author: TORBERT, Chief Justice.

text:
    John W. ROBINSON, Jr. v. Sam HARRIS, Jr., Madison County, Alabama, et al.
    77-628.
    Supreme Court of Alabama.
    May 4, 1979.

      George L. Stevens, Jr. of Rutledge, Williams, Williams & Norton, Anniston, for appellant.

      Donald N. Spurrier of Williams, Spurrier & Rice, Huntsville, for appellee, Sam Harris, Jr.
    Julian D. Butler of Butler & Potter, Huntsville, for appellee, Madison County, Alabama..
   TORBERT, Chief Justice.

Appellee Sam Harris, Jr. entered into an oral contract with Rainbow Construction Company (Rainbow) whereby Rainbow was to lay drainage pipe from Harris’ field to a nearby culvert. Harris is a farmer in Madison County, Alabama.

As a result of drainage problems with one of his fields, Harris decided to correct the problem by installing drainage pipe across the field to Mt. Lebanon Road, which bounded his property, and then along the road some 650 to 700 feet to a culvert. The work was to be performed in accordance with specifications prepared by the Soil Conservation Service. According to the contract, Rainbow was to perform all the work which consisted of digging out a ditch along Mt. Lebanon 'Road, laying the pipe, and placing dirt which had been removed back into the ditch.

The work began on Saturday, March 6, 1976, and was completed the afternoon of the next day. During the course of the work, dirt from excavation was piled about two feet high along the edge of Mt. Lebanon Road for a distance of about a hundred feet. At the conclusion of each day’s work, Rainbow scraped the road with a metal blade to remove dirt on the road, and in addition, Harris and a Rainbow employee went over the area with square point shovels “scooping up anything they could get a hold of with a shovel.” Harris testified that only a film of dirt was left on the edge of the blacktop. Some of Harris’ employees were present during the work performed by Rainbow, but did not participate therein.

Rainbow posted a warning sign at the end of the second day’s work. The sign was repeatedly knocked down and Harris would pick it up every time he traveled past the area.

On March 12, 1976, five days after the completion of the work, appellant, John W. Robinson, Jr., was injured when the automobile he was driving left Mt. Lebanon Road at the area where the work was performed. The accident occurred at 10 PM while Robinson was going to visit his girl friend who lived in the vicinity of the Harris farm. It had been raining and was misting at the time of the accident.

Robinson ^brought suit against Harris, Rainbow, and Madison County for negligence in allowing dirt to remain on the road which became muddy and slick and caused his automobile to skid off the road. Madison County filed a general denial and raised the defenses of contributory negligence and sovereign immunity. Harris did not file an answer, but at the pretrial conference, an order was entered, providing in part that, “Defendant, Sam Harris, Jr., alleges the general denial and that the plaintiff was guilty of negligence which proximately contributed to his injuries, and further denies any duty to keep the highway in proper repair.” Service of process was not perfected as to Rainbow. The case proceeded to trial, and the jury returned a verdict in favor of defendants.

Robinson asserts three grounds for reversal. First, that the trial court erred in charging the jury so as to limit Harris’ liability to that under respondeat superior and to preclude recovery on the basis of Harris’ independent negligence. Next, that the trial court erred in allowing defense counsel to argue in closing that plaintiff failed to produce all of the witnesses that were available to him. And lastly, that the trial court improperly instructed the jury as to the effect of voluntary intoxication upon contributory negligence since Robinson’s intoxication was not brought into issue.

Relying on the following cases, among others, Prince v. Bryant, 274 Ala. 134, 145 So.2d 837 (1962); Lambert v. Birmingham Electric Co., 244 Ala. 333, 13 So.2d 579 (1943); Montgomery Light & Traction Co. v. Harris, 197 Ala. 358, 72 So. 619 (1916), Robinson contends that instructions which exclude or ignore issues, defenses, or theories of recovery encompassed by the pleadings and sustained by even a scintilla of evidence are improper and are cause for reversal. Robinson argues that the charge given to the jury limited recovery from Harris to a theory of respondeat superior; yet, under the pleadings and evidence, Harris could also be held liable for breach of an independent duty not to create a dangerous condition on Mt. Lebanon Road, for negligently contributing to the creation of a dangerous condition, or for negligently attempting to remedy a dangerous condition.

The trial court gave the following charge as to the liability of defendant Harris:

The Defendant, Sam Harris, Jr., has raised the defense that Rainbow Construction Company was an independent contractor. I will give you what the law says in regard to this for your consideration. The Plaintiff sues to recover damages from the Defendant, Sam Harris, Jr., for injuries or damages that he charges were proximately caused by Sam Harris, Jr., in allowing dirt to be left upon the road, Mt. Lebanon Road, at or near his property. The Defendant contends that the Plaintiff should not recover against him because the Defendant says Rainbow Construction Company was not his servant, agent or employee at the time and place complained of, but was an independent contractor. It, therefore, becomes your duty to determine from the evidence whether at the time the Plaintiff received the injuries complained of that Rainbow Construction Company was acting as a servant, agent or employee of the Defendant, Sam Harris, Jr., or whether Rainbow Construction Company was an independent contractor. The law says an independent contractor is one who has contracted to do or perform work for another and reserves the exclusive right of control over the means and agencies and all of the details by which the work is to be done. It is the reserve[d] right of control rather than the actual exercise of control that furnishes the test of whether one is an independent contractor. The law says an agent or servant or employee is one who by agreement with another, called the principal, acts for the principal and is subject to his control. So the burden is upon the Plaintiff to reasonably satisfy you by the evidence that Rainbow Construction Company was the servant or agent or employee of the Defendant, Sam Harris, Jr., and was acting within the line and scope of his agency employment at the time of the alleged wrong before the Plaintiff would be entitled to recover. If you are reasonably satisfied from the evidence that Rainbow Construction Company was an independent contractor in doing or performing the work on the job in question, the Defendant, Sam Harris, Jr., would not be liable to the Plaintiff. If you are reasonably satisfied from the evidence that Rainbow Construction Company was not an independent contractor in the doing or performing of the work in question, but that Rainbow Construction Company was an agent, servant or employee of the Defendant, Sam Harris, Jr., and was acting within the line and scope of his employment in the doing or performing of the work in question, the Defendant, Sam Harris, Jr., would be liable to the Plaintiff for any injuries or damages suffered by the Plaintiff as a proximate cause in the putting of the dirt on the road by Rainbow Construction Company.

After the jury had deliberated for some time, they returned with a question for the court. The trial court responded:

Ladies and Gentlemen, I have a question that you have sent to the Court to answer for you, and I will read it. “If we find Rainbow Construction to be an independent contractor does this absolve Mr. Harris of negligence? If the answer is no, please explain.” I am going to read back to you the charge that I gave you in regard to the law in respect to an independent contractor and the rule of liability as to an independent contractor. Through the total charge that I will give you I think will certainly answer your question. .

The trial court continued with a charge virtually identical to the charge set out above.

We conclude that the effect of the oral charge and the supplemental charge was to limit plaintiff’s recovery to a theory of re-spondeat superior. The confusion of the jury as to the potential bases of liability of Harris was manifested by their question to the trial court, “If we find Rainbow Construction to be an independent contractor does this absolve Mr. Harris of negligence? If the answer is no, please explain.” In response the trial court repeated his previous charge on this issue which included the following statement:

The Plaintiff sues to recover damages from the Defendant, Sam Harris, for injuries and damages that he charges were proximately caused by the putting of dirt on the road in question. The Defendant, Sam Harris, contends that the Plaintiff should not recover against him because Rainbow Construction Company was not his servant, agent or employee at the time and place complained of, but was an independent contractor. Therefore, it becomes your duty to determine from the evidence whether at the time the Plaintiff received the injury complained of Rainbow Construction Company was acting as an agent, servant or employee of the Defendant, Sam Harris, or whether Rainbow Construction Company was an independent contractor. .
. If you are reasonably satisfied from the evidence that Rainbow Construction was an independent contractor in the doing or performing of the work on the job in question, the Defendant, Sam Harris, would not be liable to the Plaintiff. If you are reasonably satisfied from the evidence that Rainbow Construction Company was not an independent contractor in the doing or performing of the work in question, but that Rainbow Construction Company was an agent, servant or employee of the Defendant, Sam Harris, and was acting within the line and scope of his employment in the doing or performing of the work in question, the Defendant, Sam Harris, would be liable to the Plaintiff for any injuries suffered by the Plaintiff as a proximate cause of the wrongdoing of Rainbow Construction Company.

