author: BROOM, Justice: SUGG, Justice

text:
    CAPITAL TRANSPORT COMPANY v. Linn W. McDUFF.
    No. 48260.
    Supreme Court of Mississippi.
    Oct. 6, 1975.
    Rehearing Denied Oct. 27, 1975.

      Brunini, Everett, Beanland & Wheelers, Loyacono, Vicksburg, for appellee.
    Ramsey, Bodron & Thames, P. Kelly Loyacono, Vicksburg, for appellee.
    Before GILLESPIE, C. J., and ROBERTSON and BROOM, JJ.
   BROOM, Justice:

This tort case arising out of an intersec-tional vehicular collision was brought by appellee (plaintiff), McDuff, against the appellant (defendant), Capital, and its truck driver agent, Meadows. A jury verdict in the amount of $50,000 was returned in favor of appellee as against Capital Transport only. We affirm.

The controlling issue is: Where a master and servant are made joint defendants to a suit based solely on the servant’s tor-tious conduct, can a verdict against the master only be upheld ?

Scene of the accident injuring appellee on January 24, 1972, was the intersection of U.S. Highway 61 and the old Mississippi River bridge just south of Vicksburg. Admittedly, the negligence of Meadows, the driver of Capital’s Mack truck filled with 8,000 gallons of gasoline, was the sole negligence complained of and the jury was so instructed. Appellee’s version was that he entered the intersection (headed east) from a stopped position after the traffic signal facing him turned green. His case was based upon evidence that appellant’s driver (headed south on Highway 61) ran a red light and hit appellee. Truck driver Meadows said he lawfully entered the intersection on a green light, and that the cause of the collision was appellee’s “jumping” his light and entering the intersection without looking.

On a substantial issue of material fact the case was submitted to the jury by instructions on the negligence of the agent Meadows and the liability of Capital “for the negligence, if any, of its driver, Jim Meadows, if he were operating his truck within the scope of his employment.” The jury’s verdict was:

“We, the jury, find for the Plaintiff, Linn W. McDuff, against the Defendant Capital Transport Company, Inc. and assess his damages at $50,000.”

The verdict was silent as to the co-defendant Meadows, the driver agent. In the trial court’s judgment entered against Capital was an adjudication that:

“No verdict having been rendered against the Defendant, Jim H. Meadows, judgment is hereby rendered in favor of the Defendant Jim H. Meadows and this cause is hereby dismissed with prejudice as to Jim H. Meadows.”

Capital filed a Motion for Judgment Notwithstanding the Verdict. The motion asserted that exoneration of the agent from negligence (when the only negligence charged against Capital arose out of the acts of its agent Meadows), should also exonerate the principal, Capital. Capital also moved for a new trial, but both motions were overruled. No appeal was taken by plaintiff (appellee) from the judgment in favor of Meadows.

I.

For some time it has been the established law in this state that a case will not be reversed simply because a master is held liable where the servant is exonerated. Should it be admitted (for discussion purposes) that the verdict is irregular and that under the doctrine of respondeat superior the jury should have returned its verdict against both the master and the servant, such a result is no valid argument to deprive the appellee of the verdict which he did obtain. Gulf Refining Co. v. Myrick, 220 Miss. 429, 71 So.2d 217 (1954); Rawlings v. Inglebritzen, 211 Miss. 760, 52 So.2d 630 (1951); I.C.R.R. v. Clark, 85 Miss. 691, 38 So. 97 (1905).

In a 1971 case, D. W. Boutwell Butane Company v. Smith, 244 So.2d 11 (Miss.1971), this Court refused to set aside a jury verdict rendered against the master only. There the master’s liability depended solely upon the negligence of its co-defendant and servant who was not included in the judgment. Boutwell is strikingly similar to the present case and we think the result reached therein was correct. Here as in Boutwell the evidence shows that the plaintiff was injured as the direct result of the servant’s negligence which was imputed to the master.

It is argued that the rule in this jurisdiction which permits a verdict and judgment against the master only when both the servant and master are sued jointly is contrary to the great weight of authority. We are urged to overrule the cases cited above and no longer permit such a verdict and judgment against the master only.

While Mississippi may, in a sense, be said to be in the minority on this question, this state has a statute, Mississippi Code Annotated section 11-3-37 (1972) which places the appellant here in a different posture from that which he would occupy in other states having no such statute. The statute has been in force since the Code of 1880 and a portion of it reads:

[0]ne of several appellants shall not be entitled to a judgment of reversal because of an error in the judgment or decree against another, not affecting his rights in the case.

Since just after the turn of the century the quoted language as spoken by the legislature has been construed by this Court, in an unbroken line of cases, to mean that a master, such as appellant here, cannot complain of a verdict against him only. I.C.R.R. v. Clark, supra; Boutwell, supra. Knowing of our construction, the legislature has not seen fit to alter or repeal the statute.

Even if we had no such statute, the appellant cannot be logically heard to say that the judgment must fail merely because the jury wrongfully omitted its servant (truck driver) from the verdict. Of what avail should it be to appellant that its co-defendant (servant) was so fortunate as to be let out or even given a windfall? The appellee (plaintiff) is the only one who has posture to raise such a complaint and he has not cross-appealed. In this regard, rather than concluding the jury exonerated the truck driver, it is equally logical, if not more so, to conclude that the jury found him guilty of negligence, Otherwise, the verdict could not be explained and the verdict of a jury must be accorded the presumption of rightfulness. Appellant argues that the jury exonerated the driver and erred in not exonerating appellant. Conversely (had he cross-appealed) appel-lee could make the equally valid argument that the jury erred not in returning the verdict against appellant but by its failure to return a verdict against the truck driver. We deem it inappropriate and unnecessary to second guess the jury and say what it intended to accomplish by naming only appellant in finding for appellee.

Even though appellant and its servant, the truck driver, were not joint tort-feasors, they are jointly and severally liable. The appellee could have taken a non-suit at any time before the case was submitted to the jury. As was said by Griffith, J., in the Court’s opinion in Thomas v. Rounds, 161 Miss. 713, 137 So. 894 (1931):

Appellee therefore could have sued appellant, Thomas, alone, and for the same reason may, as she did, take judgment alone against him. The doctrine in its practical application, in the matter of the entry of judgments, has been carried even further than is here involved, as' may be seen in Illinois Cent. R. Co. v. Clarke, 85 Miss. 691, 38 So. 97, and in St. Louis & S.F.R. Co. v. Sanderson, 99 Miss. 148, 54 So. 885, 46 L.R.A. (N.S.) 352. (161 Miss. at 718-19; 137 So. at 894.)

To rule that the verdict and judgment against Capital should be reversed because the jury may have erred as to the truck driver would compound the error. It can hardly be urged as a legal principle that the end justifies the means or that two wrongs make a right. We are not willing to pyramid one error on top of another to reach a result desired by a litigant even though its co-defendant was not literally held liable by the jurors on account of apparent lenity or failure to speak their real conclusions.

In its scholarly brief Capital urges that Myrick, supra, should be expressly overruled and that clarification should be made of Boutwell, supra. Interesting here is the fact that at the trial level Capital made no objection to appellee’s instruction which expressly authorized the jury to find against Capital only. Rather than unduly monitoring the jury, or second guessing it, or prospectively ruling that a jury cannot find against the master only as was done in this case, our task as an appellate court is to determine whether or not the verdict against Capital only was justified upon the law and the evidence. We conclude the record establishes such justification on the law and evidence notwithstanding Capital’s truck driver could have justly suffered a verdict against him.

