, citing Stearnes v. Woodall, 218 Ala. 128, 117 So. 643 (1928), an exception to that rule: If a parole agreement to extinguish or modify an easement is based on consideration and has been fully performed and executed by the parties, the agreement is outside the statute of frauds.

Because of our holding below that the property, as restructured under the agreement of the parties, is outside the easement grant — and thus the easement has not been extinguished — we find the statute of frauds (both the general rule as contended by the Power Company, and its exception as contended by Martin) is not pertinent to our disposition of this case.

After examining the instrument granting the easement and looking to the trial Court’s findings of fact, we discern that the property in question is not subject to the easement as long as it is above 475' datum sea level. The critical descriptive language does not speak in terms of metes and bounds but rather in elevation. The purpose and intent of this easement is to allow the Power Company sufficient land area above the average water level if flooding should ever occur. Therefore, the Power Company’s easement must be measurable by altitude, not latitude or longitude.

Of course, this reasoning gives rise to the argument that Martin has improperly interfered with the proper enjoyment of the Power Company’s easement. There is no question that the general rule in Alabama is: The owner of a servient estate must abstain from acts interfering with or inconsistent with the proper enjoyment of the easement by the owner of the dominant estate. Brown v. Alabama Power Company, 275 Ala. 467, 156 So.2d 153 (1963); Collins v. Alabama Power Company, 214 Ala. 643, 108 So. 868 (1926).

We find in this case, however, that the Power Company is estopped from making any claim against Martin concerning possible interference with the former flood easement area. As this Court stated in Mazer v. Jackson Insurance Agency, Ala., 340 So.2d 770 [1976]:

“Estoppel . . . has three important elements. The actor, who usually must have knowledge of the true facts, communicates something in a misleading way, either by words, conduct or silence. The other relies upon that communication. And the other would be harmed materially if the actor is later permitted to assert any claim inconsistent with his earlier conduct.”

These elements are present in the case at bar. The actor was the Power Company’s agent, Walter Smith. Although he had knowledge of the true facts — a subservient tenant whose interference with the enjoyment of the dominant estate’s easement had been induced as a consideration for the purchase of the property — he misled Martin’s predecessors in title. The trial Court in its findings of fact found that Martin had knowledge of the communication and relied on it to his detriment. The trial Court further found that Martin would be greatly damaged if the Power Company was allowed to assert rights to the easement.

Although neither party addressed the question of potential liability, it is the responsibility of Martin to maintain the elevation of the land in question above 475 feet. Otherwise, that portion of the property which settles below this level, as well as any footings or foundations of structures that descend -below the 475-foot level, become subject to the easement according to our interpretation of the deed.

It should be noted that this flood easement has not been extinguished. The only way to extinguish this easement (absent prescription or adverse possession) would be by the manner in which it was created (by grant). See Camp v. Milam, 291 Ala. 12, 277 So.2d 95 (1973). This is not what happened in this case. Because of the application of estoppel, Martin’s actions in raising his property above the 475-foot level prohibits the Power Company from asserting any rights in that property. Thus the trial Court is affirmed.

AFFIRMED.

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


author: BLOODWORTH, Justice.

text:
    Lester GOSA v. Vacy WILLIS and Mary Willis.
    SC 1742.
    Supreme Court of Alabama.
    Jan. 14, 1977.

      James E. Hart, Jr., Brewton, Hugh Rozelle, Atmore, for appellant.
    Joseph B. Brogden, Atmore, for appellees.
   BLOODWORTH, Justice.

Defendant, Lester Gosa, appeals from a judgment setting aside a deed by which plaintiffs, Vacy and Mary Willis, conveyed certain real property to Gosa and ordering him to vacate the premises. We affirm.

The property in question is a house and two small lots located next door to the Willises’ residence. Title to the property was once in the names of Lester Gosa and Daisey Willis Gosa, Vacy Willis’ daughter. The property was awarded to Daisey in a divorce proceeding, and she then conveyed it to Vacy and Mary. Gosa continued to live on the property up to the time that this action was filed.

On December 18, 1974, Gosa took the Willises to the office of Joe B. Thompson, Jr., an attorney, where they executed a warranty deed conveying the property to Gosa. The deed recites a consideration of one dollar and other valuable consideration.

At the time, Vacy Willis was about 78 years of age, and Mary was about 67. The evidence indicated that Vacy had only a first-grade education and that Mary had, at most, an eleventh-grade education, although there is testimony that “she made it to the third or fourth grade” only.

In February 1975, the Willises filed suit in the Circuit Court of Escambia County seeking to have the deed set aside and to have Gosa vacate the premises. The complaint alleged, inter alia, that there was no real consideration for the conveyance, that Vacy Willis was “very weak mentally” and unable to read or write, and that Mary Willis was “ignorant and uneducated.” The Willises, in one rather long paragraph in their complaint, advanced four grounds for setting aside the deed — fraud, duress, undue influence, and mistake.

Fraud. The complaint alleged that on the day on which the deed was executed Gosa represented to the Willises that he was taking them to a lawyer’s office to sign papers that would enable Gosa to pay the property taxes on the subject property.

Duress. The complaint alleged that Gosa through threats induced and coerced the Willises to sign the deed and that, because of prior threats, intimidation, harassment, and coercion, applied against them by Gosa, they were afraid to refuse to comply with his demands.

Undue influence. The complaint alleged that the Willises were under the influence and dominion of Gosa when they executed the deed and that they executed the deed as a result of undue influence exerted upon them by Gosa.

Mistake. The complaint alleges that the Willises did not understand that they were executing a deed, that they did not read the instrument, and that they did not recall the instrument’s being read or explained to them, but that, because of Gosa’s representations, they believed they were executing “some sort of tax papers.”

Gosa filed a motion to dismiss on the ground that the complaint failed to state a claim upon which relief could be granted. The trial court denied the motion.

The trial judge, sitting without a jury, gave the following reasons for granting the relief requested:

“. . . The Court concludes that the consideration for the subject deed was so inadequate, if not completely lacking, as to convince the Court that the subject transaction was not bona fide. • The Court further concludes that at the time Plaintiffs executed said deed, they were of such advanced age, senility and mental enfeeblement, that they did not fully understand the nature or import of the transaction. The Court is of the opinion that the Defendant, through perhaps an abuse of confidence, took an unjust and inequitable advantage of the Plaintiffs whose mental situation at the time would be calculated to render them easy victims to the unconscientious. The Court is of the further opinion that equitable terms dictate that this deed be set aside because the Court is of the opinion that the Defendant took unfair advantage of the great mental weakness of the Plaintiffs. . . . ”

On appeal, Gosa contends that the trial court erred in denying his motion to dismiss because the Willises’ complaint did not satisfy Rule 9(b), ARCP, and that the trial court’s judgment was plainly erroneous and not supported by the evidence.

Rule 9(b) provides,

“In all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity. Malice, intent, knowledge, and other condition of mind of a person may be averred generally.”

