author: SHORES, Justice.

text:
    CAMPBELL PIPING CONTRACTORS, INC., and United States Fidelity and Guaranty Co. v. HESS PIPELINE COMPANY.
    SC 1782.
    Supreme Court of Alabama.
    Feb. 11, 1977.

      Timothy M. Grogan, Mobile, for appellants.
    William H. Hardie, Jr., of Johnstone, Adams, May, Howard & Hill, Mobile, for ap-pellee.
   SHORES, Justice.

In August, 1973, Campbell Piping Contractors, Inc. (Campbell) entered into an agreement with Hess Pipeline Company (Hess) to build a pipeline for Hess in Mobile County. United States Fidelity and Guaranty Company (U.S.F. & G.) insured Campbell pursuant to the contract. Morgan Nelson was an employee of Campbell and was injured in October, 1973, while attempting to remove some timbers which were being used to support a heavy 36-inch pipe.

The contract between Campbell and Hess contained the following provision:

“B-27 Injuries and Damages
“Responsibility and Liability
“CONTRACTOR assumes entire responsibility and liability, agrees to indemnify and hold harmless OWNER and its representatives, agrees to defend any suit or action brought against them or any of them, and to pay all damages, losses, costs and expenses, including attorneys’ fees sustained or alleged to have been sustained in connection with and to have arisen out of the performance of WORK by CONTRACTOR, its agents and employees and its subcontractors, their agents, and employees, except that OWNER shall bear all damages to crops, timber and improvements lying within the pipeline right-of-way obtained by OWNER, provided such damages shall not have been caused by the negligence of the CONTRACTOR, his agents or employees, his subcontractor, their agents or employees.”

In February, 1974, Morgan Nelson filed what was designated a “PETITION FOR DISCOVERY BEFORE ACTION PURSUANT TO RULE 27(a) and RULE 34, ALABAMA RULES OF CIVIL PROCEDURE,” in which he sought discovery of various kinds. Among others, Hess and Campbell were named as corporations expected to be adverse parties in a suit to be brought for his personal injuries.

On February 14, 1974, attorneys retained by U.S.F. & G. sent the following letter to U.S.F. & G. and Hess:

“United States Fidelity & Guaranty Company
Post Office Box 1138 Mobile, Alabama 36601 Hess Pipeline Company Post Office Box 52
Galena Park, Texas 77547 ATTENTION: Mr. W. R. Jameson
Re: The Petition of Morgan G. Nelson; In the Circuit Court of Mobile County, Alabama, Case No: 43,598
“Gentlemen:
“This firm has been tendered the defense of the above-referenced matter by United States Fidelity and Guaranty Company, the insuror of Campbell Piping Contractors, Inc. Pursuant to contract between Campbell Piping Contractors, Inc. and Hess Pipeline Company, United States Fidelity and Guaranty Company has agreed to defend Hess Pipeline Company in this litigation pursuant to the said contract.
“As you know, this firm has represented Hess Pipeline Company with respect to the construction of the pipeline out of which Morgan G. Nelson’s claim arises and further that we aided in the drafting of the contract referred to herein.
“Inasmuch as, the insuror of Campbell Piping Contractors, Inc. has agreed to defend Hess Pipeline Company in this litigation, pursuant to the contract referred to herein, we do not see where there is a conflict between Hess Pipeline Company on the one hand and Campbell Piping Contractors, Inc. or United States Fidelity and Guaranty Company.
“If either of you have any objection to our representation on the basis above outlined, please immediately advise us. “Very truly yours,
“LYONS, PIPES AND COOK “ /s/ Norton Brooker, Jr.
“Norton Brooker, Jr.
“NB/bn”

Thereafter, on March 25, 1974, the same law firm advised Hess that the court had denied Morgan’s petition for discovery for failure to come within the provisions of Rule 27, ARCP. In this letter, the attorney, retained by U.S.F. & G., stated:

“I would anticipate that very shortly will be filed a suit possibly against Hess Pipeline Company by Mr. Nelson and you should alert probably the legal people to be on the lookout for the suit and advise us when service is made.”