Thus, the trial court did not instruct the jury as to any theory of recovery other than respondeat superior.

Although a landowner, in performing excavations upon his property, owes a duty not to obstruct a public road abutting his property so as to threaten the safety of travelers, see Lane v. Groetz, 108 N.H. 173, 230 A.2d 741 (1967), he is not responsible where, as here, he employs an independent contractor to perform the excavation and relegates all consideration of the manner in which the work is to be performed to the control and discretion of the contractor, see Drennen Co. v. Jordan, 181 Ala. 570, 61 So. 938 (1913). Therefore, there was no breach of an independent duty which Harris owed Robinson. However, there was evidence that Harris did voluntarily participate in removing soil from Mt. Lebanon Road and did re-position the warning sign on several occasions. Although he had no duty to do so, once Harris voluntarily undertook such measures, he assumed a duty to exercise reasonable care and is liable for negligence in connection therewith. Therefore, a jury issue was presented as to whether Harris negligently attempted to remove the soil and re-position the sign, and it was error for the trial court to restrict recovery to a theory of respondeat superior.

Harris contends that Robinson did not adequately preserve error in the instructions since he failed to object to the charge with the required degree of specificity and did not file explanatory charges. In response to the trial court’s charge, Robinson made the following objection:

Most of all though, and most strongly — and I do want to urge this ground on Your Honor. Your Honor charged that the burden is on the Plaintiff to prove Rainbow Construction Company was not an independent contractor. I do not think that under the facts of this case this was the burden of the Plaintiff, but that if the Defendant chose to raise it as a defense the burden of proving that Rainbow Construction Company was an independent contractor was on the Defense. The evidence in this case shows that Mr. Harris initiated and instigated this project, and they have brought forward here the contention that Rainbow Construction Company was an independent contractor, and I don’t think the burden is on the Plaintiff to disprove that particularly, in a situation wherein Mr. Harris argues that the agreement between him and Rainbow Construction Company was an oral contract, but going even further Your Honor then charged the jury that unless the Plaintiff proved to the reasonable satisfaction of the jury that Rainbow Construction Company was not an independent contractor that the Plaintiff would not be entitled to recover against Mr. Harris. Now, not only do I think that violates the rule I just set out, it also ignores all the evidence in the case about what Mr. Harris did with regard to this situation, after he himself testified that Rainbow Construction Company had left the job site and did not return. For example, Mr. Harris testified that he took steps to have the roadway cleaned up himself. Ip fact, he said he got out there with a shovel and started trying to clean up the roadway himself. He further testified that he kept the sign out there. He further testified that the sign kept getting knocked down and that he would put it back up. So there was negligence on the part of Mr. Harris which took place after Rainbow Construction Company had left the area and were gone. So to say that unless — to make the Plaintiff’s right to recover against Mr. Harris turn solely on proving to the reasonable satisfaction of the jury that Rainbow Construction Company was not an independent contractor is in my estimation very wrong and unfair to the Plaintiff, because we haven’t pinned our case at any point since the complaint was filed solely on what was done that day when Rainbow Construction Company was there. [Emphasis added.]

Before adoption of the ARCP, under prevailing Alabama practice, a trial judge could not be reversed for his failure to instruct the jury upon a contention (which some of the evidence might support) unless an explanatory charge remedying such omission was requested. Gilmore Industries, Inc. v. Ridge Instrument Co., 288 Ala. 127, 258 So.2d 55 (1972); Johnson v. Coker, 281 Ala. 14, 198 So.2d 299 (1967).

By its express terms, Rule 51 permits an objection to an “erroneous, misleading, incomplete, or otherwise improper oral charge.” (Emphasis supplied.) This effects a change in the former practice by permitting “broader grounds for objection to the oral charge” and “expands upon the Federal Rule,” in the words of the Committee Comments. Moreover, it is pointed out in the Comments that if “the court upon hearing an objection to the charge declines to supplement or modify its charge, the matter is preserved for appellate purposes.”

The rule itself states that no additional explanatory instructions are required “unless requested by the court.” Rule 51 ARCP.

Thus, as the objection here was sufficient to call the court’s attention to this omission to charge on plaintiff’s other theories for recovery, reversible error may be predicated thereon.

Robinson also asserts impropriety in Madison County’s closing argument. However, the record does not contain a transcript of the argument. Robinson made the following objection, “We object to that. The witnesses are equally available to all parties. That argument is improper.” However, the objection did not point out the specific language deemed objectionable, and therefore, there is nothing for this court to review. See Birmingham Southern R. R. v. McDonald, 339 So.2d 1004 (Ala. 1976); Flowers v. State, 269 Ala. 395, 113 So.2d 344 (1959).

Robinson additionally contends that the trial court erred in instructing the jury with regard to the duty of one voluntarily intoxicated as a part of its charge on contributory negligence. The trial court correctly charged the jury as to the law in this respect. Intoxication is relevant to the issue of negligence, see Kingry v. McCardle, 266 Ala. 533, 98 So.2d 44 (1957); therefore, the jury could properly consider evidence of alcoholic consumption in ultimately deciding the issue of contributory negligence. The charge, then, was properly given.

Since the trial court, in instructing the jury, improperly limited the theories under which plaintiff could recover from defendant Harris, the case must be reversed for a new trial to resolve the question of Harris’ liability. However, as to defendant Madison County, we find from the record that the trial court properly instructed the jury as to the liability of Madison County, and therefore, the verdict in favor of defendant Madison County must be upheld.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

All the Justices concur.


source: Caselaw Access Project

author: BEATTY, Justice.

license: Public Domain

text:
    PARKWAY PROPERTIES, INC., a corporation v. The CITY OF HUNTSVILLE, a Municipal Corporation. William B. BLANKENSHIP v. The CITY OF HUNTSVILLE, a Municipal Corporation.
    78-32, 78-33.
    Supreme Court of Alabama.
    May 4, 1979.
    Frank K. Noojin, of Watts, Salmon, Roberts, Manning & Noojin, Huntsville, for appellants, Parkway Properties, Inc. and for William B. Blankenship.
    E. Cutter Hughes, Jr., of Lanier, Shaver & Herring, Huntsville, for appellee, the City of Huntsville.
   BEATTY, Justice.

These appeals arise from suits on account for the collection of amounts owed to the City of Huntsville for utility services. We reverse and remand.

The City of Huntsville provided utility services to the Kings Inn Motor Hotel from December 6, 1973 until February 10, 1977. The account was entitled “Blankenship— Locklear, Limited, d/b/a The Kings Inn Motor Hotel.” No such partnership existed; the Kings Inn Motor Hotel was owned by Parkway Properties, Inc. (Parkway) whose principal shareholder until July of 1976 was D. E. Locklear. Thereafter, a former officer under Locklear, appellant William Blankenship, was the principal owner. No effort was made by any party to change the account name and the utility bills were paid when due except for the three months in question, December 1976, January and February 1977.

A trial resulted in a non-jury judgment against Blankenship and Parkway in the amount of $13,911.24. Both Blankenship and Parkway made a motion for a new trial which was denied; they appealed to this Court on the following issues:

1) Whether the City of Huntsville failed to prove damages, the amount of the account or the reasonableness of the charges;

2) Whether the judgments against the appellants were erroneous because there was insufficient evidence to sustain them, or because they were contrary to the great weight of evidence; and

3) Whether there were reversible errors in any of the trial court’s evidentiary rulings.