We pretermit the question as to whether the complaint satisfied Rule 9(b) as to the allegations of fraud, because the complaint did sufficiently allege undue influence. This is one of the grounds upon which the trial court appears to have based its relief. There was sufficient evidence to support a finding of undue influence.

Although we have stated that undue influence is a species of constructive fraud, we have held that a bill alleging undue influence is not subject to demurrer for failure to allege acts of undue influence in detail. Orton v. Gay, 285 Ala. 270, 275, 231 So.2d 305 (1970).

The principles of law applicable to this case were set forth in Webb v. Webb, 250 Ala. 194, 203-204, 33 So.2d 909, 914-915 (1948):

“The law presumes the exercise of undue influence in transactions inter vivos where confidential relations exist between the parties, and puts upon the do-nee or grantee, when shown to be the dominant party in the relation, the burden of repelling the presumption by competent and satisfactory evidence. . .”
******
“But for such a presumption to be raised the evidence must show clearly and satisfactorily: (1) That a confidential relation existed between the grantor and grantee; (2) that the grantee was the dominant spirit. . . .”

In view of these principles, the issues are whether the evidence supports a finding that a confidential relationship existed between Gosa and the Willises and that Gosa was the dominant spirit and, if so, whether the trial court could have concluded from the evidence that Gosa had not rebutted the presumption thus raised. We hold that there was evidence from which the trial court could have found that the presumption was raised and that the trial court could have concluded from the evidence that Gosa had not rebutted the presumption.

For the presumption to be raised, it is not necessary that the confidential relation be a fiduciary relation; it is sufficient that confidence is reposed and accepted in any of the relations in which dominion may be exercised by one person over another. Milliner v. Grant, 253 Ala. 475, 479, 45 So.2d 314 (1950).

Before considering the evidence in detail, we restate the principle which guides us in reviewing the sufficiency of evidence:

“. . . [I]f the trial court’s decree is fairly supported by credible evidence under any reasonable aspect, we must affirm the decree, irrespective of what view we may take as to the evidence. . . ”

Orton v. Gay, supra, 285 Ala. at 275, 231 So.2d at 310.

Gosa was the Willises’ former son-in-law, their next-door neighbor, and their tenant. The evidence indicates that Vacy Willis was upset because he had paid the property taxes on the house in which Gosa was living, believing that he was paying the taxes on the house in which he lived. Vacy apparently considered that Gosa should pay the taxes on the property even though the Willises held title to it.

Gosa testified that Vacy had told him that he wished to get the problem straightened out and that he had told Vacy that the only way to do so was to deed the property to someone. Thereafter, Gosa retained Mr. Thompson to prepare a deed conveying the property from the Willises to Gosa. A couple of weeks later, Gosa transported the Willises to Mr. Thompson’s office, where they signed the deed.

The trial court could have concluded from this evidence that the Willises relied on Gosa to help them get their tax problem straightened out and that Gosa accepted the confidence thus reposed in him.

There was no direct testimony to the effect that the Willises were easily swayed or dominated, but there is testimony that they relied on others to help them with their business and the trial court could have concluded from the oral testimony and his own observation that they were easily swayed or dominated or that they were mentally feeble and dependent on others. A mere reading of the record indicates a certain docility and feebleness in the Willis-es. Furthermore, even Gosa tried to show that the Willises had changed their minds about conveying the property because they were swayed or dominated by Daisey. Vacy Willis testified that Gosa told them to get into the car and go up to the lawyer’s office and they went. He testified that he did not intend to give the property to Gosa. In view of this evidence, we cannot say that there was no credible evidence to support a finding that the Willises were dominated by Gosa in the transaction in question.

Gosa presented evidence which, though tending to rebut the presumption of undue influence, was not so overwhelming that the trial court could not have found otherwise. By his own testimony, Gosa attempted to show that the Willises wanted him to have the property, but their testimony was to the contrary.

Gosa also presented evidence that Mr. Thompson carefully explained to the Willises that they were deeding the property to Gosa. But the issue here is not whether they understood what they were doing, but whether their wills were subject to Gosa’s dominance. Cf. Wyatt v. Riley, 292 Ala. 277, 282, 293 So.2d 288 (1974). Furthermore, Mr. Thompson was retained by Gosa and could not be regarded as an independent advisor. See Manfredo v. Manfredo, 191 Ala. 322, 68 So. 157 (1915).

AFFIRMED.

HEFLIN, C. J., and JONES, ALMON and EMBRY, JJ., concur.


author: SHORES, Justice.

text:
    Kenneth Robert DAUGHTRY et al. v. The WESTERN RAILWAY OF ALABAMA, a corp., et al.
    SC 1756.
    Supreme Court of Alabama.
    Jan. 14, 1977.

      J. Paul Lowery, Montgomery, for appellants.
    Walter R. Byars and Carol A. Smith of Steiner, Crum & Baker, Montgomery, for appellees.
   SHORES, Justice.

This appeal is from a judgment entered on a jury verdict in favor of The Western Railway of Alabama (hereinafter Western) in a suit for personal injuries brought by Kenneth Daughtry, Nelda Ann Magner and James Lawrence Jones (hereinafter plaintiffs) claiming damages for injuries sustained when the automobile in which they were riding collided with the side of a train owned and operated by Western. The trial court denied a motion for a new trial. The plaintiffs contend that the trial court erred in its ruling on objections to questions propounded to the investigating officer, D. R. Tucker, in sustaining Western’s objection to certain questions propounded to plaintiffs’ experts, and in giving four of Western’s requested charges.

D. R. Tucker was allowed to testify on cross-examination by Western that, on the basis of various conditions he observed at the scene of the accident including damage to the rear of the Daughtry automobile, particles of paint on the metal pole which supported the crossing signal lights, which appeared to match that of the Daughtry automobile, and damage to protective posts surrounding the metal pole, it was his opinion that the pole supporting the crossing signal was struck by the Daughtry automobile. Plaintiffs objected to the admission of this testimony on the ground that it was opinion evidence, and its admission invaded the province of the jury. However, the plaintiffs had qualified Officer Tucker as an expert on direct examination; and he was allowed to testify that one of the cars struck the side of the train and that it was his opinion that the train had been struck there because of the scuff marks and “guages” (sic) on the side of the train. On cross-examination Western asked this witness the following question:

“As an expert trained in traffic investigations, is it your opinion or not, from your survey of the evidence that you saw there at the scene, both of the vehicles and of the pole itself and of any other elements there including these stobbes, as you called them, that was put around there, is it your opinion or not that that pole that held those lights was struck by the 1965 Oldsmobile which was occupied by the Plaintiff Daughtry and the Plaintiff Magner?”

Plaintiffs’ attorney objected to' this question on the grounds that it was confusing, misleading, called for hearsay and invaded the province of the jury.

The court said:

“I am going to deny it based upon his cross-examination; I think he has covered it sufficiently to answer if he knows.”

Thereupon, the witness stated:

“In my opinion, the car hit the pole.”

This court has repeatedly held that great latitude is allowed on cross-examination; and that such latitude is enlarged when experts are being cross-examined. Louisville & Nashville R. Co. v. Martin, 240 Ala. 124, 198 So. 141 (1940).