II.

The only other assignment of error which we reach is the argument that the amount of the $50,000 verdict included punitive damages and could not be justified on the basis of actual damages alone.

According to the record, the appellee established over $3,000 expenses related to his hospitalization, doctor and medical bills. His spleen was ruptured, necessitating its surgical removal. As a result of the sple-nectomy, blood filled his abdominal cavity, requiring that it be periodically cleaned out. In addition to this, he had five ribs fractured in the accident as well as a blood clot in his left lung. Appellee’s physician, Dr. McPherson, testified that he was in constant and severe pain, made more intense by being required to clear his lungs by coughing as much as possible in order to avoid the danger of pneumonia. The pain and agony suffered by the appellee was so excruciating that in order to comfort him he was administered morphine, phenaphel, and dilaudid.

While the amount of the verdict may be in excess of what this Court would have rendered, we cannot say that it was not supported by the evidence, or that it was not responsive to the evidence, or that it was so excessive as to indicate either bias or prejudice on the part of the jury. We do call to the attention of trial judges and attorneys that it would be appropriate (in cases where both actual and punitive damages are sought) to insure that jury verdicts reflect precisely the amount of actual damages and the amount of punitive damages awarded. In such cases the jury should be instructed to cause their verdict to reflect separate amounts for actual and punitive damages. This would obviously have the salutary effect of making lighter the burden of this Court (and trial courts) when considering questions related to the adequacy, excessiveness, or validity of jury verdicts.

Affirmed.

The case was considered by a conference of the Judges en banc.

GILLESPIE, C. J., RODGERS, P. J., and INZER and WALKER, JJ., concur.

SUGG, PATTERSON, SMITH and ROBERTSON, JJ., concur in part and dissent in part.

SUGG, Justice

(concurring in part and dissenting in part):

I concur with the majority that this case should be affirmed. However, I do this only because the case was tried and the jury was instructed in accordance with the rule laid down in Railroad Co. v. Clarke, 85 Miss. 691, 38 So. 97 (1904).

In Clarke, the Railroad Co. and its engineer were sued for damages. The jury returned a verdict against the Railroad Co. but in favor of the engineer. The Court affirmed and stated that, although the engineer and Railroad Co. were equally liable, the liability was based on different legal principles, the engineer because of his personal trespass, the Railroad Co. because of its failure to discharge a non delegable duty to the public regarding the management of its locomotive. When the Court held that the Railroad Co. was liable because of its failure to discharge a non del-egable duty, it was stating in another way that the Railroad Co. was vicariously liable for the tort of its servant. The vicarious liability of a master has been referred to as imputed negligence, constructive liability and respondeat superior, but the liability of the master is the same regardless of the terminology used.

In Railroad Co. v. Sanderson, 99 Miss. 148, 54 So. 885 (1910), the Court added a new reason for affirming recovery against a master for the tort of its servant. The Court held that a verdict for the plaintiff against the Railroad Co., and against the plaintiff in favor of the conductor, although apparently inconsistent, presented no ground for reversal of the judgment against the Railroad Co. in view of Section 4944, Code of 1906 [now Mississippi Code Annotated section 11-3-7 (1972)] . These cases have been followed many years, the most recent case being Boutwell Butane Co. v. Smith, 244 So.2d 11 (Miss.1971).

Section 11-3-37 is properly applied when joint tort feasors are sued. There is a well recognized distinction between “joint tort feasors” and the vicarious liability of a master where the liability of the master is base solely on the negligence of the servant. This distinction was put in its proper perspective by Justice Griffith in Granquist v. Crystal Springs Lumber Co., 190 Miss. 572, 1 So.2d 216 (1941), in the following language:

The term “joint tort feasors” means that two or more persons are the joint participants or joint actors, either by omission or commission, in the wrongful production of an injury to a third person. There the act or omission of each is his own act or omission, but the acts or omissions are concurrent in, or contribute to, the production of the wrongful injury, so that each actor is, on his own account, liable for the resulting damages. But when the liability of a principal for the tort of an agent, or that of the master for the wrong of a servant, has grown out of a tort in which the agent or servant is the sole actor, whence the liability of the principal or master is an imputed or constructive liability and has its sole basis in the doctrine of respondeat superior and in nothing else, the liability is joint and several, but they are not joint tort feasors. (190 Miss. at 581, 1 So.2d at 218)

The statute should be applied in the case of joint tort feasors because in such cases the separate actions of two or more persons wrongfully produce an injury to a third person. A jury may find that only one of the actors was negligent and thus absolve the others from liability without the verdict being inconsistent. However, the statute should not apply in the case of master and servant, or principal and agent, where the servant or agent is the sole actor. When such servant or agent is acquitted by a jury, there is no rational basis to hold that the master or principal remains liable. When the person whose negligence causes an injury is acquitted, but in the same verdict his employer or principal is held liable, and where the liability of the employer or principal can only arise from the negligence of the person acquitted, such verdict is manifestly unjust. The statute should not be used as a shield against correcting such injustice.

In Granquist, supra, Granquist sued Thorpe A. Huntington the servant of Crystal Springs Lumber Co. in U. S. District Court and obtained a judgment against Huntington for $500. Granquist then sued Crystal Springs Lumber Co. which plead Granquist’s judgment against its servant as a bar in the subsequent action against it. A demurrer to the plea was overruled, Granquist declined to plead further, and his suit was dismissed. On appeal the case was affirmed, and this Court noted that the issue was summarized in the brief of counsel as follows:

“The sole and one question here presented is whether the recovery of a valid, collectible judgment against a servant, with full knowledge of all the facts, is a bar to a subsequent action against the master whose liability arises solely and alone by virtue of the doctrine of re-spondeat superior, and without fault on his own part, the latter action being for the identical act of negligence.” (190 Miss. at 581, 1 So.2d at 218)

The rule thus obtains in this state that, in actions based solely on the tort of a servant, if the plaintiff recovers against a servant he may not thereafter recover against the servant’s employer for the same injury. Two corollaries naturally follow: (1) In actions based solely on the tort of a servant, if the plaintiff recovers against the servant’s employer, he may not thereafter recover against the servant for the same injury. (2) In actions based solely on the tort of the servant, if plaintiff fails to recover against the servant, he may not recover against the servant’s master for the same injury in the same or a subsequent action. •

The second corollary, which is the majority rule in the United States, may be stated as follows: where a master and servant are sued jointly in an action based solely on the tortious conduct of the servant, and the servant is acquitted, there can be no recovery against the master. 53 Am.Jur.2d Master and Servant § 406 at 413, 57 C.J.S. Master and Servant § 619b at p. 421. Numerous cases support the majority rule.

The rationale of Clarke, Sanderson and their progeny has been the subject of criticism by this Court. In Gulf Refining Co. v. Myrick, 220 Miss. 429, 71 So.2d 217 (1954), Justice Roberds, in a separate opinion stated:

I do not dissent in this case because the cases cited have held that the master may be liable for negligence of the servant even though the jury finds the servant is not negligent. However, it is opportune for me to say that in my opinion such a conclusion violates all logic, reason and common sense. (220 Miss. at 438, 71 So.2d at 220-221)

Since Clarke and Sanderson have been followed for many years, they should not be overturned except prospectively. I dissent to the extent of following these cases in the future and would announce that, in all cases tried after the publication of this opinion, where the liability of the master or principal rests solely on the act of a servant or agent, a verdict for the servant or agent would be a verdict for the master or principal.