In regard to the first issue, a material element of the City of Huntsville’s cause of action was the amount of damages it was seeking to recover. In a suit on account, the burden is on the plaintiff to prove the balance due. Rice v. Schloss, 90 Ala. 416, 7 So. 802 (1890).

During the trial, the City of Huntsville introduced into evidence the business records of Huntsville Utilities. These records were admitted into ev.dence when introduced but the Court later reversed its ruling on the admissibility of the records and excluded them from evidence. Thus, the records were not in evidence and could not be considered by the trial judge in making his decision.

The only testimony given at trial relating to the balance due was by Bill Allen, the Supervisor of Customer Accounts for Huntsville Utilities. He stated that no payment had been received on the account in question for December 1976, January 1977, or February 1977. He also stated that no payment had been received for the charges of $3,256.00 which were incurred prior to the establishment of the account. Thus, the City of Huntsville failed to introduce any evidence as to the amount that was due for the three months in issue.

This failure to prove a material element of the City of Huntsville’s cause of action requires that this case be reversed and remanded.

Our disposition of this cause on the foregoing grounds pretermits our discussion of the other two grounds raised.

REVERSED AND REMANDED.

All the Justices concur.


author: MADDOX, Justice.

text:
    Edna Faye ENGLISH et al. v. Ora Mae MILLER.
    77-572.
    Supreme Court of Alabama.
    May 11, 1979.

      John A. Courtney, Mobile, for appellants.
    Everette A. Price, Jr., Brewton, for ap-pellee.
   MADDOX, Justice.

This is a dispute over the ownership of two savings accounts deposited in the Bank of Atmore.

Ora Mae Miller, plaintiff below, claimed that the money in the two accounts was given by her to her brother, Leroy English, “for investment purposes.” Edna Faye English, former wife of Leroy, in effect, claimed that the funds originally belonged to Leroy and that they were ordered to be turned over to her, her former husband, and two children born of their marriage, by the Circuit Court of Mobile County in their divorce action. The bank was made a party; it answered that it did not know who owned the funds.

The subject accounts were styled:

“110-1633-R. English or Ora Mae Miller as Trustee for A. G. English
110-1625-R. English or Ora Mae Miller as Trustee for F. D. English”

It is agreed that R. English is Leroy English and that A. G. English and F. D. English are the children of Leroy and Edna Faye English, who were divorced in March of 1977, in Mobile County.

The trial court entered a judgment for the plaintiff, finding that the funds in dispute were the property of Ora Mae Miller to the exclusion of all others.

We reverse. The potential interest of the children as beneficiaries of the trust established in their behalf makes them indispensable parties under Rule 19(a) ARCP, which provides:

“A person who is subject to jurisdiction of the court shall be joined as a party in the action if (1) in his absence complete relief cannot be accorded among those already parties . . . If he has not been so joined, the court shall order that he be made a party.”

The possibility that the children’s interest, if any, is adverse to the interest of those made parties, including their mother, Edna Faye English, necessitates the appointment of a guardian ad litem, as prescribed by Rule 17(c) ARCP:

“. The court shall appoint a guardian ad litem (1) for an infant defendant, or (2) for an incompetent person not otherwise represented in an action and may make any other orders it deems proper for the protection of the infant or incompetent person. .
Moreover, if a case occurs not provided for in these rules in which an infant is or should be made a party defendant, or if service attempted upon any infant is incomplete under these rules, the court may direct further process to bring him into court or appoint a guardian ad litem for him without service upon him or upon anyone for him.”

We do not hold that the English children do, in fact, have an interest in the subject accounts, only that any interest they might have could not be adjudicated without their presence and representation by guardian ad litem.

REVERSED AND REMANDED.

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


author: PER CURIAM. TORBERT, Chief Justice

text:
    Thomas S. SCHMIDT et al. v. LADNER CONSTRUCTION COMPANY, INC., and Carriage Hills Development Co., Inc.
    77-599.
    Supreme Court of Alabama.
    May 11, 1979.
    Robert H. Smith of Collins, Galloway & Smith, Mobile, for appellants.
    Robert L. Byrd, Jr. of Cunningham, Bounds, Byrd, Yance & Crowder, Mobile, for appellee, Ladner Const. Co., Inc.
    William M. Lyon, Jr. of McFadden, Riley & Parker, Mobile, for appellee, Carriage Hills Development Co., Inc.
   PER CURIAM.

This appeal is from an order of the circuit court granting Defendants’ motion for judgment on the pleadings. We reverse and remand.

Plaintiffs brought a class action suit seeking a declaratory judgment and an injunction to prevent the operative effect of an amendment of a restrictive covenant. The developer of a subdivision in Mobile County, Carriage Hills Development Company, recorded certain restrictive covenants on February 20, 1976, covering Unit Five in Carriage Hills subdivision, which provide in pertinent part:

“3. No dwelling shall be permitted on any lot except lots 1-16, 58 and 59 if the ground floor area of the main structure, exclusive of 1 story open porches, carports and garages, shall be less than 1600 square feet for a 1 story dwelling, nor less than 900 square feet for a dwelling of more than 1 story. For Lots 1-16, 58 and 59, the ground floor area of the main structure, exclusive of 1 story open porches, carports and garages, shall be not less than 1400 square feet for a 1 story dwelling, and 750 for more than one story.
“13. These covenants are to run with the land and shall be binding on all parties and all persons claiming under them for a period of 30 years from the date of the covenants, after which time said covenants shall be automatically extended for successive periods of 10 years unless an instrument, signed by a majority of the then owners of the lots, agreeing to change said covenants in whole or in part, has been recorded.
“14. Enforcement shall be by proceeding at law or in equity against any person or persons violating or attempting to violate any covenant, either to restrain violation or to recover damages.
“19. At any time, these covenants, restrictions and limitations may be changed or amended by a vote and agreement of the then owners of a majority of the lots in said subdivision, if Declarant consents and agrees to each such change or amendment in writing, such agreement and consent to be evidenced by a duly recorded instrument signed by a majority of such owners, and also by Declarant so long as it owns any of said lots, specifying each such change or amendment; or may be changed or amended by Declar-ant.”

Plaintiffs allege: 1) They purchased their residential lots subsequent to the recordation of these restrictive covenants and in reliance thereon; 2) on December 30, 1977, the Declarant amended paragraph 3 of the restrictive covenants by lowering the building footage requirements for lots 1-16, 58 and 59; and 3) after this amendment was recorded, Carriage Hills conveyed these lots to Ladner Construction Company.

Plaintiffs sought to enforce the restrictive covenants as originally recorded and to restrain Ladner Construction from building on these lots. The trial Court disagreed, granting Defendants’/Appellees’ motion for judgment on the pleadings and dismissing Plaintiffs’ complaint with prejudice. Plaintiffs contend (here, as below) that the last phrase (“ . .; or may be changed or amended by Declarant.”) of paragraph 19 is ambiguous and meaningless; and, therefore, it is null and void. Accordingly, Plaintiffs assert Carriage Hills was without legal authority to unilaterally amend paragraph 3 and lower the original footage limitations.

The dissent, finding no ambiguity, concludes that paragraph 19 “contemplates two methods of amending the covenants. One method is by amendments initiated by owners of a majority of lots in the subdivision, and the other is by the unilateral action of Carriage Hills.”

Respectfully, we believe this is an overly simplistic view. Our analysis of the entirety of the two documents convinces us that the questioned phrase “or may be changed or amended by Declarant” is far too equivocal and uncertain to permit its utilization to the detriment of the Plaintiffs.