The allowance of this testimony does not constitute reversible error.

Plaintiffs argue that the evidence admitted through the following colloquy between Officer Tucker and Western’s counsel violates the hearsay rule:

“Q Officer Tucker, I believe you stated earlier that you were the investigating Officer at the accident that occurred at the Air Base Boulevard and the crossing of the Western Railway where the blinker lights are?
“A Yes, sir, I did.
“Q Involving the cars that these people were in?
“A Yes, sir.
“Q At that time did Mrs. Sandra Monte come to you and tell you that she was a witness to this accident?
“A Yes, sir, she did.
“Q What did she tell you there at the scene of the accident with respect to whether the lights, the blinking lights were working and the whistle was sounding and this sort of thing, if anything?
“MR. LOWERY: Your Honor, we object. The witness has already testified that nobody — that the only people he talked to was the railroad crew.
“THE COURT: Well, let’s see what he has to say — he’s objecting and I want to see what you have to say to counter that.
“MR. BYARS: That just goes to his credibility, Judge. It has nothing to do with being objectionable or not. The Jury will remember what this witness said.
“THE COURT: I overrule the objection.
“BY MR. BYARS: (Continuing)
“Q Go ahead, please, sir, and say what she said, if anything.
“A Yes, sir. She made the statement that she was headed towards Maxwell which would be north on Air Base Boulevard. She came up to the railroad crossing, stopped for the blinking lights. She stated the lights were working and the bell was working and she saw the train coming and she had time to get across. She went on across the intersection and met two cars traveling at a high rate of speed meeting her headed south on Air Base Boulevard.”

The only objection interposed to this testimony was that the witness had previously testified that the only people he talked to in the course of the investigation was the crew. No objection was made on the ground that the testimony was hearsay. Therefore, we cannot reverse the trial court in allowing the testimony. See ARCP 46.

Plaintiffs next contend that the trial court erred in admitting the testimony of Officer Tucker concerning the respective speeds of the locomotive and the vehicle operated by plaintiff Jones. This evidence was first offered by the plaintiffs. We cannot reverse the trial court for allowing evidence offered by the objecting party. State Farm Mutual Auto Ins. Co. v. Humphres, 293 Ala. 413, 304 So.2d 573 (1974); Dixie Highway Express, Inc. v. Southern Ry. Co., 286 Ala. 646, 244 So.2d 591 (1971).

Plaintiffs also assert that the trial court erred in sustaining Western’s objection to questions propounded to plaintiffs’ experts Alexander, Stephens, Zadnichek and Colson concerning the safety and maintenance of the crossing in question. The contention is without merit. The record indicates that witness Colson was permitted to testify that “It is a crossing that needs upgrading . . . ” Witness Zadnichek was allowed to testify that he “ . didn’t consider the maintenance of the track section for the signal circuit to be the degree it should to insure unintended operation of that signal system.” The record reveals no other instance wherein the plaintiffs attempted to question Western’s experts on the safety or maintenance of the crossing. The trial court cannot be put in error for excluding testimony which was not offered. If some evidence was disallowed as to the safety of the crossing, it was without injury to the plaintiffs as such evidence would be merely cumulative. Chambers v. Culver, 289 Ala. 724, 272 So.2d 236 (1973); Decker v. Hays, 282 Ala. 93, 209 So.2d 378 (1968).

Lastly, the plaintiffs complain that the court erred in giving certain charges, requested by Western. The first of these is as follows:

“I charge you that the law is that the burden of proof of negligence is on the plaintiffs. The defendant railroad does not have the burden of proving that it was not negligent. It is your responsibility to apply the negligence test honestly to the evidence presented to you, and not to pretend or speculate that negligence exists on the part of defendant railroad, unless you are reasonably satisfied from the evidence that negligence does exist.”

Plaintiffs’ contention appears to be that once the evidence established that the injury was caused by a train, the railroad is charged with the burden of showing that it complied with the safety requirements of §§ 170-172 of Title 48, Code.

We agree with Western that Cardwell v. Louisville & Nashville R. R. Co., 185 Ala. 628, 64 So. 564 (1914), is dispositive of this contention. This court, discussing the predecessor to Title 48, § 173, Code, held therein:

“There was no error in giving charge G requested by the defendant. It stated a proposition of law fundamentally correct and necessarily applicable in every case. If, in order to give point to appellant’s argument against the charge, it be construed with special reference to section 5473 of the Code, which imposes certain duties on the operators of railroad trains at public road crossings, at regular stations and stopping places, or when entering into, or while moving within, or passing through, any village, town, or city, and section 5476, which puts upon them the burden of showing a compliance with section 5473 and that there was no negligence, still, in view of the necessary principle upon which the courts proceed in every department of jurisprudence, namely, that wrong is not presumed, and the proof lies upon him who affirms, not upon him who denies, in view of this principle of law and right the charge merely meant that the burden rested upon plaintiff to prove the basic fact of his case, namely, that he was injured by the operation of defendant’s cars or train at a place and in circumstances that brought him within the protective purview of the statute. If plaintiff desired definition of the conditions in which the statute operated in his case and of its effect in those conditions, that might have been had on application to the court for proper instructions to the jury.
“Other charges given on defendant’s request, and the overruling of the motion for a new trial, in view of what has been said, do not require separate treatment.” 185 Ala. at 634, 635, 64 So. at 565.

§ 173 does not require the railroad to show that it was not negligent. The court’s charges complained of are not abstract or otherwise erroneous.

Plaintiffs further contend that the court erred in giving Western’s requested Charge “No. 18,” which appears in the record as follows:

“I charge you that the jury does not have to find fault in these cases; if the jury is reasonably satisfied from the evidence that the railroad was not guilty of negligence or wantonness, or that, if negligent or wanton, such negligence or wantonness was not a proximate cause of the accident, the jury must return a verdict for the railroad. It is not necessary that the jury find that any one of the plaintiffs is at fault to be consistent with its finding for the defendant in these cases.”

Plaintiffs argue that this charge is argumentative, and that similar charges were said to be properly refused in Southern Ry. Co. v. Norris, 241 Ala. 386, 2 So.2d 899 (1941); Alabama Great Southern R. Co. v. Ensley Transfer & Supply Co., 211 Ala. 298, 100 So. 342 (1924); and Alabama Great Southern Ry. Co. v. Hanbury, 161 Ala. 358, 49 So. 467 (1909).

Without agreeing with the plaintiffs that the charge is argumentative, we simply note that the charges refused in the cases just cited were properly refused for other reasons stated in those opinions. Those cases are not authority for reversing the trial court for giving the charge set out here. Whether a charge is argumentative in a particular case is largely a matter left to the discretion of the trial court, and its determination will not be reversed absent a showing of prejudice to the complaining party. Mobile Cab & Baggage Co. v. Busby, 277 Ala. 292, 169 So.2d 314 (1964); Bray & Landrum v. Ely, 105 Ala. 553, 17 So. 180 (1894).