PATTERSON, SMITH and ROBERTSON, JJ., join in this dissent.

      . In all cases, civil and criminal, a judgment or decree appealed from may be affirmed as to some of the appellants and be reversed as to others; and one of several appellants shall not be entitled to a judgment of reversal because of an error in the judgment or decree against another, not affecting his rights in the case. And when a judgment or decree shall be affirmed as to some of the appellants and be reversed to others, the case shall thereafter be proceeded with, so far as necessary, as if the separate suits had been begun and prosecuted ; and execution of the judgment of af-firmance may be had accordingly. Costs may be adjudged in such cases as the supreme court shall deem proper.


source: Caselaw Access Project

license: Public Domain

text:
    Leroy A. HARDY v. Annie M. HARDY.
    No. 48334.
    Supreme Court of Mississippi.
    Sept. 29, 1975.
    Rehearing Denied Oct. 27, 1975.
    James Sideris, Gulfport, for appellant.
    Armstrong & Hoffman, John T. Armstrong, Jr., Hazlehurst, for appellee.
    Before PATTERSON, INZER and WALKER, JJ.
   Appeal from Chancery Court, Copiah County; Mike Carr, Chancellor.

Affirmed.


author: HEFLIN, Chief Justice.

text:
    In re Vernon CUMENS v. William E. GARRETT and wife, Ruth Garrett. Ex parte William E. GARRETT and wife, Ruth Garrett.
    SC 1198.
    Supreme Court of Alabama.
    Sept. 25, 1975.
    James & Lowe, Haleyville, for petitioner.
    Carlton Mayhall, Jr., pro se.
   HEFLIN, Chief Justice.

This case is before the court on petition by William and Ruth Garrett seeking a writ of mandamus to be issued to the Honorable Carlton Mayhall, Jr., Judge, Circuit Court of Winston County. The petition asserts that Judge Mayhall committed error by striking the Garretts’ demand for jury trial in the action below. This court agrees.

Vernon Cumens instituted a mechanic’s lien enforcement suit under the authority of Title 33, Section 37, Alabama Code of 1940, as amended (Recompiled 1958) et seq. The Garretts demanded a jury trial. Cumens moved to strike the demand and, upon a finding that there was no right to a jury trial in a mechanic’s lien action, Judge Mayhall granted the motion. The suit was filed after the Alabama Rules of Civil Procedure became effective. Thus the question before this court is whether parties to a mechanic’s lien suit are entitled to a jury trial as of right under the Alabama Rules of Civil Procedure, which have merged law and equity into one form of action.

Rule 38(a) of the A.R.C.P. réads: “The right of trial by jury as declared by the Constitution of Alabama or as given by a statute of this State shall be preserved to the parties inviolate.” This rule was included to insure that the right of trial by jury in civil actions would not be compromised by the merger of law and equity established by the new rules of civil procedure. The test for determining when one has a right to trial by jury is set out in the committee comments to Rule 38 as follows: “if an issue is of a sort which heretofore would have been tried to a jury, then the party has a constitutional right * * * to have it tried to a jury under the merged procedure.”

The action to enforce a lien for work and labor done and materials furnished in the erection of a building is derived from, and wholly dependent upon, statute. First Colored Cumberland Presbyterian Church v. W. D. Wood Lumber Co., 205 Ala. 442, 88 So. 433 (1921). The mechanic’s lien statute created “a new right unknown to courts of law or of equity.” Chandler v. Hanna, 73 Ala. 390, 391 (1882). The pertinent jurisdictional provision of the mechanic’s lien statute appears at Title 33, Section 48, Code of Alabama, 1940 (Recompiled 1958) and is as follows:

“When the amount involved exceeds fifty dollars, actions for the enforcement of liens under this article may be brought in the circuit court or court having like jurisdiction, of the county in which the property is situated, and where resort is had to chancery proceedings in circuit court, no special ground of equitable jurisdiction need be alleged or proved. * * * »

This provision has been interpreted to give a lien claimant “a concurrent remedy in equity.” Floyd v. Rambo, 250 Ala. 101, 104, 33 So.2d 360 (1948); Woodall v. Southern Mfg. Co., 223 Ala. 262, 135 So. 446 (1931); Mathis v. Holman, 204 Ala. 373, 85 So. 710 (1920). Other statutes pertinent to the decision in this case are sections 49 and 52 of Title 33. Section 49 reads:

“Such actions, when brought in the circuit court or court of like jurisdiction, shall be commenced by summons and complaint, and when before justice of the peace, by summons. The complaint, or, when brought before justice of the peace, the statement indorsed on the summons, shall contain a description of the property on which the lien is claimed, and shall allege the facts necessary to entitle the plaintiff to the lien and the enforcement thereof; in all other respects, the pleadings, practice, and proceedings shall be the same as in ordinary civil actions at law.” (emphasis added).

Section 52 provides:

“Any defendant, by appropriate plea, may put in issue the fact of indebtedness, or the existence of the lien, or both, and may interpose any other defense applicable to the suit; and if the court by its finding, or the jury by their verdict, as the case may be, ascertain that the plaintiff has a lien as claimed, judgment shall be rendered for the amount secured thereby, interest and costs, against the party liable for the same, and establishing the lien, and condemning the property to sale for the satisfaction thereof; but if the finding or verdict is for the plaintiff only on the issue of indebtedness, a judgment shall be rendered in his favor for the amount thereof as in other cases.” (emphasis added).

The case of Ex parte Spence, 271 Ala. 151, 122 So.2d 594 (1960), which was decided prior to adoption of the Alabama Rules of Civil Procedure, is the most recent case to address the issue of right of trial by jury in a mechanic’s lien suit. In Spence, a writ of mandamus was sought to compel the trial judge to set aside an order overruling petitioner’s motion to strike a jury demand in a mechanic’s lien suit brought in equity. Thus, in Spence, the trial court was going to allow a trial by jury in a mechanic’s lien suit begun in equity. This court granted the writ, ordering the trial judge to strike the jury demand. In its analysis of the issue of jury trial this court quoted from the case of Lucas v. Scott, 247 Ala. 183, 184, 24 So.2d 540, 541 (1945):

“In equity, a party is not entitled, as of right, to a jury to decide the issues of fact unless it is so provided by statute or constitution. In the absence of such a provision of the power and duty to determine finally all questions of fact and law devolve upon the court. Curb v. Grantham, 212 Ala. 395, 102 So. 619; 30 C.J.S., Equity, p. 892, § 495.
“Under such a status the court may submit an issue of fact to the jury for decision, but the verdict is advisory merely and for the purpose of ‘enlightening the conscience of the chancellor,’ which he, in his discretion, may reject. Alabama, Tenn. & Northern Ry. Co. v. Aliceville Lumber Co. et al., 199 Ala. 391, 403, 74 So. 441, 446; Hill v. Lindsey, 223 Ala. 550, 137 So. 395; Tuscaloosa v. Shamblin, 233 Ala. 6, 169 So. 234; Wilbourne v. Mann, 203 Ala. 26, 81 So. 816; 53 Am.Jur. 781, § 1124; 19 Am.Jur. 272, § 398, 277, § 404.”

The court then stated:

“In our opinion, no statute which has been brought to our attention provides for a jury trial as a matter of right in a mechanic’s lien suit brought in an equity court.”