Before we proceed with this analysis, however, we deem it appropriate to state briefly what is not presented or addressed on this appeal. The broader question of the legal right of a declarant to modify restrictive covenants running with the land, if such right is clearly preserved in the original document, is not the issue here presented. The Appellants in the instant appeal are not proceeding, in the case as presently postured, on any theory of misrepresentation or estoppel; nor are they claiming that the questioned phrase operates as an oxy-moronic (self-contradictory) elimination of the purported modification. Indeed, our preliminary research (prompted by an earlier misunderstanding of this self-contradictory contention) shows that this broader question is in a state of considerable confusion and far from settled where purchasers have acted in reliance upon the original restrictions. Nothing herein should be construed as an expression of an opinion upon any issue beyond the narrow question of ambiguity here presented.

We turn now to an analysis of the questioned phrase. The issue restated is: Do the words “or may be changed or amended by Declarant” preserve to the De-clarant the unilateral right to modify (lower) the building restrictions set forth in the original covenant? Appellants present a two-pronged ambiguity argument: First, the phrase is grammatically incomplete and deficient, having no subject and predicate; second, it is unclear what subject was intended by implication. We reject the former and accept the latter of these contentions.

We commend the Appellants for their scholarly dissertation on the necessity and propriety of grammatical style and structure in the drafting of legal documents. Surely, as they suggest, those who draft legal instruments should do so with the knowledge and skill of an artist, for indeed the use of the English language to express a common consent in writing, the breach of which is legally enforceable, is an art. But it is not an exact science, and the law will not void a written agreement merely on grounds of technical or grammatical deficiencies.

The test is a more practical one and is so well known as to require no citation of precedent: A written agreement is unambiguous and will be enforced (if otherwise enforceable) where the intent of the parties can be fairly and reasonably gleaned from the four corners of the document.

What, then, is the subject of the phrase, “or may be changed or amended by Declar-ant”? The dissent says it can only be “these covenants, restrictions and limitations.” We agree this is a possibility; but we think it is only one of at least two possible interpretations.

Our holding of ambiguity is dramatized, and perhaps best explained, by the Declar-ant’s own interpretation of this clause as expressed in the Preamble to the proposed amendment, which reads:

“WHEREAS, in said instrument establishing said restrictive covenants and as a part thereof, the undersigned as such De-clarant did reserve unto itself the right to change or amend said restrictive covenants so long as it continued to own any lots in said subdivision ; and
“WHEREAS, Declarant, which continues to own various lots in said subdivision, is now desirous of amending said restrictive covenants as hereinafter provided;” (Emphasis theirs.)

It is also interesting to note that Appel-lees, in their brief, fall into the same error:

“ . . . Rather, their position [Ladner and Carriage Hills] is that the language at issue is clear and unambiguous, evidencing a positive reservation of the right by Carriage Hills to change or amend the restrictions at any time during the pend-ency thereof as long as it owns any lot in the subdivision.” (Emphasis added.)

In point of fact, the questioned portion of paragraph 19 — “or may be changed or amended by Declarant” — does not condition Declarant’s right to change or amend upon its ownership of any lots. If these references in the preamble and Appellees’ brief were drawn from the wording in paragraph 19 “and also by Declarant so long as it owns any of said lots”, then the confusion is compounded. From any fair and comprehensive reading of the entire paragraph 19, it is clear that this latter phrase is tied to the signing of a “duly recorded instrument . by a majority of such owners, and also by Declarant.” Clearly, that phrase is not intended to unilaterally authorize De-clarant to amend the restrictions. Furthermore, when taken literally, this contention quoted from Appellees’ brief effectively acknowledges that the Declarant’s authority to unilaterally amend the restrictive terms of the original covenant does not find its source in the last phrase of paragraph 19.

We suggest this error is a natural one— grounded in the confusing language of the entire paragraph. Indeed, the only portion of paragraph 19 that is clear is the first full clause ending with the word “subdivision”. From this point forward, one is led to believe initially that Declarant must agree with a majority of lot owners to any change whether or not it owns any lots; then, when the recording condition is specified, the language contains the further condition that Declarant must be a lot owner. And, finally, Declarant’s unilateral right to change is totally unconditioned.

All of this leads us to believe it is reasonably probable that the phrase following the semicolon, though vague and incomplete in its detail, was intended to refer to Declar-ant’s right to further change or amend the majority’s proposed change or amendment, which is the subject of the entire paragraph. Moreover, such an interpretation is consistent with the lack of any devious purpose on the part of Declarant in the drafting and recording of the original restrictive covenants.

At any rate, the language of paragraph 19, when read together with the two documents as a whole, does not preserve to the Declarant, in clear unambiguous terms, a right to change or modify the restrictions contained in the original covenant.

It is axiomatic that an ambiguity in a restrictive covenant, as in contracts generally, is to be construed against the drafter. Vaughn v. Fuller, 278 Ala. 25, 175 So.2d 103 (1965). The judgment of dismissal is reversed, and this cause is remanded for final disposition consistent with this opinion.

REVERSED AND REMANDED.

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

SHORES, J., concurs in the result.

TORBERT, C. J., and MADDOX, EM-BRY and BEATTY, JJ., dissent.

TORBERT, Chief Justice

(dissenting):

I respectfully dissent.

Although paragraph 19 is inartfully drafted, it appears that it contemplates two methods of amending the covenants. One method is by amendments initiated by owners of a majority of lots in the subdivision, and the other is by the unilateral action of Carriage Hills. Accordingly, paragraph 19 is sufficiently clear to effectuate Carriage Hills’ reservation of the right to amend the restrictive covenants, and the subsequent amendment is effective as against other grantees in the same subdivision. This Court has recognized that restrictions on the use of land are not favored in the law, but, where restrictive covenants do exist and where they express the intent of the parties, they will be enforced. Laney v. Early, 292 Ala. 227, 292 So.2d 103 (1974). Furthermore, all provisions of a written instrument must, if possible, be given effect. See Ashley v. Cathcart, 159 Ala. 474, 49 So. 75 (1909).

A motion for judgment on the pleadings is proper where the pleadings are closed and the material facts are not in dispute. ARCP 12(c). The material facts, as reflected in the pleadings, are that Carriage Hills amended a restrictive covenant pursuant to its reserved power under paragraph 19. Because I am of the opinion that paragraph 19 is not ambiguous, I would hold the amendment is effective and the Rule 12(c) motion was properly granted.

MADDOX, EMBRY and BEATTY, JJ., concur.

      . The ground floor area for a one-story dwelling was reduced from 1400 to 1200 square feet.

      . Appellants use this argument merely to support their contention that the intended subject of the questioned phrase cannot be supplied by clear implication, as contended by Appellees, in view of earlier clear language to a contrary result.

      . See Callahan v. Weiland, 291 Ala. 183, 279 So.2d 451 (1973).

      . The modern art of “creative” writing, used almost universally in the world of printed advertising, makes broad use of the incomplete sentence technique. Witness the following example from the current issue of a popular magazine: “The diamond solitaire. A rare gift. A l'/8 karat diamond. Set simply and elegantly.” While this last phrase is an incomplete sentence, one is not left to speculate on what is “Set simply and elegantly.” The implied subject—diamond—is clear and unmistakable.

      .This is the proposed amendment to the original restrictive covenants.


text:
    Eloise WRAY and Charles Hatmaker v. Irby C. HARRIS.
    77-665.
    Supreme Court of Alabama.
    May 11, 1979.
    Jack Livingston, Scottsboro, for appellants.
    W. D. Scruggs, Jr., Fort Payne, for appel-lee.
   MADDOX, Justice.

This is the second appeal in this case. The Court’s original treatment is found in Wray v. Harris, Ala., 350 So.2d 409 (1977). Since the facts are sufficiently set out in that opinion, it is not necessary to review facts not pertinent to the issues now before us.