Plaintiffs likewise challenge the trial court’s giving, at Western’s request, instruction No. 33, which provides:

“The presence of a train on or across a crossing is in itself a warning to the traveling public.”

The trial court did not commit reversible error in giving this charge. This court has approved the legal principle set out in this charge. Moreover, the law imposes a continuing duty on the traveler to see that the way is clear before crossing. Southern Ry. Co. v. Randle, 221 Ala. 435, 128 So. 894 (1930). This charge merely states that the presence of the train on the crossing itself is one form of warning. It does not imply that the presence of the train would relieve the railroad of the duty to warn under all circumstances. The trial court was aware of this and so informed the jury. In its comments, immediately following Charge 34, the court instructed the jury that, once a railroad had undertaken to provide signals, those signals should be adequate and not lead one into danger. Thus, any tendency of Charge 33 to mislead the jury was immediately corrected by the court when the jury was told that the physical presence of the train could not relieve the railroad of its duty to maintain an existing system.

Plaintiffs finally contend that the following instruction was erroneously given:

“Railroads like motorists are not required to take precautions against the negligence of another motorist. One may assume that another will take ordinary care and not operate his automobile in a negligent fashion.”

Plaintiffs say that this instruction had the “ . . obvious effect of instructing the jury that the railroad crew could presume that a passing motorist could not commit suicide.” McKinney v. Birmingham Electric Co., 238 Ala. 627, 193 So. 139 (1940), is authority for the trial court’s charge. In that case, this court held that:

“ . . . The motorman may assume the pedestrian will observe the law, and look out for his safety, until it becomes apparent that from inattention or other circumstance he may not do so. . If the motorman knows the pedestrian sees the approaching car he may assume the latter will conserve his safety until it may be too late for effective effort, on his part. . . . ” 238 Ala. at 632, 193 So. at 143.

And, in Fayet v. St. Louis & S. F. R. Co., 203 Ala. 3, 81 So. 671 (1919), this court allowed the following charge:

“Charge 14. Those in charge of the railroad trains operating over public railroad crossings are charged with the duty of operating the trains with due care; but I further charge you that they may assume, until the contrary becomes clearly apparent to them, that persons, apparently adults driving automobiles or other vehicles, will exercise due care to prevent a collision with the train by not going upon or remaining upon or in dangerous proximity to the track at a time when a train is approaching a crossing.” 203 Ala. 3, 81 So. 671.

Finding no error to reverse, we affirm the judgment.

AFFIRMED.

MADDOX, FAULKNER and BEATTY, JJ., and CATES, P. J., of the Court of Criminal Appeals, sitting by designation of the Chief Justice, concur.


text:
    The HOUSING AUTHORITY OF the CITY OF PRICHARD, a body organized as a body corporate and politic in accordance with the provisions of the laws of the State of Alabama v. George F. MALLOY.
    SC 1794.
    Supreme Court of Alabama.
    Jan. 14, 1977.
    Donald M. Briskman, of Perloff, Reid & Briskman, Mobile, for appellant.
    Irvin J. Langford, of Howell, Johnston, Langford, Finkbohner & Lawler, Mobile, for appellee.
   JONES, Justice.

George Malloy brought an action against The Housing Authority of the City of Prich-ard for breach of an employment contract. Damages sought were:

1) $3,662.26 for transitional expenses incurred in moving from Massachusetts to Alabama; and

2) $14,555.31 for the balance remaining on the one-year employment contract.

The Housing Authority admitted in its closing argument liability for part of the moving expenses. Thus, on this portion of the claim, the amount of damages was the only question submitted to the jury. The jury returned a verdict setting damages at $15,826.62.

At the end of Malloy’s presentation of testimony and at the end of all the testimony, The Housing Authority moved for a directed verdict, which was denied by the trial Court. After the verdict was returned, appellant moved for a judgment notwithstanding the verdict or for a new trial, which the trial Court also denied. The only issues raised on appeal are the trial Court’s denial of these motions.

The Housing Authority states the issues here presented:

“1. The trial court erred in denying the Appellant’s Motion for Directed Verdict at the conclusion of the Plaintiff’s case.
“2. The trial court erred in denying the Appellant’s Motion for Directed Verdict at the conclusion of all the evidence.
“3. The trial court erred in not granting Appellant’s Motion for Judgment Notwithstanding the Verdict or Motion for New Trial.”

Because the pivotal point on which our holding turns is the procedural posture of the case, we review in some detail the context in which The Housing Authority’s motions were made and overruled by the trial Court. As previously noted, Malloy’s claim was twofold:

1) He sought damages for moving and transitional expenses; and

2) He claimed the balance remaining on an alleged one-year employment contract. At the close of the plaintiff’s case, and again at the close of all the evidence, The Housing Authority moved in writing for a directed verdict. While the motion contained several grounds, it was a general motion in that it was directed to the case in its entirety and did not move for directed instructions on each of the individual issues.

During oral argument to the jury, counsel for The Housing Authority conceded that his client owed Malloy the reasonable transitional expenses incurred in moving from Massachusetts to Alabama. Thus, one of Malloy’s two claims (though not the amount of the claim) was confessed. Thereupon, as part of the trial Judge’s oral charge, he directed the jury to return a verdict for Malloy in an amount which it found to be reasonable under the evidence for moving expenses and left discretionary with the jury, under appropriate instruction, any additional damages for breach of the alleged contract of employment. No additional written instructions were requested separating the two claims for damages, and no objection was made to the Court’s oral charge.

It would have been improper for the trial Court to grant The Housing Authority’s motion for a directed verdict for the obvious reason that it would have been in diametric opposition to the Court’s directed verdict for a portion of Malloy’s claim — a claim which the Housing Authority expressly admitted. The trial Judge could not, on the one hand, direct the jury to render a verdict for The Housing Authority on the case in its entirety (which was the only motion before him), and, on the other hand, direct the jury to render a verdict for Mal-loy as to a portion of his claim (which was uncontested except as to the amount).

Of particular interest, here, is the case of Rochester Civic Theater, Inc. v. Ramsay, 368 F.2d 748 (8th Cir. 1966). The holding of Rochester, to which we subscribe, is that a general motion for a directed verdict, pursuant to Rule 50, can only go to the case in its entirety, and not to individual subdivisions; and, to preserve individual issues, a motion must be made for a verdict directing instruction on each of the individual issues. See also Wright & Miller, Federal Practice and Procedure: Civil § 2533, p. 579, Vol. 9.

The Housing Authority’s motion for judgment n. o. v. (Rule 50(b), ARCP) treats the motion for directed verdict in no different posture than when originally presented. In other words, if the motion for directed verdict was properly overruled when made at the close of the evidence, it was also proper to deny the motion for judgment n. o. v. The office of a motion for judgment n. o. v. is made clear in the opening sentence of Rule 50(b):

“Whenever a motion for a directed verdict made at the close of all the evidence is denied or for any reason is not granted, the court is deemed to have submitted the action to the jury subject to a later determination of the legal questions raised by the motion.”