Both sections 49 and 52 of Title 33 were discussed and it was determined that neither mandated a jury trial as of right. In discussing section 49, the court stated:

“We will not undertake to give a detailed account of the history of our mechanic’s lien law. Suffice it to say that a careful study of the history of such legislation convinces us that the Legislature by simply conferring on courts of equity the authority to handle mechanic’s lien suits did not intend that the rules of pleading, practice and procedure in the law courts should prevail on the equity side.”

Section 52 was dismissed with the statement, “We find no support in the provisions codified as § 52, Title 33, Code 1940, for the position taken by the trial judge.” The court then went on to note that even if there was a right to a jury trial, as determined by the trial judge, the respondent below had failed to make a timely request for jury trial, and, thus, the trial judge should not have granted his request.

The case of Wilbourne v. Mann, 203 Ala. 26, 81 So. 816 (1919), was cited in Spence as support for the court’s decision. In the Mann decision, the following was stated:

“The bill was to enforce a mechanic’s lien on real properties subject to mortgage.
“The mortgagee, appearing (in equity) by demurrer and answer, demanded a trial by jury of the questions ‘of fact involved,’ which request was not granted by the court. It was not a case where such demand may be made as a matter of right. Code, 1907, § 3201; * * * Gen.Acts 1915, p. 939.” (emphasis added).

Thus this court is on record as holding that if a mechanic’s lien suit is brought in equity a party is not entitled to a jury trial as a matter of right and that Sections 49 and 52 are not controlling.

On the other hand, if the suit is brought at law, a different result prevails for this court has held that the jury provision of the mechanic’s lien statutes are controlling and the right to a trial by jury is available.

The case of Foster v. Prince, 224 Ala. 523, 141 So. 248 (1932), involved a law side action to enforce a materialman’s lien where a jury verdict was rendered, assessing damages only. Several months later, plaintiff filed a motion to amend the judgment to declare that a lien existed. The court, without a jury, declared a lien and condemned the property to be sold in satisfaction of the earlier damage verdict. This court found the trial court’s action to be in error. It stated:

“[1] To enforce a materialman’s lien, the complaint must allege the facts which entitle plaintiff to a lien and the enforcement thereof. These facts include the existence of the debt and of the special facts giving a materialman’s lien on the property as security for the debt, facts showing a lien has attached, and has been preserved by the statement required by law to be filed in the office of the judge of probate.
“[2] When put in issue, the burden is on plaintiff to prove all the facts essential to the existence and enforcement of his lien. Sanitary Plumbing Co. v. Simpson, 200 Ala. 590, 76 So. 948.
“By statute, the defendant, by appropriate plea, may put in issue the existence of the debt, or the existence of the lien, or both. Code, § 8848.
“[3] The general issue traverses all the material averments of the complaint, and casts on plaintiff the burden of proof as to the existence of the debt and also of the lien.
“[4] When, as here, a jury is demanded, all these issues are for the jury. If, under the evidence, the jury found the issue of indebtedness for the plaintiff, but failed to find the existence of a lien, the statute declares a judgment should go for the amount thereof.
“Such was the verdict here.
“[5,6] If the verdict does not respond to all the issues, as per instructions, the court should decline to receive the verdict and have the jury return a verdict covering the issues presented.
“It is error for the court then, or at any other time, to proceed to determine the issues upon the evidence, and render a judgment accordingly. From our earliest judicial history, such course has been held an invasion of the province of the jury.” (citations omitted) (emphasis added).

In Hurst v. Rudder Adams-Mill Co., 164 Ala. 504, 51 So. 519 (1909), this court stated:

“Action by appellee against appellants to enforce lien for materials furnished in construction of a building. The appeal is on the record alone. The judgment is valid on its face. It shows that the parties were before the court at the time the judgment was rendered. The argument of counsel for appellant seems to be that error infected the proceeding because of the asserted failure to take a jury’s verdict on the question, whether there was a debt due the plaintiff for materials furnished, and, if so, how much, and whether the plaintiff had a lien therefor.
“Section 4770 [Title 33, Section 52, Code, 1940] of the Code contemplates a trial of these issues by the court without a jury, or by a jury. The record (there is no bill) does not negative a waiver of a submission of the issues to the jury. To sustain the judgment we will presume, if necessary, that the right to a jury trial was waived. * * * ”

At the time that the Alabama Rules of Civil Procedure became effective (July 3, 1973) there were two lines of cases dealing with the right of trial by jury in mechanic’s lien enforcement actions. If the action was filed in equity, the right to a trial by jury did not prevail but if the case was filed on the law side the litigants had the right to demand a jury trial.

The merger of law and equity under the Alabama Rules of Civil Procedure presents an unusual problem in regard to whether or not a right of trial by jury shall be available as a matter of right to the parties. This issue can not be determined by the test outlined in the Committee Comments to Rule 38(a) heretofore mentioned because such comments do not address the issue of the right to a jury trial where it was available on the law side but not in equity prior to merger. Thus, this court must decide whether there is a present right to a jury trial by looking to other factors.

It has been held by several courts that trial by jury is a favored mode of trial. See Department of Public Works & Buildings v. Melling, 78 Ill.App.2d 37, 222 N.E.2d 515 (1966); Royer v. Royal Globe Insurance Co., 262 La. 685, 264 So.2d 607 (1972); Watkins v. Siler Logging Co., 9 Wash.2d 703, 116 P.2d 315 (1941); Doughty v. Nebel Towing Co., 270 F.Supp. 957, 960-62 (E.D.La.1967). Also, in cases where the right is not clear, it has been held that “the right to a jury trial is always preserved.” Bain v. Wallace, 167 Wash. 583, 10 P.2d 226 (1932); see Watson v. Hartford Accident & Indemnity Co., 214 So.2d 395 (Ct. of App., La.1968). In construing Rule 38 of the Federal Rules of Civil Procedure, the United States Supreme Court has shown a decided preference for finding in favor of right to jury trial where the issue is in doubt. See Ross v. Bernhard, 396 U.S. 531, 90 S.Ct. 733, 24 L.Ed.2d 729 (1970); Dairy Queen, Inc. v. Wood, 369 U.S. 469, 82 S.Ct. 894, 8 L.Ed.2d 44 (1962); Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 79 S.Ct. 948, 3 L.Ed.2d 988 (1959).

In looking to the mechanic’s lien statutes before us, it is clear that the legislature concluded that issues involved in such cases were not beyond the pale of jury determination. Further, it is clear that a jury was available on demand prior to the adoption of Alabama Rules of Civil Procedure in some circumstances. These factors, plus an abiding faith that litigants should have a right of trial by jury in the absence of compelling constitutional or legal reasons to the contrary, motivates this court to hold that the parties to a mechanic’s lien enforcement action have the right to demand a jury trial under the Alabama Rules of Civil Procedure.

By the use of special verdicts provided for by Rule 49(b), Alabama Rules of Civil Procedure, problems which heretofore existed with jury determinations of issues in mechanic’s lien enforcement action can be minimized.

From this conclusion it follows that a writ of mandamus is due to be awarded unless the respondent judge, after being advised of this opinion, enters an order setting aside his order granting Cumens’ motion to strike the Garretts’ demand for a jury trial and enters an order overruling that motion.

The petitioners sought this writ on one other ground which should be commented upon. They seek to have this court order the respondent judge to grant their motion to transfer this case to the “law docket.” Under the Rules and the merger of law and equity, there should be no law docket in the circuit court. We understand petitioners to be seeking by this motion to have their case placed on a jury docket and tried to a jury. Because our decision herein gives petitioners the relief they were seeking, it is not necessary to address the request for transfer.

Writ awarded conditionally.