Eloise Wray and Charles Hatmaker filed suit in 1973 to enforce an agreement made with Irby Harris in which Harris agreed to build and lease a truck stop complex to them. A jury, answering a special interrogatory in the original action, found that the parties did, in fact, enter into a lease agreement. The agreement is as follows:

“This agreement is made and entered into on this, the 6th day of March, 1972, by and between Irby C. Harris (hereinafter referred to as Harris) and Charles Hatmaker and Eloise Wray (hereinafter referred to as Lessee).
“This agreement is made for and in consideration of the mutual promises hereinafter set out:
“1. That the Lessee has, on this day, paid to Harris the sum of $1,000, receipt of which is hereby acknowledged, and the Lessee does hereby promise to pay an additional sum of $9,000 by August 1, 1972; and the total of these two payments being $10,000 shall then be considered as a contract to construct a building. If construction is not begun by 8/1/72, $1,000 deposit will be refunded.
“2. Harris does hereby contract and agree to build a building approximately 40' x 84' plus 36' x 66' containing a filling station, restaurant, and ten motel units on certain property located on Highway No. 35 within the City limits of Fort Payne, Alabama and located generally to the West of Abbott’s Marina and Shell Station. Such construction shall be started no later than August 1,1972, and after the completion of the said building and improvements on said property, he will enter into a lease with the Lessee for a monthly land rental of $350 per month for a period of ten years. At the end of that time, the Lessee may exercise their option to purchase the said property and the improvements thereon at an amount of $65,000, payable in monthly installments for ten years.
“3. The Lessee further agrees to finance the construction cost above the said amount of $10,00 at the Fort Payne Bank to be repaid within ten years from the date of the loan, such funds to be paid to Harris as the contractor and builder of the buildings referred to above. Harris further agrees to make any mortgage, or to co-sign, or to act as guaranty for the loan to aid the Lessee in obtaining the construction cost of the building to be constructed on the said property.”

The trial court declined to order specific performance at that time and ordered a remittitur of the verdict to $25,000. Wray and Hatmaker appealed. This Court reversed and remanded to the trial court with directions to grant specific performance and “to protect the rights of all parties and do complete justice between them,” or, in other words, to adjust the equities.

On remand, the trial court held a hearing to determine the cost of constructing the truck stop and found the costs to be $227,-744.85, and ordered Wray and Hatmaker to pay this amount to Harris within 30 days as a prerequisite to his ordering specific performance. We reverse again.

Our review of the record convinces us that the trial court has failed to follow the mandate of this Court on the original appeal.

In essence, the trial court’s order requires appellants to pay full construction costs plus interest over a period of years when Harris, who was in default, was receiving substantial rental income on the investment. Therefore, the order, contrary to this Court’s directions, would allow Harris to profit by his own wrong. In short, the order would require Wray and Hatmaker to pay the entire costs of improvements on the land, improvements which Harris, during default, has rented to third parties.

After reviewing the record on original submission and the record on remand, we are convinced that the trial judge failed to do equity between the parties. Under the agreement, Harris was entitled to only $350 per month as rental. The record shows that Harris actually received much more in net rental than $350 per month after the date Wray and Hatmaker were entitled to possession.

Evidence was presented in the original trial that Harris received rental income from this property through January, 1975, in the sum of $89,389.00.

After remand, Wray and Hatmaker filed a request for the production of documents which would show the receipt of rents from the subject property from all tenants, including gasoline revenues, from the date of jury trial, that is, September 10, 1976, to the date of production. From the date of trial to May 2, 1978, Harris had additional receipts from the subject property in the sum of $118,787.90.

These two figures total $208,176.90, which has been received from the subject property by Harris. Even though these are gross rentals, the evidence of the net rentals received is more than sufficient to support the decree which this Court will make.

In other words, the record shows that Harris, during his default, received net rents in a sum greatly in excess of the $350 per month which the agreement entitled him to receive. Harris’ own accountant gave specific evidence on this issue.

We now discuss the question of the trial court’s assessment of damages on the issue of specific performance.

The trial court found:

“The Supreme Court has directed this court to enter an Order granting specific performance and to grant specific performance of the agreement entered into by the parties on March 6, 1972, the court found that it was necessary to ascertain the cost of construction of the truck stop and caused this matter to be set down for a hearing on the 24th day of May, 1978 to hear evidence concerning the cost of construction. The court heard the testimony ore tenus and from the evidence presented finds that the cost of construction was $227,744.85.
“The agreement entered into by the parties on the 6th day of March, 1972 provides that the lessee will finance the construction. The evidence reveals that the lessor, Harris, financed the construction. It appears that Harris spent $93,-375.00 in 1972 on construction and $68,-299.07 in 1973. Interest on the $93,375.00 at 6% for six (6) years is $33,615.00. Harris spent $68,299.07 in 1973 on construction and interest at 6% for five (5) years is $20,489.70. One other item of construction cost is an awning added in 1975 at the cost of $10,684.00 with interest for two (2) years at 6% ($1,282.08) amounts to $11,966.08. The court finds the amount of the construction cost to be $227,-744.85.”

A review of the record in conjunction with the lease agreement clearly shows an understanding by the parties that construction costs would be $90,000; however, on remand, Harris’ certified public accountant testified that $93,375 was expended by Harris on construction in 1972. When asked if his records showed expenditures for construction after 1972, Harris’ CPA noted only an additional expense of $10,684 for an awning in 1975. Therefore, there is evidence that Harris spent $3,375 more on construction than originally contemplated. The trial court’s finding that Harris actually spent $93,375 in 1972, is affirmed.

Harris testified and identified numerous checks which are exhibits to the testimony. These checks represent expenditures on behalf of Harris in the construction of the building as well as operations, such as utility bills. They also include the monthly installment to the Fort Payne Bank of $928.88 on the $80,000 loan to the Fort Payne Bank.

These expenses included by the trial court in finding total construction costs of $227,-744.85 clearly were not attributable to construction costs. We conclude that the evidence will sufficiently support only a finding that the cost of constructing the truck stop complex was $93,375.

Wray and Hatmaker contend that Harris, having been in default after 1973, is not entitled to reimbursement for improvements placed upon the subject land since that time. The trial court charged Wray and Hatmaker with the costs of constructing an awning added in 1975, at a cost of $10,684, plus 6% interest for two years. In Coon v. Henderson, 242 Ala. 144, 5 So.2d 397 (1941), this Court stated:

“. . . A mortgagee in possession before foreclosure is responsible on redemption for rents collected, or for rental value if he used the property. From that amount he may deduct repairs and taxes, but not improvements. jfc sfc $ sf: j)c $
“The same principle applies to a conditional vendor in possession in the absence of a different contract. . . . ” (Emphasis added.)

It is the general rule that “provision should not be made for improvements voluntarily made by the vendor without notice to, or request from the purchaser . . .” 81A, C.J.S. Specific Performance § 209b.

Harris argues that the awning included in the court’s decree was “essential to, material to, and in direct compliance with the contract entered into between the parties.

A review of the written contract indicates that the awning was not constructed in “direct compliance” therewith. At best, the awning is incidental to the operation of the truck stop. The fact that it was erected two years after the improvements contracted for were completed indicates that the decision to construct the awning was solely Harris’. At that time he was in default, and there is no evidence that Wray or Hat-maker was ever consulted.

Wray and Hatmaker paid Harris $10,000 in earnest money as agreed in the 1972 contract. This money remained in the possession of Harris to be credited against construction costs. A sum of $80,000 was borrowed from the Fort Payne Bank. Harris paid installments on this loan which, under the terms of the contract, Wray and Hat-maker should have been paying. Payments made by Harris, however, are more than offset by income received while he was in default of his agreement with Wray and Hatmaker, and it is undisputed that the loan was for ten years and that the building was being depreciated by Harris on a 20-year straight-line method.

Based on the foregoing, we are convinced that the decree of the trial court is clearly and palpably wrong and inequitable and is due to be reversed, in part. The trial court attempts to make a new contract for the parties, not enforce the one this Court ordered enforced. It is obvious that the trial court’s finding that the amount of construction costs was $227,744.85 is erroneous. The trial judge included in this sum money borrowed and already included in the original construction costs, and also included other items of maintenance, and directed payment of the entire amount, with interest, in thirty days. This the court should not have done.