The second sentence of Rule 50(b)— “Not later than 30 days after entry of judgment, a party who has moved for a directed verdict may move to have the verdict and any judgment entered thereon set aside and to have judgment entered in accordance with his motion for a directed verdict;”— necessarily contemplates, for the motion to be granted, that the motion for a directed verdict properly should have been granted in the first instance. The reservation in the opening sentence of subdivision (b) of the Rule for “later determination of the legal questions raised by the motion” for a directed verdict cannot reposture these legal questions. They must be treated as first raised. Where, as here, it would have been error for the trial Court to grant the motion for a directed verdict, likewise, it would have been error to grant the motion for judgment n. o. v.

Moreover, the only ground for The Housing Authority’s Motion for Judgment Notwithstanding the Verdict or in the Alternative for New Trial which is here argued is that the trial Court erred in denying The Housing Authority’s Motion for a Directed Verdict. Because both motions stand on the same footing, and — for the reasons stated — it would have been error to grant the motion for directed verdict when made at the close of all evidence, the trial Court’s rulings denying both motions are affirmed.

AFFIRMED.

BLOODWORTH, SHORES, and EMBRY, JJ., and SIMMONS, Retired C. J., sitting by designation of the Chief Justice, concur.


text:
    Sarah E. FRANCIS v. Onnie E. TUCKER and Barbara Lee Tucker.
    SC 1846.
    Supreme Court of Alabama.
    Jan. 14, 1977.

      Sherman B. Powell, Decatur, for appellant.
    James C. Francis, Decatur, for appellees.
   JONES, Justice.

Sarah E. Francis, plaintiff below, appeals from an adverse decree in a boundary line dispute case between herself and Onnie E. and Barbara Lee Tucker, as coterminous land owners. We affirm.

The boundary line in question is the south line of the Tucker property and the north line of part of the Francis property, i.e., the boundary line that separates the back yards of these two neighbors. The controversy arose due to a 20-foot overlap in the legal descriptions of the two respective deeds.

Mrs. Francis, who acquired her lot through an aunt and who had been acquainted with the property for about 30 years before moving away to Massachusetts in 1965, testified that her north line was marked by a fence and fence row; that, although the fence, in substantial part, was gone when she returned to her home in Hartselle in 1972, she did not observe the Tuckers using the property south of the old fence row line until the Tuckers had their south line surveyed in accordance with their deed shortly before the dispute that culminated in the law suit.

Mrs. Tucker testified that she and her husband had been in continuous, actual, and open possession of the entire tract of land described in their deed (showing a 110-foot depth) since acquiring title in 1960, including the 20-foot disputed strip; that the fence referred to by Mrs. Francis was gone before she and her husband moved onto the property; that she had cut the grass and planted a garden in the area south of the old fence line during all the time since they moved there in 1960; and that no one had made any claim or said anything about any portion of the property which the Tuckers were using and claiming as their own until this suit was filed.

The only issue raised by Mrs. Francis on this appeal is the sufficiency of the evidence to support the verdict. A more detailed recital of the evidence would serve no useful purpose. Suffice it to say, the evidence was in sharp conflict; and the trial Judge had to make a decision. The legal issues are neither complicated nor in serious dispute. If the trial Court found the facts as testified to by the Tuckers, their right to prevail, as a matter of law, is well established. Varner v. Carr, 291 Ala. 654, 286 So.2d 294 (1973); Guy v. Lancaster, 250 Ala. 287, 34 So.2d 499 (1948).

Our ore tenus scope of review rule hardly needs repeating nor authority cited to mandate our affirmance of the trial Court’s decree fixing the line in accordance with the Tuckers’ deed of conveyance. It is an oft stated rule that a decree establishing a boundary line need not be supported by a preponderance of evidence. If, under any reasonable aspect of the case, the decree is supported by credible evidence, it is due to be affirmed unless palpably wrong or manifestly unjust. The only weight of the evidence rule invoked by our cases is where the “great or decided preponderance of evidence against the decree” test is applied in determining whether, though supported by some credible evidence, the decree is palpably wrong or manifestly unjust. See Varner v. Carr, supra, and Edwards v. Farmer, 285 Ala. 118, 229 So.2d 507 (1969).

Indeed, our research turns up only two Alabama cases where the trial court’s factual determination as to the boundary line location of coterminous land owners has been set aside on appeal. See Catrett v. Crane, Ala., 329 So.2d 536 (1976); Wilson v. Cooper, 256 Ala. 184, 54 So.2d 286 (1951). In each of these cases, the trial court refused to accept the version of facts by either side, but instead established a line somewhere between the lines contended for by the respective parties. Thus, it was not the “palpably wrong or manifestly unjust” portion of the rule, measured by the “great weight or preponderance of the evidence” test, that was invoked in either of these reversals; rather, the decree in neither of these cases was supported by any credible evidence.

One other point, raised here by ap-pellee, deserves comment. We frequently find a common misunderstanding of our authority to review the sufficiency of evidence to support a decree absent a motion for a new trial. Where the case is tried to a jury, a motion for a new trial is necessary to invoke a ruling before the appellate court will pass on the weight of the evidence or review findings of a jury. Horn v. Smith, 292 Ala. 503, 296 So.2d 719 (1974).

Conversely, while the presumption favoring the court’s findings of fact (the ore tenus rule) results in infrequent reversals, our authority to review such decree on the issue of sufficiency of the evidence is not dependent upon a motion for a new trial; and this for the reason that the trial Court’s ruling on the sufficiency of the evidence is implicit in a decree in which the trial judge was the trier of the facts. Baker v. Citizens Bank of Guntersville, 282 Ala. 33, 208 So.2d 601 (1968).

AFFIRMED.

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

      . These pure factual determination cases are to be distinguished from those cases invoking a misapplication of the law to the facts. See, e.g., Murphree v. Swann, Ala., 342 So.2d 329 [1976].


text:
    McMillan LANE, Commissioner of Agriculture and Industries, State of Alabama, and Alabama Highway Authority v. GURLEY OIL COMPANY, a corporation, and Gurley Refining Company, Inc., a corporation.
    SC 1862.
    Supreme Court of Alabama.
    Jan. 14, 1977.

      William J. Baxley, Atty. Gen., and George 0. Miller, Asst. Atty. Gen., for appellant, Commissioner of Agriculture.
    Robert G. Johnson and Douglas Arant, Birmingham, for appellant, Alabama Highway Authority.
    Robert A. Huffaker and James T. Up-church, III, Montgomery, for appellees.
   BLOODWORTH, Justice.

Defendant, McMillan Lane, Commissioner of Agriculture and Industries for the State of Alabama, and intervenor, Alabama Highway Authority, appeal from a judgment for plaintiffs, Gurley Oil Company and Gurley Refining Company, Inc., which declared that Act 1403, Regular Session, Acts of Alabama 1971, violates § 45, Constitution of Alabama 1901, and held that Gurley Refining was entitled to a refund of inspection fees paid. Alternatively, the Court held that, even if Act 1403 is constitutional, the rerefined lubricating oil sold in Alabama by Gurley Refining was the “same product” as the virgin oil on which the inspection fees had previously been paid because it had been reprocessed from waste oil collected in Alabama and consequently that the rere-fined lubricating oil sold by Gurley Refining in Alabama was exempt from payment of the inspection fee under § 9(h) of Act 1403. We reverse and remand.