MERRILL, MADDOX, JONES and SHORES, J J., concur.


author: ALMON, Justice.

text:
    John T. PARKER v. The CITY OF FULTONDALE, etc.
    SC 787.
    Supreme Court of Alabama.
    Sept. 4, 1975.

      John Martin Galese, Birmingham, for appellant.
    Norris & Davis, Birmingham, for appel-lee.
   ALMON, Justice.

This is an appeal from a judgment entered in a declaratory action wherein appellant, John T. Parker, sought a declaration of his rights under a zoning ordinance of the City of Fultondale and requested that the court enjoin the city from revoking his license to operate an automobile repair shop within the City of Fultondale.

Appellant owned property within the city limits of Fultondale. On and before November 8, 1972, the property was zoned by the city and classified under its zoning ordinance as a “General Business District” under Article 4, Section 4, of the city’s ordinance as set out in pertinent part below:

“SECTION 4. General Business District.
“I. The regulations set forth in this Section or set forth elsewhere in this Resolution, when referred to in this Section, are the regulations in the General Business District.
“II. Use Regulations. A building or premises shall be used only for the following purposes:
4. Auto repair shops provided no vehicle is stored more than ninety (90) days unless in an enclosed building.
20. The following uses provided all materials are stored and all work done on the premises is done within a building:
a. Dyeing and cleaning establishment or laundry subject to Planning Commission approval.
b. Painting decorators.
c. Radio or television repair shop.
d. Dressmaking, millinery or tailoring establishment.
e. Upholstering shop, not involving furniture manufacturing.
f. Any other general service or repair establishment of similar character.”

This property was undeveloped land surrounded by a chain link fence. On November 8, 1972, appellant applied for and was issued a license by the City of Fultondale to operate an automobile repair shop. Thereafter, on November 27, 1972, he received a registered letter from the Mayor of the City of Fultondale revoking his license until such time as he conformed to the Zoning Ordinance.

Appellant sought to have the court declare that he was not required to conform to Article 4, Section 4, Part II, Sub-parts 4 and 20-f, but that Sub-parts 4 and 20-f were provisions dealing with the operation of different businesses and are mutually exclusive. Appellant further sought to have the court declare that he was not required to construct a building in which to conduct an auto repair shop pursuant to the provisions of Article 4, Section 4, Sub-part 4, and the wording of Article 4, Section 4, Part II, which stated that “ . A building or premises shall be used only for the following purposes . . . .”

On December 6, 1972, the court issued an interim decree providing that appellant’s license to operate an auto repair shop remain in force, thus making the attempted revocation null and void. The interim decree further adjudged that appellant could operate an auto repair shop “provided no vehicle was stored more than ninety (90) days unless in an enclosed building ...”

Appellant filed a motion for summary judgment and attached affidavits, and the City of Fultondale also filed a motion for summary judgment. A hearing was held on appellant’s motion for summary judgment, at the conclusion of which the court denied both motions and continued the cause for ninety days.

The City of Fultondale again moved for summary judgment on September 24, 1973, which motion was granted on February 20, 1974.

The question presented is whether the court’s finding that a fenced lot does not constitute an “auto repair shop” within the meaning of the zoning ordinance, was palpably wrong.

Wrecked and impounded cars, upon which occasional repairs were made, were regularly stored behind a locked gate on this otherwise unimproved lot.

As previously stated, appellant’s land is zoned as a “General Business District” under a statute which provides in pertinent part: “A building or premises shall be used only for the following purposes : . . . (4) Auto repair shops provided no vehicle is stored more than ninety (90) days unless in an enclosed building.” Appellant argues, in effect, that a building is required only if an automobile is stored more than ninety days. Although the sub-section quoted above is not a model of clarity, there cannot be any serious question but that the ordinary meaning of the words, “Auto repair shop,” contemplates a building. The legal definition of the word, “shop,” suggests that it is necessary to have a building: “A building in which goods and merchandise are sold at retail, or where mechanics work, and sometimes keep their products for sale.” (Emphasis ours). Black’s Law Dictionary, 1547 (Rev. 4th Ed. 1968). Unless there is a “shop” maintained, there is no auto repair shop within the conventional meaning of the words. Allstate Insurance Co. v. Lake Shore Mutual Insurance Co., 33 Ill.App.2d 172, 175, 178 N.E.2d 675, 677 (1961). The last part of sub-section 4 of the zoning ordinance merely sets out a condition which auto repair shops must meet in order to comply with the zoning ordinance.

Appellant would seize upon the word, “premises,” in the general heading, “building or premises,” to argue that no building is required. However, it is clear that since many of the enumerated provisions in the section refer to outside use restrictions such as signs, billboards and trailer displays, the words, “or premises,” are needed for inclusion of those uses in the regulatory scheme.

Clearly, the proper construction of the ordinance is to allow those who operate an auto repair shop and only those who operate an auto repair shop to permit vehicles to remain outside a building for up to ninety days. It is not to authorize auto storage unconnected with an auto repair shop for up to ninety days.

Appellant alleges that the trial court erred in taking judicial notice of the location of his property and in denying to him the right to cross-examine a competent witness regarding the said location of his property. If there was error, it was harmless error, since appellant had already alleged in Count 3 of his bill of complaint that his property was governed by Section 4 of the zoning ordinance.

There is some question as to whether a motion for summary judgment was the proper procedural vehicle for the trial judge to use in rendering his decree. However, this was not assigned as error and is therefore not before us.

This court has considered the other assignments of error which were argued and finds them to be without merit.

Affirmed.

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

       This case was originally assigned to a justice formerly on this court. It has been reassigned to the writer who has listened to the tape recordings of the oral argument.


author: FAULKNER, Justice.

text:
    James TAYLOR v. Michael B. OWEN.
    SC 952.
    Supreme Court of Alabama.
    Sept. 4, 1975.

      Cunningham, Bounds & Byrd, and James A. Yance, Mobile, for appellant.
    Hand, Arendall, Bedsole, Greaves & Johnston and Jerry A. McDowell, and Melvin W. Brunson, Guardian Ad Litem, Mobile, for appellee.
   FAULKNER, Justice.

James Taylor filed suit in Mobile County against Michael B. Owen for damages for personal injuries suffered as a pedestrian when struck by a truck driven by Owen. The jury returned a verdict for the defendant. Taylor’s motion for a new trial was denied.

The question for decision is whether or not the trial court judge correctly charged the jury on the doctrines of contributory negligence and subsequent negligence. We affirm.

Taylor contends that the oral charge by the court failed to define the law of subsequent negligence, as applied in Alabama. The portion of the judge’s oral charge to which he specifically objected reads as follows :

“Now, referring again to subsequent negligence, as this is called. A motorist must exercise due care to anticipate the presence of another on the highway or street, so as not to injure him; and he is negligent if he fails to discover a person whom he should have discovered in the exercise of due care. On approaching a pedestrian in the highway, or along the street or road in his path, he must exercise due care. That is, that degree of care which an ordinary, careful, and prudent person should have exercised in order to observe and see the persons who are about the highway and to avoid injuring them; and that same duty rests upon the pedestrian also in order to preserve his own safety.”