Harris is entitled to remove from the premises items of personal property which are not attached to the real estate. In the event Wray and Hatmaker decide to exercise their option to purchase, the terms of the agreement control, and not the court order, which attempts to make a new agreement for the parties.

In remanding this case, we direct that Wray and Hatmaker are to be placed into possession of the truck stop complex within twenty-eight days after the mandate of this Court is issued. Wray and Hatmaker are to assume payment of the construction loan at the Fort Payne Bank from the date they are placed in possession, as provided in the contract, and pay Harris $350 per month for the time remaining in their ten-year agreement. Wray and Hatmaker must also pay Harris the difference between the contemplated cost of $90,000 and the actual cost of $93,375, or $3,375.

AFFIRMED, IN PART; REVERSED, IN PART; AND REMANDED WITH DIRECTIONS.

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


author: BLOODWORTH, Justice.

text:
    Dora Larkin COLEMAN and James Larkin v. Frank SPARKMAN et al. James LARKIN and Dora Larkin Coleman v. Frank SPARKMAN et al.
    77-689, 77-690.
    Supreme Court of Alabama.
    May 11, 1979.

      Albert D. Lipscomb, of Lipscomb & Lipscomb, Bessemer, Ira D. Pruitt of Pruitt & Pruitt, Livingston, for appellants.
    William C. Brewer, III and Marcus E. McConnell, Jr., Livingston, for appellees, Tri-County Land Co.
    Robert P. Upchurch of Upchurch & Up-church, Livingston, for appellees John Lar-kin Hardrick and Lenard H. Harrison and Evelyn G. Harrison.
   BLOODWORTH, Justice.

These consolidated appeals are from judgments in actions seeking a sale for division of two tracts of land. In order to determine the ownership of the land, the trial court had to ascertain the true family relationship of the parties. Appellants appeal from judgments holding that they are not the natural descendants of Sumter Lar-kin, deceased, and that they have no title to the lands in question.

Title to one of the tracts was in Sumter Larkin, and title to the other tract was in Sumter Larkin and Mose Larkin, as tenants in common. The appellees, who prevailed at trial, claim title through Mose Larkin and through Ann Larkin Woodard, the daughter of Sumter Larkin and Jane Carpenter Larkin, born after their marriage. The appellants claim title through Alice McAlpine (also referred to as Alice Larkin), the daughter of Jane and alleged daughter of Sumter. Alice was born before Sumter and Jane were married, and the dispute at trial concerned whether Alice was the natural child of Sumter and whether he legitimated her after his marriage to her mother, Jane.

The trial court found, after a hearing ore tenus, that there was no credible evidence (1) that Alice was biologically related to Sumter Larkin, (2) that Alice was legitimated “by being acknowledged by Sumter Lar-kin” as his daughter, or (3) that Alice was held out to the community by Sumter as his daughter. We affirm.

Appellants contend that the trial judge erred by using the wrong test to determine legitimation. Their argument is that the trial judge’s use of the word “acknowledged” demonstrates that he did not use the correct test, which is whether Sumter Larkin “recognized” Alice as his daughter.

The rule governing this situation is found in Code 1975, § 26-11-1:

“The marriage of the mother and reputed father of a bastard child renders it legitimate if the child is recognized by the father as his child.”

Recognition is essential and must be unambiguous and clear in its character. Howard v. Pike, 290 Ala. 213, 275 So.2d 645 (1973); Martin v. Martin, 233 Ala. 310, 171 So. 734 (1937). Recognition is shown by the manner of treatment, how the child is regarded and held in thought, and does not depend upon a showing of actual parentage. Moore v. Terry, 220 Ala. 47, 124 So. 80 (1929). Moreover, publication of the parentage of the child before the marriage is unnecessary. McBride v. Sullivan, 155 Ala. 166, 45 So. 902 (1908).

The trial court, having heard the evidence ore tenus, found that Alice was not the natural daughter of Sumter Larkin, i. e., was not “biologically related” to him. This finding is supported by credible evidence and will not be disturbed. The trial court also found that Alice had not been “legitimated” by being “acknowledged” by Sumter. We do not think the word “acknowledged” indicates that the trial court used an improper standard, and we have found one opinion using the word “acknowledged” when discussing legitimation. See Hunter v. Whitworth, 9 Ala. 965 (1846).

“Recognized” is not a thauma-turgic word to be recited every time legitimation is at issue. The essence of recognition is the treatment of the child as one’s own, including an acknowledgment of parenthood, which we deem to mean acquiescence in the relationship of parent and child.

There is sufficient evidence to support the trial court’s finding that there was no legitimation. We conclude that it makes no difference that the court used the word “acknowledged” in its final judgment, rather than the word “recognized.”

Appellants raise two other issues. First, they contend that the trial court erred in allowing the appellees to use, for impeachment, a writing by appellant Coleman, one of Alice’s children, because this writing had not been produced in response to a request for production ,of documents under Rule 34, ARCP. The appellants’ request covered the following:

“Such documents shall include deeds, drawings, mortgages, photographs, affidavits and writings of every nature, kind and description, which he has and on which he rests his claim to the title of the land described in the Complaint filed in this cause.”

The writing in question is a letter written by appellant Coleman in which she claims to be the daughter of Sumter Larkin. It was used on cross-examination to impeach her testimony that her father was Tom McAl-pine.

It does not appear that the letter falls within the category of documents requested. The letter could not reasonably be interpreted as a document upon which the appellees rested their claim to title. It may have increased the probability of appellees’ success by weakening Mrs. Coleman’s testimony, but this circumstance does not transform the letter into a document upon which the appellees relied to establish their claim.

Second, the appellants assert error in the trial court’s admission of statements from a deposition by the appellees’ witness Hicks after she had been impeached with statements from the same deposition. They argue that the impeaching statements taken from the deposition are unambiguous and need no clarification by introduction of other portions of the deposition.

Rule 32(a)(4), ARCP, states as follows:

“If only part of a deposition is offered in evidence by a party, an adverse party may require him to introduce all of it which ought in fairness be considered with the part introduced, and any party may introduce any other parts.”

The trial judge, in overruling the appellants’ objection, stated that he would consider the additional portions of the deposition for clarification only, and not as substantive proof. The admission of the statements under these circumstances was not an abuse of the trial court’s discretion under Rule 32(a)(4) and, moreover, we do not think the appellants were harmed thereby. See C. Gamble, McElroy’s Alabama Evidence § 159.01, at 337.

We do not address the appellants’ final contention that Code 1975 § 43-3-7, is unconstitutional because it restricts inheritance by an illegitimate child to inheritance from his or her mother, in violation of equal protection. In light of the trial court’s finding that Alice was not the natural child of Sumter Larkin, not “biologically related” to him, the appellants have no standing to raise this issue.

The judgments in favor of the appellees are hereby affirmed.

AFFIRMED.

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

      . This issue is present in Everage v. Gibson, 77-656, pending before this Court.


author: FAULKNER, Justice.

text:
    Frances CHAPMAN v. ALLSTATE INSURANCE COMPANY.
    78-28.
    Supreme Court of Alabama.
    May 11, 1979.

      Richard Chesnut, of Watson, Moore & Chesnut, Huntsville, for appellant.
    Donald N. Spurrier, of Williams, Spurrier & Rice, Huntsville, for appellee.
   FAULKNER, Justice.

Chapman brought suit against Allstate for fraud and fraudulent misrepresentations. A jury returned a verdict in favor of Allstate and Chapman appeals. We affirm.