I. Constitutionality of Act 1403

The trial court held that Act 1403 violates the provision of § 45, Constitution of Alabama 1901, which requires that “[e]ach law shall contain but one subject, which shall be clearly expressed in its title. . . . ”

The title to Act 1403 is as follows:

“To provide for inspection of certain petroleum products, including those commonly known as gasoline, naphtha, diesel fuel, kerosene and lubricating oil, that are sold, offered for sale, used or stored in the State of Alabama; to provide for the issuance by the Commissioner of Agriculture and Industries of permits for selling, offering for sale, storing, or using such petroleum products and to require the making of applications for such permits and payment of a permit fee; to authorize the Board of Agriculture and Industries to establish minimum standards for such petroleum products; to require compliance with such standards; to provide for enforcement of this act, including provisions for maintenance of records and for labeling, sampling and testing such products, provisions prohibiting adulteration thereof, and provisions for penalties for violation of this act; to prohibit the sale, offering for sale, storage or use in this State of petroleum products not meeting the said standards; to impose an inspection fee in respect of each such petroleum product; to provide for the disposition of such inspection fees and any penalties collected under this act; to provide that violation of this act constitutes a misdemeanor; and to repeal Article 21 of Chapter 1 of Title 2 of the Code of Alabama of 1940 and subdivision 2 of Article 26 of the said Chapter 1.” [Emphasis supplied.]

The court held that Act 1403, while described in its title as providing for “inspection fees,” is in fact a revenue-producing tax measure because the revenue generated far exceeds what is necessary to administer the inspection program and the excess revenue was, by a subsequent act, pledged for payment of bonds issued by the intervenor, Alabama Highway Authority, to provide funds for highway construction. In support of the trial court’s judgment, plaintiffs Gurley argue that the title does not clearly express the act’s subject, but mischaracter-izes it, and that the act actually contains two subjects, one relating to an inspection program for petroleum products, the other relating to funding of the state’s highway construction program. Section 11 of Act 1403 provides that the first $55,000 of the monthly proceeds from the inspection fee goes to the agricultural fund and that the residue goes to the road and bridge fund.

Regarding the requirement of § 45 that each law shall contain but one subject, we conceive the issue presented is whether an act providing for an inspection program and for the levying of inspection fees contains more than one subject where the proceeds from the inspection fees greatly exceed the amount necessary to fund the inspection program and where the excess revenue is allocated in the act to the road and bridge fund.

We hold that the act does not contain more than one subject. The one subject is the inspection program. The levying and disposition of inspection fees is part and parcel of the inspection program. It is not necessary that the legislature so calculate the inspection fee that it produce no more revenue than necessary to fund the inspection program. The state has the right to combine the exercise of its police power and its taxing power. Alabama Power Co. v. City of Carbon Hill, 234 Ala. 489, 493, 175 So. 289 (1937); State v. Kartus, 230 Ala. 352, 353-54, 162 So. 533 (1935).

Furthermore, an act does not contain more than one subject merely because it provides for more than one use of the revenue collected under the act. Opinion of the Justices, 270 Ala. 38, 42, 115 So.2d 464 (1959). To uphold the trial court’s judgment would unduly handicap the legislature in the exercise of its legitimate prerogatives and would not serve the purposes of § 45 in our judgment. Opinion of the Justices, 275 Ala. 254, 154 So.2d 12 (1963).

With respect to the requirement of § 45 that the one subject of a law be clearly expressed in its title, we consider the issue is whether the title to an. act such as the one described above clearly expresses the subject of the act where the title does not state that the act will produce revenue in excess of that necessary to fund the program provided for in the act. We hold that it is sufficient for the title to state that the act imposes an inspection fee and provides for the disposition of the funds collected.

The title need not be an index or catalog of every power bestowed in the act, nor of every effect of the act. Opinion of the Justices, 262 Ala. 345, 349, 81 So.2d 277 (1955).

This Court has held that the title of an act levying a tax on persons selling malt or brewed, beverages which stated that the act was “to provide for the collection and distribution of the proceeds of said tax” satisfied § 45. Opinion of the Justices, 275 Ala. 254, 154 So.2d 12 (1963).

Although the title to Act 1403 speaks of a “fee” rather than a “tax,” it makes no difference, because, as we have already stated, the state has the right to combine the exercise of its police power with that of its taxing power. Furthermore, this Court has held that a license fee may include an amount added for revenue. Alabama Power Co. v. City of Carbon Hill, supra. Consequently, the use of the term “fee” does not mean that an amount has not been added for revenue, and a title which uses the term “fee” when an amount has been added for revenue is not misleading and does not mischaracterize the subject of the act, in our considered judgment.

II. The “Same Product” Issue

Section 9(h) of Act 1403 provides,

. . The inspection fee herein provided for shall be paid but once with respect to the same product, . . . .” [Emphasis supplied.]

The rerefined lubricating oil which Gur-ley Refining sold in Alabama was processed exclusively from waste oil acquired from a supplier located in Alabama. The supplier “certified” to Gurley Oil that he had collected the waste oil only from service stations located within Alabama.

The Gurleys’ expert witness testified that rerefined oil produced from waste oil is the “same product” as the virgin oil because it has the same molecular structure before it is used and after it is reprocessed. Other experts testified that rerefined oil is not the “same product” as the virgin oil because rerefined oil does not have the same physical characteristics and does not contain the same chemical additives as the virgin oil.

The trial court apparently accepted the testimony of the Gurleys’ expert and also assumed that the inspection fee had been previously paid on all of the waste oil from which the rerefined oil was produced. The court held that, since the rerefined oil was the “same product” on which the inspection fee had originally been paid, to require payment of the inspection fee on the rerefined oil would be to require payment more than once with respect to the “same product.”

We hold that rerefined lubricating oil is not the “same product” as the virgin lubricating oil which, after being used, has been reprocessed to produce the rerefined lubricating oil. It is irrelevant whether both have the same basic molecular structure or the same chemical composition. Whether the virgin oil and the rerefined oil are basically the same oil or not, they are not the “same product,” as the term is used in § 9(h) of Act 1403.

Just because the materials used to make a product are recycled over and over again does not make the result of each remanufacturing process the “same product.” We hold that the result of each such reprocessing is a “new product.”

The interpretation given to “same product” by the trial court and plaintiffs Gurley is inconsistent with the purpose of the act and the nature of the fee imposed. The act establishes an inspection program and imposes an inspection fee. An inspection is necessary every time the product of such a refining or rerefining process enters the market to determine whether that particular product meets the standards established by the state.