Taylor concedes that the judge gave several instructions, as requested, that properly stated the law of subsequent negligence. It is his position that, because of the difference between the initial oral charge given and the charges written by the parties and read to the jury by the judge, the jury was confused, to the prejudice of his case. The giving of proper charges cannot cure the giving of prejudicially erroneous ones, he asserts. He argues, furthermore, the court erred in giving Owen’s requested charge No. 4; he contends the charge led the jury to disregard the issue of Owen’s subsequent negligence. Charge No. 4 reads, as follows:

“The Court charges the jury that negligence on the part of the plaintiff in failing to exercise reasonable care for his own safety under the circumstances existing at the time and place of the accident, made the basis of this suit, if any, and if proximately contributing to the injuries and damages of which the plaintiff complains, would be a complete and absolute bar to the plaintiff’s right of recovery. If you are reasonably satisfied from the evidence in this case that the plaintiff himself was guilty of negligence in failing to exercise reasonable care for his own safety under the circumstances, then and there existing, and that this negligence, if any, proximately contributed to the injuries and damages of which he complains, then you cannot return a verdict in favor of the plaintiff and against the defendant.”

Owens argues that written charges given at the request of the parties became a part of the oral charge of the court, under Rule 51 ARCP. The minor discrepancies between the initial oral charge, and the written charges read to the jury are of no serious consequence, since the effect of the total oral charge was to apprise the jury correctly on the law of subsequent negligence.

Taylor is armed with a double-barreled argument: that prejudicially erroneous charges cannot be cured by giving other correct ones, and that the variance between the judge’s oral charge and the written charges subsequently read aloud confused the jury. It is our opinion that both barrels misfired.

Harris v. Schmaeling, 270 Ala. 547, 549, 120 So.2d 731, 732 (1960) contains the statement that, “It is, of course, axiomatic that the error in giving a prejudicially erroneous charge was not cured by the giving of other proper charges.” Taylor relies heavily on this statement. He argues that once a prejudicial error has been made in front of the jury, it cannot be cured. This is an accurate statement, but mere error that is not prejudicial error can always be corrected. All the instructions must be considered together. The part of the judge’s oral charge dealing with subsequent negligence was not prejudicial to the appellant’s case. Granted, it did not explain the law of subsequent negligence to the jury; it was nothing more than an instruction on the initial duties of a motorist approaching a pedestrian and the corresponding duties of the pedestrian to the motorist. Correct charges were given, however, on the law of subsequent negligence; this is admitted by the appellant, since they were given at his request.

Taylor finds fault with one of the written charges—Charge No. 4—which omitted reference to subsequent negligence. He relies on Kent v. Willingham, 276 Ala. 504, 164 So.2d 500 (1964) for the proposition that the giving of a charge omitting consideration of subsequent negligence automatically is reversible error. This is not what we said in the case. Reversible error was committed when the charges “centered the attention of the jury on plaintiff’s initial negligence, and, for practical purposes, led them to disregard the issue of defendant’s subsequent negligence.” (Emphasis added.) Here the attention of the jury was not centered on the initial negligence of the appellant. Rather, the series of written charges read to the jury, directed the attention of the jury to the issue of subsequent negligence. It did not, however, rivet the jury’s attention on the alleged initial negligence of Taylor.

Before the advent of the new Rules of Civil Procedure, a variance between the oral and written charges could be a fatal error. Taylor cites Tyler v. Drennen, 255 Ala. 377, 51 So.2d 516 (1951) and Montgomery City Lines, Inc. v. Scott, 248 Ala. 27, 26 So.2d 200 (1946) for this proposition. Rule 51, however, makes the entire matter, the judge’s oral charge and the written ones requested by the parties and given by the judge, the oral charge. Since the jury hears both, an appellate court must look to the total effect of the entire charge to see if there is reversible error. Alabama Power Co. v. Tatum, 293 Ala. 500, 306 So.2d 251 (1975); Wren v. Blackburn, 293 Ala. 393, 304 So.2d 187 (1974). We find no error.

Affirmed.

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


author: JONES, Justice.

text:
    GENERAL MUTUAL INSURANCE COMPANY, a corporation v. Eunice Marie GILMORE, as Executrix of the Estate of Benjamin Frank Gilmore, Deceased.
    SC 1086.
    Supreme Court of Alabama.
    Sept. 11, 1975.
    Rehearing Denied Oct. 2, 1975.
    Camp, Page, Williams & Spurrier, and Danny D. Henderson, Huntsville, for appellant.
    Martinson & Beason, Huntsville, for ap-pellee.
   JONES, Justice.

By this appeal the issue of “stacking” or “pyramiding” of coverage under the uninsured motorist provisions of an automobile liability insurance policy is again presented for this Court’s review.

We agree with the trial Court’s ruling granting the plaintiff’s motion for summary judgment which has the effect of allowing “stacking.” We therefore affirm.

The facts are not disputed. On December 10, 1970, Benjamin Frank Gilmore was killed in a collision with an uninsured motorist, Percy Lee Griffin. Eunice Marie Gilmore, as executrix of her deceased husband’s estate, filed a wrongful death action in the Madison County Circuit Court and obtained an unsatisfied judgment in the sum of $125,000 against Griffin. At the time of the collision, Gilmore, while employed by Leonard Askew, doing business as Askew Office Machine Company, was driving an automobile owned by Leonard Askew. In effect on the date of the accident was a General Liability/Automobile Policy issued by General Mutual Insurance Company to Leonard Askew, doing business as Askew Office Machine Company. The policy contained uninsured motorist protection and seven separate premiums had been paid on seven listed vehicles, including the one driven by Gilmore.

Because the uninsured motorist coverage specified limits of $10,000 per person per vehicle, the intestate’s personal representative sought to “stack” coverage for each of the other six vehicles and brought an action against General Mutual for $70,000. General Mutual responded, asserting that its liability was limited to $10,000 by virtue of the policy’s “Limits Of Liability” clause which is found under the uninsured motorist’s provision:

“The limit of liability stated in the schedule as applicable to ‘each person’ is the limit of the company’s liability for all damages because of bodily injury sustained by one person as the result of any one accident and, subject to the above provision respecting ‘each person’, the limit of liability stated in the schedule as applicable to ‘each accident’ is the total limit of the company’s liability for all damages because of bodily injury sustained by two or more persons as the result of any one accident.”

We have consistently held that “Other Insurance” and the “Limits Of Liability” clauses are ineffective to prevent “stacking,” being in derogation of the Alabama Uninsured Motorist statute, Tit. 36, § 74(62a), Code. In each of these cases (except in Cahoon where the “stacking” involved workmen’s compensation coverage), the plaintiff was the named insured or an insured by virtue of being the spouse or relative of the named insured living in the same household.

General Mutual does not contest these prior holdings, but rather it seeks to raise an issue of “first impression”: whether “stacking” is available to an injured plaintiff who is an insured by virtue of his occupancy of the vehicle involved in the accident. Contending that the “insured by virtue of occupancy” issue is before us, thereby limiting its liability to $10,000, General Mutual directs our attention to the following uninsured motorist provision of the policy:

“Persons Insured.
“Each of the following is an insured under this insurance to the extent set forth below:
(a) the named insured and any designated insured and, while residents of the same household, the spouse and relatives of either;
(b) any other person while occupying an insured highway vehicle

We have strained at the record in an effort to accommodate our review and holding to the issue sought to be raised. A look at the record, however, will disclose our dilemma. Other than the pleadings— the complaint and counter-motions for summary judgment — the only factual presentation is contained in a “Stipulation”, which provides in part:

“1. Before December 10, 1970, Defendant issued a policy of automobile insurance, being Policy No. CC-7601, whereby Defendant insured Leonard Askew, doing business as Askew Office Machine Company, as insured, and under which said contract of insurance the defendant agreed to pay any person insured under said contract or his legal representative all sums to which such insured or such representative shall be legally entitled to recover as damages from uninsured motorists because of bodily injuries or death sustained by such insured, in an automobile accident. A true and correct copy of said policy is marked for Identification as Exhibit ‘1’, and incorporated herein.
“2. The named insured under this policy of insurance was ‘Leonard Askew doing business as Askew Office Machine Company’. Benjamin Frank Gilmore was not a named insured under this policy of insurance. Benjamin Frank Gilmore, now deceased, was an insured within said contract of insurance in that he was an employee of Leonard Askew, doing business as Askew Office Machine Company, at his death.”