Chapman, a resident of Tennessee, was injured at a horse show in Montgomery in March, 1976, when she was kicked in the knee by a horse which Allstate’s insured, Eugene Hill, was unsaddling. Several days after the accident Hill told Chapman that he had a homeowner’s policy with Allstate, that he would report the accident to his insurer, and that if he did not have coverage, he would be responsible for Chapman’s Montgomery hospital bill. In May Chapman was contacted by Allstate and told that they would pay a maximum of $500 on her medical bills. Chapman made no other inquiries at that time. Shortly after she submitted her medical bills to Allstate, Chapman received payment of $500.

In the fall of 1976 Chapman again saw Hill and informed him that her medical expenses had exceeded his insurance coverage and had not therefore been paid by Allstate. Hill replied that he had $25,000 worth of liability insurance and would check to see why her expenses had not been paid in full. Upon inquiry to Allstate Hill was advised that the company had paid the limit of coverage under the medical payments provision of Hill’s policy and that Chapman’s only recourse was to file suit. Hill then conveyed this information to Chapman, who replied that she had contacted a Tennessee attorney about taking legal action.

In November, 1976, Chapman had further surgery on her knee and again forwarded her medical bills to Allstate with a letter which read:

[Dated November 22, 1976]
“Mr. Gene Hill, who has this policy, informed me that this policy would pay each time I was in the hospital if I had not been released by my Doctor.
“As you can see, I have been under a Doctor’s care continuously since 3-21-76, this being when the accident occurred.
“If this is not true, then maybe you should inform Mr. Hill that his policy is not what he thinks it is.
“Please let me know your results.”

Allstate responded as follows:

[Dated December 8, 1976]
“Enclosed are the medical bills sent to us. We have already paid the limit of our insured’s policy on medical payments.
“Therefore, no further payment can be made.”

These letters were the basis of Chapman’s claim for fraud or fraudulent misrepresentation. Chapman’s letter to Allstate was not admitted at trial on the grounds that it was self-serving and contained hearsay as to Allstate.

Subsequent to this correspondence, in May, 1977, Chapman contacted an Alabama attorney about filing suit. Of course, by this time the statute of limitations had run on any negligence claim against Hill. Suit was actually filed against Hill and Allstate on May 2, 1978, alleging negligence against Hill and fraud and fraudulent misrepresentations against Allstate. The defendants denied the allegations and as affirmative defenses asserted the statute of limitations, assumption of risk, contributory negligence, and lack of legal detriment. Shortly before trial Chapman dismissed her claim against Hill and the ease proceeded to trial against Allstate alone. The jury returned a verdict in favor of Allstate.

As grounds for reversal Chapman alleges two errors in the trial proceedings: (1) the refusal to admit her letter to Allstate of November 22, 1976, and (2) a failure to charge the jury on certain aspects of fraud. In both instances there is serious question of whether or not anything has been preserved for our review, since the proffered letter was apparently withdrawn by Chapman’s counsel and no objection was made to the relevant portions of the charge. Nevertheless, we do not decide this question as we conclude that the best approach to this case is through an application of Rule 45 ARAP, which states:

“No judgment may be reversed or set aside, nor new trial granted in any civil or criminal case on the ground of misdirection of the jury, the giving or refusal of special charges or the improper admission or rejection of evidence, nor for error as to any matter of pleading or procedure, unless in the opinion of the court to which the appeal is taken or application is made, after an examination of the entire cause, it should appear that the error complained of has probably injuriously affected substantial rights of the parties.”

In finding that the error, if any, has not injuriously affected Chapman’s substantial rights we note that Allstate had no duty to disclose the limits of Hill’s policy to Chapman or to explain to her the workings of liability coverage as opposed to the medical payments provision even upon her inquiry of November 22. Chapman and Allstate were adversaries, unlike the plaintiff and insurance company in State Farm Mutual Automobile Insurance Co. v. Ling, 348 So.2d 472 (Ala.1977), where State Farm insured Ling as well as the company which caused his injuries, thus creating a confidential relationship which was breached when the insurer misled Ling about the prerequisites to recovery against its other insured. In fact, if Chapman had asked Allstate point blank the amount of coverage under Hill’s policy that information could have properly been refused. Rule 26(b)(2), ARCP. Allstate’s letter fully informed Chapman as to why no further payments could be made, (i. e., the limit had been paid under the medical payments provision) and did not mislead or conceal any information which an adversary could be expected to reveal to his opponent. Additionally, Chapman had already been told by Hill that her only recourse was to file suit, a course of action which, for reasons unknown to us, Chapman did not pursue with the diligence demanded of litigants. Thus it is clear that, even if the letter had been admitted and the jury charged in the manner now requested by Chapman, she could not have recovered against Allstate for fraud or fraudulent misrepresentations since Allstate’s reply to Chapman’s letter was a proper and adequate response to that letter. Consequently, the alleged error did not injuriously affect Chapman and a reversal would be inappropriate.

AFFIRMED.

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


author: PER CURIAM. MADDOX, Justice

text:
    Clyde WHITE, in his capacity as an official and employee of the State of Alabama Highway Department, et al. v. Harold F. THOMAS, et al.
    78-50.
    Supreme Court of Alabama.
    May 11, 1979.
    Thomas Coleman, Sp. Asst. Atty. Gen., Birmingham, for appellant.
    Bibb Allen, John H. Lavette, Birmingham, for Harold F. Thomas, Janet Ann Thomas and John H. Lavette, appellees.
   PER CURIAM.

This case arises out of condemnation proceedings, but involves the correctness of the trial court’s dismissal of a declaratory judgment action.

In 1977, the state offered the landowners $142,417, a sum arrived at by a land appraiser retained by it. A second state appraiser had valued the property at only $43,308. It is this low appraisal that generated this controversy.

The State Highway Department, by letter, notified the landowners that if the sum of $142,417 was not satisfactory, the state would have to acquire the land through condemnation. The state did commence condemnation proceedings in the Probate Court of Jefferson County; the landowners were awarded $200,500. The state appealed the award to the circuit court, and again offered $142,417 to the landowners.

When the case came on for trial, landowners’ attorney informed the state’s attorney, by letter, that he had learned that the state intended “to put on evidence in this trial below that amount you believe to be just compensation and which you have stated is due as just compensation to the property owners, to wit: one-hundred forty-two thousand, four hundred seventeen dollars ($142,417.00).” The letter further stated, in part:

“ . . . This expression and action on your part is recognized as and can only be interpreted for what it is — a threat that unless the property owners accept the one-hundred forty-two thousand, four-hundred seventeen dollars ($142,417.00) as payment for their property and forego their right to trial by jury and the opportunity to assert what they truly believe, that the State officials and their representatives will go to trial at a much lesser figure and put on evidence at a much lesser figure than one-hundred forty-two thousand, four-hundred seventeen dollars ($142,417.00) and attempt with all the force of the Government to obtain the property for a sum of money that they know and believe to be less than just compensation. This type of action is in violation of the State and Federal Constitutional guarantees of just compensation and Due Process of Law which the officials and representatives are Constitutionally bound to accord these citizen property owners. Such action on the part of these officials and representatives is wrong, improper, unfair, and unconstitutional and known to be so by the parties involved.
“This is to put all parties involved and responsible for this deplorable conduct and action on notice that such threat and indeed the carrying out of such a threat will be a wrong perpetrated against these property owners for which a cause of action will lie and for which suit will be brought against all responsible parties should these officials and/or their representatives persist in these threats and in carrying out these threats. Damages claimed will be of both a compensatory and a punitive nature for all wrongful acts in connection with this.”

In effect, the state officials were advised that if they persisted in this “coercion” a civil rights suit under Title 42, § 1983, United States Code, would be filed against them for fraudulently attempting to deprive the landowners of their constitutional right to adequate compensation.