Section 2 of Act 1403 provides that persons selling, offering for sale, storing, or using petroleum products in this state must obtain a permit. In § 2, it is also provided:

“. . . This section shall not apply to any person selling or offering for sale or storing or using petroleum products obtained from a person that has compiled [sic] with the provisions of this act with respect to the same petroleum products.”

If “same petroleum products” means here what the trial court and plaintiffs say that “same product” means in § 9(h), then a person selling, storing, or using rerefined lubricating oil which had been reprocessed from waste oil collected in Alabama would not need to get a permit. That conclusion is not consistent with the purpose of the act.

We think that the intent of the legislature is that the person first selling, storing, or using any petroleum products in the state must comply with the provisions of the act, including payment of the inspection fee, and that those persons obtaining petroleum products from such a person need not also comply with the act. Thus, in § 9(h), the act provides,

“. . .It shall be the duty of the person first selling or storing or using any petroleum product in the state to pay said inspection fee. . The inspection fee herein provided for shall be paid but once with respect to the same product, . . . .”

The provision in question has nothing to do with encouraging recycling of petroleum products; it merely attempts to prevent the imposition of double liability for the inspection fee.

It is therefore that we reverse and remand this cause to the trial court for the entry of a judgment in conformity herewith.

REVERSED AND REMANDED.

JONES, ALMON, EMBRY and BEAT-TY, JJ., concur.


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    Ada COBURN and Louis Coburn v. AMERICAN LIBERTY INSURANCE COMPANY, a corporation, et al.
    SC 1864.
    Supreme Court of Alabama.
    Jan. 14, 1977.
    Robert W. Walker of Walker & Mus-grove, Florence, for appellants.

      Robert L. Gonce of O’Bannon & Gonce, Florence, for appellee, American Liberty Ins. Co.
   JONES, Justice.

This appeal, from defendants’ judgments in consolidated personal injury suits, challenges two adverse rulings by the trial Judge:

1. The granting of motions for a directed verdict on behalf of two of the three defendants; and

2. The overruling of plaintiffs’ motion to amend the pre-trial order to dissolve the severance of the issues of liability and damages previously ordered pursuant to Rule 42(b), ARCP. We find no error as to either ruling; therefore, we affirm.

Louis and Ada Coburn sued Martin Supply Company, Johnny Willis, an employee of Martin, and the American Liberty Insurance Company. Mrs. Coburn’s suit was based on personal injuries, and Mr. Co-burn’s suit was for loss of consortium. The Coburns charged Martin Supply and Willis with negligence for allegedly running a stop sign and American Liberty for coverage under an uninsured motorist policy.

The Coburns allege that Ada was a passenger in her automobile going west following another car, the driver of which is still unknown. This unknown driver either stopped or suddenly decreased his speed, causing the driver of the Coburn car to swerve into the eastbound lane to avoid collision. Consequently, a Martin Supply Company truck, driven by Willis, collided with the Coburn car. Because the Coburns could never determine the owner of the car in front, they sued their own insurer, American Liberty Insurance Company, under their uninsured motorist clause.

Following several pre-trial conferences, and because of the multiplicity of the parties and issues, the trial Judge, pursuant to Rule 42(b), ordered a severance of the issues of liability and damages — the question of liability as to all three defendants to be tried first. At the close of the evidence, the trial Judge granted a motion for a directed verdict in favor of Martin Supply and Willis.

After this motion was granted, the Co-burns asked the trial Judge to strike his pre-trial severance order and allow them to prove damages in their case against American Liberty. The Court overruled their motion and sent the case to the jury on the question of liability only. The jury returned a verdict in favor of American Liberty.

The Directed Verdict Issue

Counsel for the Coburns, in support of his contention that the trial Court erred in directing verdicts for Martin and Willis, “admits that evidence against these Defendants [Martin and Willis] was weak.” He contends, however, that, “in light of the Alabama Scintilla Rule, a jury question was made against these Defendants”; and he directs our attention specifically to Mrs. Coburn’s testimony.

We have carefully studied all of the evidence touching the plaintiffs’ claim of negligence on behalf of Martin Supply and Willis. The most favorable testimony, from which any possible inference of liability against these two defendants can be drawn, is that of Mrs. Coburn. The strongest tendencies of her testimony is to the effect that she saw the Martin Supply Truck approaching (from her left, traveling north) Highway 157 and County Line Road intersection; that Highway 157, on which she was traveling west, is a thoroughfare, guarded by a stop sign on County Line Road; that she does not remember whether the Martin Supply truck stopped before turning right (east) on Highway 157, and that, although she didn’t see the truck turn, she saw it coming (traveling east) from the intersection.

In light of the uncontradicted evidence that the Coburn car, in an effort to avoid collision with the vehicle to its front, skidded suddenly across the center line into the immediate path of the Martin Supply truck, we agree with the trial Judge that motions for directed verdicts on behalf of Martin and Willis were due to be granted. Whether tested by the substantial evidence rule or the scintilla evidence rule, the record reveals no evidence from which the jury could reasonably infer that Mrs. Coburn’s injuries were proximately caused by the negligence of Martin Supply’s driver, Willis.

To be sure, the trial Court must exercise extreme caution not to usurp the fact finding function of the jury; but it is the office of a directed verdict motion (Rule 50(a)) to test the sufficiency of the opponent’s evidence. And where, as here, the strongest tendencies of all the evidence fall short of raising a reasonable inference of the movant’s alleged liability, the motion is due to be granted; or, stated another way, at the close of all the evidence, there was nothing presented with respect to the claimed negligence of Martin Supply’s employee, Willis, on which the jury, as reasonable persons, may disagree.

The Severance Issue

Next, the Coburns contend that the trial Judge committed error in not striking his pre-trial severance order after granting the remaining defendants’ motion for directed verdicts. The need for severance, they say, was no longer present because the reason for severance in the first instance—multiplicity of parties and issues—no longer exist.

The Coburns urge us to adopt the position that it is error for the trial Judge to sever the issues of liability and damages in a simple negligence case. This we cannot do. The propriety of the trial Court’s order of severance in the first instance (i. e., before trial) cannot be seriously questioned. As stated in Wright & Miller’s treatise on Procedure, “Separation of issues of liability from those relating to damages is an obvious use for Rule 42(b).” Wright & Miller, Federal Practice and Procedure, § 2390.

The joinder of a tort claim against two defendants and a contract claim against American Liberty, with varying measures of damages applicable to each claim, virtually mandated resort to the severance procedure of Rule 42(b).

Once the severed issue of liability proceeded to the close of the evidence as to all three defendants, the request to strike the earlier order of severance, and permit plaintiffs to reopen the trial to include the issue of damages, addressed itself to the sound discretion of the trial Court. The trial Judge was in position to evaluate, within the posture of the case, the matter of trial convenience and to shape the order of trial; and, in the context here presented, we find no abuse of discretion in the trial Court’s refusal to amend its pre-trial order.