A six-page policy of insurance is attached as “Exhibit T To Stipulation”; and, while the stipulation states that it is “a true and correct copy”, it is obviously an incomplete contract of insurance. The first page of the policy — denominated “General Liability/Automobile Policy Declarations” — in addition to showing the named insured and the limits of liability for the coverage afforded, shows that “Comprehensive Automobile Liability Insurance”, “Comprehensive General Liability Insurance”, “Automobile Medical payments Insurance”, “Premises Medical Payments Insurance”, and “Protection Against Uninsured Motorist Insurance” appear on pp. “3b”, “3c”, “3d”, “3e”, and “3f” respectively. Only page “3f” — “Protection Against Uninsured Motorist Insurance” — is made a part of the Exhibit. The remaining four pages are composed of “Definitions”, “Supplementary Payments”, and “Conditions”. Conspicuously absent, inter alia, are the insuring clauses, as well as language indicating whether persons other than the named insured operating the insured vehicle with the owner’s (or named insured’s) permission are within the definition of “insured”. This latter deficiency, however, is supplied by the stipulation, “Gilmore . . . was an insured in that he was an employee of Leonard Askew.”

We hasten to observe at this point that there is little, if any, probability that this portion of the stipulation was the result of oversight or inadvertence. Automobile liability insurance policies issued in this state traditionally contain the standard omnibus clause which includes, within the definition of “insured”, persons driving the insured vehicle with the permission of the named insured. Thus, the stipulation merely accords credence to this standard language within the factual context of the case at bar.

At any rate, given the fact that Gilmore is an insured “in that he was an employee” of the, named insured, the validity vel non of General Mutual’s contention that the distinction between the various classes of omnibus insureds requires different results as to “stacking” is not before us. Judicial restraint requires that we await the appropriate case to address the issue whether “stacking” is permissible where the injured plaintiff is an insured by virtue of his occupancy of the insured vehicle.

In view of General Mutual’s implicit concession of lack of merit of this appeal absent the issue sought to be presented, we will not prolong our discussion by any in depth analysis of our “stacking” cases or their analogy to the instant case. Suffice it to say that the rationale of State Farm Automobile Insurance Co. v. Reaves, 292 Ala. 218, 292 So.2d 95 (1974), though itself not a “stacking” case, refused to recognize a distinction for purposes of scope of coverage between the named insured and those otherwise included within the statutory term “persons insured thereunder.”

Given the Reaves conclusion that the scope of coverage as to all classifications of insureds is identical and equal, the following language from Edge is controlling:

“[WJhere one policy covers two automobiles, for which two premiums are paid, an insured is not precluded from recovering the aggregate amount of coverage provided for the two vehicles so long as the total does not exceed the total of the judgment for the damages recovered.”

Professor Widiss, the acknowledged authority in this field, writing in 67 Nw. U.L.R. 497 (1967), observed that such restrictive clauses (Other Insurance and Limits of Liability clauses) are generally construed “to extend protection to persons that the purchaser would probably have acquired protection for if he were in a position to specify the individuals for whom he desired coverage. In other words, an insurance company will not be allowed to provide an insurance policy which denies protection to such persons unless it is clear that the purchaser understood he was acquiring such limited protection.”

Gilmore was an employee of the named insured and, as the regularly assigned driver of the business vehicle, was the individual most likely to be in an accident involving such insured vehicle. The policy issued to Leonard Askew, doing business as Askew Office Machine Company, was obviously intended to cover business operations which required the use of automobiles by employees, including Gilmore, in its day to day operation; and such employees thus assumed the position of third party beneficiaries to the insurance contract and were entitled to its full benefits. Harris v. Board of Water and Sewer Commissioners of the City of Mobile, 294 Ala. 606, 320 So.2d 624 (1975); Kingsberry Homes Corporation v. Ralston, 285 Ala. 600, 235 So.2d 371 (1970); Mutual Benefit Health & Accident Association of Omaha v. Bullard, 270 Ala. 558, 120 So.2d 714 (1960).

Affirmed.

HEFLIN, C. J., and MERRILL, MADDOX and SHORES, JJ., concur in the result.

      . Great Central Insurance Company v. Edge, 292 Ala. 613, 298 So.2d 607 (1974); Phoenix Insurance Company v. Stuart, 289 Ala. 657, 270 So.2d 792 (1972); Employers Liability Assurance Corp., Ltd. v. Jackson, 289 Ala. 673, 270 So.2d 806 (1972); State Farm Automobile Insurance Co. v. Cahoon, 287 Ala. 462, 252 So.2d 619 (1971); Hogan v. Allstate Insurance Co., 287 Ala. 696, 255 So.2d 35 (1971); Safeco Insurance Co. of America v. Jones, 286 Ala. 606, 243 So.2d 736 (1970); See also State Farm Automobile Insurance Co. v. Reaves, 292 Ala. 218, 292 So.2d 95 (1974).

      . For two eases, one on either side of this issue, see Blocker v. Aetna Casualty and Surety Company, 232 Pa.Super. 111, 332 A.2d 476 (1975) and Cunningham v. Insurance Company of North America, 213 Va. 72, 189 S.E.2d 832 (1972).

      . It is to be borne in mind that the term “insured”, as used in Reaves and Edge, refers to that classification of insureds contemplated by the statutory term “persons insured thereunder”, which is referable, in turn, to the general liability coverage. It is not a reference to an insured under subdivision (b) of the uninsured motorist provision’s definition of “Persons Insured”, i. e., “any other person while occupying an insured highway vehicle.”


author: SHORES, Justice.

text:
    ALABAMA FOOTBALL, INC., a corp. v. Ken M. STABLER.
    SC 1131.
    Supreme Court of Alabama.
    Sept. 25, 1975.

      S. P. Keith, Jr., Birmingham, for appellant.
    Beddow, Fullan & Vowell, and Frederick A. Erben, Birmingham, for appellee.
   SHORES, Justice.

Stabler filed a complaint on December 4, 1974, seeking a declaratory judgment and other relief, contending that the defendant had breached its contract with Stabler by failing to pay the balance due in 1974 under the contract between the parties; that the terms of the contract prohibited him from negotiating a contract with any other professional football club; and that irreparable damage would result to him if the contract was not held to be null and void.

After a hearing, the trial court entered its judgment on January 6, 1975, holding that the contract between Stabler and Alabama Football, Inc. had been breached by Alabama Football, Inc. and that Stabler was free from any obligation under any of the terms of the contract.

This appeal is from that judgment.

Stabler is a professional football player. In April, 1974, he signed an agreement with Alabama Football, Inc., which was effective immediately, and which in part provided that Alabama Football, Inc. would pay him $50,000 upon signing and an additional $50,000 in the year 1974. The agreement provided that Stabler would play football for Alabama Football, Inc. for seven years after the expiration of his existing contract with the Oakland Raiders for a total consideration of $875,000, $100,-000 of which was the bonus for signing and payable in 1974, $100,000 payable in 1975, and $135,000 per year thereafter through 1980.