The trial judge continued the condemnation proceedings at that time. Subsequently, all state and federal highway officials were notified by letter by the landowners’ attorney that they would subject themselves to suit if they persisted in putting into evidence the lower appraisal. The state and federal highway officials then filed this declaratory judgment action against the landowners and their attorney. The trial judge aptly stated the issue:

“In this action, plaintiffs now seek an order or decree from this Court declaring that they have the right to offer evidence through a qualified witness or witnesses that the sum of $144,350.00 or a lesser sum, is the fair market value of the land sought to be condemned from the defendant landowners and, that plaintiffs would not thereby offend or violate the civil rights, constitutional rights or other rights of the defendant landowners, or their attorney, defendant John Lavette, or be liable to them for compensatory, punitive or other damages.”

In other words, the question in this declaratory judgment action is whether the plaintiff could obtain a present determination of a prospective ruling on evidence to be later introduced. The trial court concluded that it lacked jurisdiction to entertain the complaint and granted the landowner’s motion to dismiss.

The proper test of the sufficiency of a complaint in a declaratory judgment proceeding is whether there is a bona fide justiciable controversy which should or ought to be settled. Trabits v. First National Bank of Mobile, 295 Ala. 85, 323 So.2d 353 (1975). As this Court stated in Metzger Bros. v. Royal Indemnity Co., 274 Ala. 643, 151 So.2d 244 (1963):

“The test of sufficiency of a complaint in a declaratory judgment proceeding is not whether the complaint shows that the complainant will succeed in getting a declaration of rights in accordance with his theory and contention but whether he is entitled to a declaration of rights at all, and if the complaint states the existence of a bona fide justiciable controversy which should be settled, a cause of action for declaratory judgment is stated and the demurrer should be overruled. Orkin Exterminating Co. of North Ala. v. Krawcheck, 271 Ala. 305, 123 So.2d 149, and cases therein cited; see 7A Ala.Dig;., Declaratory Judgment, <&wkey;313.”

But a declaratory judgment proceeding will not lie for an anticipated controversy. Callen v. Callen, 257 Ala. 226, 229, 58 So.2d 462, 465 (1952) disposed of that question when it held that:

“It is not sufficient that the parties anticipate that [such] justiciable controversy may arise.”

To the same effect is Talton v. Dickinson, 261 Ala. 11, 14, 72 So.2d 723, 726 (1954):

“The proceeding is not available to adjudicate anticipatory rights and it is not sufficient that the parties anticipate that a justiciable controversy may arise. [Citing Callen, supra]

The prospective opportunity to present evidence of a certain nature falls within that prohibition. Accordingly, it was not a proper subject for declaratory relief and the trial court’s dismissal of the complaint was correct. Therefore the judgment must be, and is, affirmed.

AFFIRMED.

TORBERT, C. J., and BLOODWORTH, JONES, ALMON, SHORES, EMBRY and BEATTY, JJ., concur.

MADDOX and FAULKNER, JJ., dissent.

MADDOX, Justice

(dissenting).

If the written threat of a Civil Rights law suit, bottomed as the suit must be on the acts of public officials, is just an “anticipated controversy,” the designation used by the majority, I would hate to see a real controversy. Callen v. Callen, cited by the majority, supports my view that there was an actual controversy present in this case. In Callen, the court opined:

“The only controversy which the petition shows has so far arisen in respect to the meaning of the decree heretofore rendered and the agreement adopted by the decree, is whether or not the proposed orthodontic treatments constitute an unforeseen need or emergency as contemplated by it. We are, as did the trial court, responding to that question and, therefore, there is no occasion for a further declaratory judgment. In respect to other situations which may arise, the Declaratory Judgments Act is not now available.” (Emphasis added.)

It is readily apparent that in Callen, the Court declared the rights of the parties relative to the “only controversy” presented (whether proposed orthodontic treatments constituted an unforeseen need). The Court did say that as to “other situations which may arise, the Declaratory Judgment Act is not now available.” (Emphasis added.) The Court did not say that it would not declare the rights of the parties under the divorce agreement, if there was an actual dispute. In fact, I infer from the Callen opinion that the Court stated that should a dispute come up in the future, declaratory relief would then be appropriate. In this case, there is a present dispute over whether the State can introduce the low appraisal. The landowners have threatened to sue the State officials if they introduce the low appraisal. The State says that it is entitled to introduce the evidence and intends to do so. That constitutes a present controversy, in my opinion.

Furthermore, controversies regarding the legality of the acts of public officials, or public agencies, challenged by parties whose interests are adversely affected, is one of the favored fields for declaratory judgment. Morgan v. Board of School Com’rs of Mobile County, 248 Ala. 22, 26 So.2d 108 (1946).

I am of the opinion that the plaintiffs were entitled to get a declaration of rights. The plaintiffs may not get a favorable declaration of rights, but I think they were entitled to one, favorable or not.

FAULKNER, J., concurs.


text:
    Cecil W. POSEY v. Sam MYERS, Jr.
    78-96.
    Supreme Court of Alabama.
    May 11, 1979.
    Huey D. Mclnish, of Lee & Mclnish, Do-than, for appellant.
    Herman W. Cobb, of Buntin & Cobb, Dothan, for appellee.
   BLOODWORTH, Justice.

This is an appeal by defendant Posey from the overruling of his motion for new trial in a suit brought by plaintiff Myers seeking repayment from Posey of a purported loan. We reverse and remand.

The plaintiff Myers alleged that he loaned the defendant Posey $19,000 to help Posey start a finance business. Myers testified that he had not been repaid.

Posey contended that the $19,000 was a business investment, part of a $50,000 investment to be made by Myers in exchange for a share of the profits. He stated that Myers never paid the balance of the $50,000 and that the $19,000 advanced had been placed in the finance business and loaned out to customers. Myers testified he never received any profits.

The jury returned a verdict for plaintiff Myers in the amount of $14,000. Defendant Posey filed a motion for new trial on the ground that the verdict was not supported by the evidence. Following denial of this motion, Posey appealed.

Where there is no evidence to support a jury verdict, the trial court should grant a motion for new trial on that ground. Hubbard Bros. Construction Co. v. C. F. Halstead Contractor, Inc., 294 Ala. 688, 321 So.2d 169 (1975); Hargrave v. Davis-Hunt Cotton Co., 294 Ala. 697, 321 So.2d 178 (1975); Cobb v. Malone & Collins, 92 Ala. 630, 9 So. 738 (1891).

It is uncontroverted that the amount involved in this suit is $19,000. Myers contended that Posey owed the entire amount; Posey contended that he owed nothing. At the pretrial conference, the parties agreed that the “contested issue of fact” centered on whether the $19,000 was a loan or an investment in the finance business.

Plaintiff Myers argues that there is some evidence in the record to support the $14,-000 figure. Defendant Posey testified on direct examination:

“Q Did you have any money owing to the finance business?
A Yes, sir.
♦ sfc ‡ ijt *
Q Did you have a discussion with Mr. Myers about those accounts?
A Two or three different times.
Q And what was your last discussion with him about them?
A At one time, he asked me could I— this would be the last conversation— could I sell them for even $5,000. And I said Mr. Myers, we have waited so long now, you know, that a finance company wouldn’t buy accounts that are a 90 day period or anything like that. You cannot sell accounts unless they are up to date.
Q Had you suggested to him that those accounts be sold some time prior to that, to salvage them?
A I tried to get him to do that. I did, yes, sir.
Q And what was his response?
A He didn’t want to have anything to do with it.”

Myers contends that this $5,000 figure could have been considered by the jury to offset the $19,000 loan. We do not agree. There was no testimony that the accounts could have been sold for $5,000, or for any other amount. Posey’s testimony was that the accounts could not have been sold for $5,000 at the time of the discussion with Myers.

We have been unable to find any evidence in the record to support the amount of damages awarded. Posey’s motion for new trial should have been granted. This case is like Farmers & Ginners Cotton Oil Co. v. Reliance Insurance Co., 341 So.2d 147 (Ala.1976) and Stone v. Echols, 351 So.2d 902 (Ala.1977).

Therefore, the judgment must be reversed and the cause remanded.

REVERSED AND REMANDED.

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