A word of caution in conclusion: Nothing contained in this opinion should be construed as approving the separation of the issues of liability and damages in personal injury cases as a matter of routine. Ordinarily, these issues are not to be separated for purposes of trial; and any speculative savings of time and expense, which may result from routine bifurcation of jury negligence trials, does not constitute sufficient grounds for exercise of the severance prerogatives of Rule 42(b). Within the spirit of Rule 42(b), separation of issues of liability from those relating to damages, while authorized, is to be ordered sparingly and in those rare and exceptional cases of which the instant case should serve as an example. See Advisory Committee notes to the 1966 amendment to Rule 42(b), 39 F.R.D. 113. See, also, Bowen v. Manuel, 144 So.2d 341, 343 (Fla.App.1962); and Key v. Hughes, 158 Tex. 362, 311 S.W.2d 648 (1958). For a good discussion of the distinction between severance of actions and separate trials, see Key v. Robert M. Duke Insurance Agency, Ala., 340 So.2d 781 [1976].

AFFIRMED.

BLOODWORTH, ALMON, EMBRY and BEATTY, JJ., concur.


text:
    Daniel Cecil SMITH and wife, Zula M. Smith v. Olan CLARK.
    SC 1936.
    Supreme Court of Alabama.
    Jan. 14, 1977.

      Kenneth L. Funderburk, Phenix City, for appellants.
    Larry W. Roney, Phenix City, for appel-lee.
   BLOODWORTH, Justice.

Defendants appeal from a judgment, for plaintiff in a boundary line dispute. We affirm.

In 1946, H. F. Adams was the owner of all the land in question. On part of the land, he constructed a two-room house for occupancy by his daughter.

In 1946, Adams executed a deed by which he sought to convey to Seth E. Day the house and the parcel of land on which it was located. The deed to the parcel provided for a width of 50 feet running north and south and for a depth of 150 feet running east and west. As described, the parcel included only a small portion of the house, which was intersected by the parcel’s southern boundary. Day moved into the house, and he and his successors in title, including defendants Smith, occupied' it to the time of the trial of this case. Defendants Smith and their predecessors in title actually occupied and used some land that was not included in the description in their deeds.

In 1953, Adams conveyed the land to the north and south of the parcel to plaintiff Clark. The description in the deed to Clark corresponded with that in the deed to Day.

The trial court held, and it is undisputed on appeal, that a new southern boundary was established by more than 20 years of adverse possession. That boundary is a hedgerow which runs from a point at the western edge of the property approximately 40 feet south of the described boundary to a point at the eastern edge of the property approximately 24 feet south of the described boundary.

The trial court held that a new northern boundary was created by adverse possession by plaintiff Clark and that it runs parallel to and lies 50 feet north of the hedgerow. The trial court also held that defendants had acquired an easement for a driveway over a portion of the property lying between the new northern boundary and the northern boundary described in defendants’ deed.

Defendants contend that the northern boundary should be that described in their deed. Defendants argue that the trial court erred in fixing the northern boundary because there was no dispute regarding the northern boundary.

In 1973, when plaintiff and defendants first learned that the recorded boundaries were not located where they had thought, they agreed that the recorded boundaries would be honored and that defendants would remove their house from that part of the land which lay below the recorded southern boundary.

Defendants contend that the trial court erred in not giving effect to the agreement. Plaintiff admits that there was such an agreement, but contends that it is without effect because defendants did not remove the house but built on to it and because defendants refused to recognize the boundary lines agreed on.

We hold that the agreement did not establish the northern boundary as defendants contend. Defendants have not shown that they occupied the land up to the agreed-upon boundary for ten years, nor have they shown that the agreement was followed by acquiescence and possession by both adjoining owners up to the line agreed upon. See Lay v. Phillips, 276 Ala. 273, 161 So.2d 477 (1964); Baldwin v. Harrelson, 229 Ala. 469, 158 So. 416 (1934). Furthermore, this Court should not enforce an agreement where the party seeking to enforce the agreement has failed to perform his part of the bargain.

Defendants’ contention that the complaint shows that the northern boundary was not disputed is incorrect. In his complaint, plaintiff claimed that he had adversely possessed the land down to the new northern boundary and states that defendants had actual possession to that boundary only.

Defendants further contend that the trial court determined the northern boundary without sufficient physical evidence. They point out that the only physical evidence relied on by the court in determining the northern boundary was a large pine tree. They argue that the location of that pine tree was never established and further that a line cannot be established from a single point. Plaintiff replies that the hedgerow along the southern boundary was an adequate point of reference for determining the northern boundary of a 50-by-150 foot lot.

The principle governing review of the evidence in boundary cases is set forth in Barnett v. Millis, 286 Ala. 681, 684, 246 So.2d 78, 80 (1971):

“The rule has been applied in boundary line disputes that questions of adverse possession are questions of fact properly determined by the trier of facts and the determination so made, where the evidence is taken orally, as here, is favored with a presumption of correctness and will not be disturbed on appeal unless plainly erroneous or manifestly unjust.
“The reason frequently given for that rule is that the trial court can better judge the credibility of witnesses by seeing and hearing them testify. That rule is particularly appropriate in this case because most of the witnesses were questioned about lines, locations, distances, monuments, culverts, fences and the like which appeared on a diagram which had been drawn on a blackboard.
“The answers of the witnesses given in response to questions so propounded are meaningless to us, since we do not have the pointing finger or any information which enables us to determine the particular line, location, distance, monument, culvert or fence to which the witness referred. The trial court was not so limited. . . . ”

On examination of the record in this case, we find ourselves in a position similar to that in which we found ourselves in Barnett. The record contains numerous indications that the witnesses were pointing to positions on various exhibits. Neither party has taken the trouble to preserve a record as to these references. Although the pine tree was the only specific point mentioned, we cannot say from the record that it was the only physical evidence on which the trial court could rely. The trial court saw the positions on the exhibits to which the witnesses pointed. We have not. We cannot say that his findings are “clearly erroneous.” Thus, under Rule 52, ARCP, and the presumption stated above in Barnett, we will not set aside his findings regarding the location of the northern boundary in this case where supported by credible evidence.

Finally, defendants contend that plaintiff failed to show clear and convincing evidence of actual, clear, definite, positive, notorious, open, continuous, adverse, and exclusive possession of the land claimed. They argue, moreover, that the trial court’s granting of an easement to defendants over the land in dispute is inconsistent with a finding that plaintiff had exclusive possession of the property claimed. Plaintiff replies only that the testimony supports his claim of adverse possession.

Again, the evidence on this point is such that we cannot say that the trial court’s finding is “clearly erroneous” under Rule 52, ARCP. Thus, we will not set aside the trial court’s finding that plaintiff had such possession of the land in question, excluding that part over which an easement was granted, so as to give him title by adverse possession. Such possession is sufficient in our judgment to establish the northern boundary line.

Moreover, although the trial court’s grant of an easement may appear to be inconsistent with its grant of title by adverse possession, this inconsistency is a problem only with reference to that part of the land over which the easement was granted. Neither party argues that the grant of the easement was error; thus that issue is not before us.

AFFIRMED.

JONES, ALMON and EMBRY, 33., and SIMMONS, Retired Circuit Judge, concur.