The contract also prohibited Stabler from executing any other contract with any other football franchise or team in any football league.

The $50,000 was paid upon execution of the contract. The record indicates that at the time the contract was negotiated, some discussion was had regarding looking into the possibility of some deferred compensation plan, whereby Stabler might avoid taxes on monies due in 1974. It was subsequently determined that no effective means could be worked out to avoid taxes on the monies to be received in 1974. When this was discovered, Stabler asked for the balance due him. He received $10,000 of the balance on May 20. In June, he was told that there was no money available to pay the balance; but on June 28, an agreement was entered into which set up a schedule of payments for the $40,-000 remaining unpaid. $10,000 was paid under this arrangement, but the remaining payments were not made as they became due. $30,000 remained due at that time. On October 29, Alabama Football, Inc. delivered a note to Stabler for the $30,000 payable on November 29, 1974. When this note was not paid, Stabler filed this suit seeking cancellation of the contract, and also asked the court to issue a temporary restraining order prohibiting the use of his name by Alabama Football, Inc. This was granted and was finally made permanent.

Appellant argues, on appeal, that the trial court erred in refusing to dismiss the complaint on the ground that no jus-ticiable controversy existed between the parties. We disagree. Stabler contended that he was entitled to rescind the contract between him and Alabama Football, Inc. on the ground that it had breached the contract between them; that it prohibited him from negotiating with any other professional football team; that repeated demands had been made on Alabama Football, Inc. for the payment of the amounts promised him in 1974; that Alabama Football, Inc. had used the fact of Stabler’s signing with it to promote ticket sales and to recruit other professional football players ; and that it was having financial problems which prevented its ability to live up to the contract between them. At the time of the hearing, the team had no money on deposit in a bank; the chairman of the board of Alabama Football, Inc. testified that the team was unable to pay the $30,000 due Stabler at the time of the hearing; and it had been unable to pay either the September or October installments worked out by the June 28 agreement. The contention of Alabama Football, Inc. was that although it had not paid the $30,000 when due, it was trying to work out its financial problems, which the record indicates were formidable. Mr. Putnam, chairman of the board of Alabama Football, Inc., testified at the hearing in this cause that, at that time the team had indebtedness in excess of $1,600,000, and that it was overdrawn some $67,000 at the bank.

Under these circumstances, we cannot say that a justiciable controversy did not exist between the parties, which was subject to resolution by the trial court. Teal v. Mixon, 233 Ala. 23, 169 So. 477 (1936).

Appellant argues that Stabler was not entitled to a judgment rescinding the contract, because he made no offer to restore the money which had already been paid to him under the contract. While the general rule supports this argument, M. C. Dixon Lumber Co. v. Mathison, 289 Ala. 229, 266 So.2d 841 (1972), it is not absolute. Stabler argues, and the trial court was of the opinion that, under the facts of this case, Stabler was under no obligation to restore the money paid to him. We agree. Obviously, contracts involving professional athletes are somewhat unique. The evidence indicates that Alabama, Inc. benefited from the fact that Stabler had signed a contract to play football with it beginning in 1976. It exploited his notoriety as a successful quarterback with the Oakland Raiders to sell tickets to ball games played in 1974; he appeared at press conferences to publicize Alabama Football, Inc. and the World Football League. While it is true that the general rule is “ . . .a party may not disaffirm a voidable contract and at the same time enjoy the benefits received thereunder,” Betts v. Ward, 196 Ala. 248, 251, 72 So. 110, 112 (1916), such rule must be applied to comport with general equitable principles. Dermott Land & Lumber Co. v. Walter A. Zelnicker Supply Co., 271 F. 918 (8th Cir.1921).

The record is replete with indications that Alabama Football, Inc. was not able to fulfill its contract with Stabler. He was not paid the amount promised him in 1974, and the team was unable to pay him. Yet, under the contract, he was prohibited from negotiating a contract with any other team so long as he was under contract with Alabama Football, Inc. We agree with the trial court that the balancing of the equities would not require Stabler to return the money received during the year 1974, since there was evidence to support a conclusion that Alabama Football, Inc. had received benefits under the contract which Stabler was entitled to be paid for. We note also that the trial court, in holding the contract between the parties null and void, also cancelled the $30,000 note payable to Stabler, finding that balancing the equities between the parties could best be achieved in this manner.

It is next argued by appellant that notice of rescission is a condition to such action, and that it received no notice from Stabler of his intention to rescind. This court has held that “ . . . where there is a contract involving mutual continuing duties on the part of both parties, and one party has breached, but has not repudiated, the contract, it is the duty of the other before rescission to give notice and opportunity to live up to the contract . ” Nelson Realty Co. v. Darling Shop of Birmingham, Inc., 267 Ala. 301, 310, 101 So.2d 78, 85 (1957). The purpose of such notice is to give the breaching party a chance to perform. This does not mean, however, that such notice is always a prerequisite to rescission. The conduct of the parties themselves may vitiate the necessity of this requirement. See Fromm Sales Co. v. Troy Sunshade Co., 222 Md. 229, 159 A.2d 860 (1960). Indeed in the instant case, Stabler made repeated demands upon the appellant for the amount of the bonus due him. In fact, the appellant was given an opportunity to perform through the supplemental agreement and schedule of payments agreed upon on June 28, 1974. When it did not meet the payments agreed upon in that agreement, Stabler accepted a note due November 29, 1974. This note was not paid either. It is difficult to determine what more Stabler could have done to give appellant an opportunity 'to perform its part of the agreement. A formal notice of intention to rescind, under the facts of the instant case, .was hardly necessary to give appellant an opportunity to perform; and the trial court correctly held that Stabler was relieved of this requirement before he could maintain his suit.

It is next submitted by appellant that the breach in the instant case was not substantial and that a slight or casual breach will not justify rescission. Birmingham News Co. v. Fitzgerald, 222 Ala. 386, 133 So. 31 (1931). While this is a good statement of the general rule, the appellant overlooks a universal rule more applicable to the facts of this case. The evidence adduced below relating to the financial condition of appellant is uncontra-dicted. It overwhelmingly supports a conclusion that it was unable to perform the contract with Stabler. While it is true that financial inability to perform “ . whether due to poverty, [or] financial panic . . .”17 Am.Jur.2d, Contracts § 41S, does not excuse nonperformance of a contract, it is equally true that:

“The inability of a party to perform a contract after it is made is, as a rule, a ground for rescinding it. The fact that substantial performance by one party is impossible or that a party is unable to perform a material part of the contract is a ground for rescission. . . . ” 17 Am.Jur.2d, Contracts § 506.

Since there was substantial evidence from which the trial court could have concluded that appellant was unable to perform its contract with Stabler, we find no basis for reversal on this point.

It is finally argued that the trial court erred in allowing the deposition of Stabler into evidence. The basis of this contention is that Stabler’s deposition was taken within thirty days after service of the summons and complaint. ARCP 30 provides that a plaintiff must wait thirty days after service to take a deposition unless leave of court is obtained. This deposition was taken within thirty days and, although the appellant filed an objection to the taking of the deposition, there is nothing in the record to indicate that the court ruled on the objection. There is, therefore, nothing for this court to review under the assignment of error on this issue.

Finding no error to reverse, the decree appealed from is, therefore, affirmed.

Affirmed.

HEFLIN, C. J., and MERRILL, MADDOX and JONES, JJ., concur.