On May 16, 1974, Nelson filed a damage suit against Hess charging Hess with negligence, resulting in his injuries.

On May 22,1974, the following letter was sent to Hess by the firm representing U.S.F. & G.:

“Mr. Howard Mahany, Jr.
Associate General Counsel Amerada Hess Corporation 1185 Avenue of the Americas New York, New York 10036
“Re: Petition of Morgan G. Nelson Circuit Court of Mobile County Case No. 43,598
“Dear Howard:
“I enclose herewith copy of suit papers filed in the Circuit Court of Mobile County, Alabama by Morgan G. Nelson against Hess Pipeline Company and E. L. McDonald, claiming damages for personal injury allegedly received by Nelson on October 9, 1973. You will note the suit claims $1,000,000.00 in damages.
“In our telephone conversation of May 22, 1974, I advised that we had been in discussion with the local U'.S.F. & G. personnel and they advise that before a commitment can be made to defend this suit for Hess Pipeline, the file must be reviewed by their home office and we have been assured that this decision can be made prior to the 30 day period for- answering the suit expires.
“We are advised that Mr. Eilers at the Magazine Point terminal was served copies of the suit on May 21, 1974, but have not received copies of the suit papers as yet from him.
“We also pointed out in our conversation that there may be an excess situation with respect to the indemnity as we cannot tell from the contract documents in our file the damage limits of the indemnity agreement of Campbell Piping Contractors, Inc.
“You advised that you would advise the insurance carrier of Hess Pipeline Company of the suit.
“In the next few days we will check the Sheriff’s return for service on Hess Pipeline Company and advise you of the last day for filing pleadings in the case. We will also make sure that responsive pleadings are filed within the time required by law to protect your company in the event that U.S.F. & G. has not made its decision with respect to the indemnity agreement by that time. However, it is understood that in the event it is necessary for us to file such a response to the suit for Hess Pipeline Company such appearance shall be without prejudice to U.S.F. & G. or Campbell Piping Contractors, Inc., to later withdraw its appearance in the event that coverage for the indemnity is found not to exist or in the event U.S.F. & G. or Campbell Piping determines that it or they will not defend Hess Pipeline Company pursuant to the indemnity agreement.
“Very truly yours,
“LYONS, PIPES AND COOK
“ /s/ Norton “Norton Brooker, Jr.
“NB/vgp
“Enclosure
“cc: Mr. W. R. Jameson
Mr. Tom Elliott, U.S.F. & G., Mobile “P.S. Please send me conformed copies of pages 1-8 and B-7 of the contracts between Hess and Campbell.”

In July, 1974, Hess filed a third-party complaint against Campbell and U.S.F. & G. seeking a declaration that, if Hess was liable to Nelson, it was entitled to recover from Campbell and U.S.F. & G., its insurer, under the provisions of the contract set out above; and that Campbell was obligated to defend Hess in the damage suit brought by Nelson under the same contractual provision.

At the request of Campbell and U.S.F. & G., the third-party claim of Hess was severed from the Nelson damage suit. Thereafter, Hess filed motion for summary judgment against Campbell, supported by an affidavit outlining the following facts which are not disputed:

That Campbell did enter into the contract with Hess, a copy of which was made an exhibit to the motion for summary judgment; that Nelson was injured on the construction site; that the contract contained the provision set out above; that Campbell had presented a sworn affidavit to Hess stating that no liens, charges or claims of any nature existed growing out of the work performed under the contract; that Nelson had filed a petition for discovery prior to instituting his claim for damages, a copy of which was annexed to the motion for summary judgment; and that on or about February 14, 1974, Norton Brooker, Jr., on behalf of the firm of Lyons, Pipes and Cook, wrote to Hess Pipeline Company to advise Hess that U.S.F. & G., the insurer of Campbell, had agreed to defend Hess in the litigation pursuant to the aforementioned contract, and that U.S.F. & G. had tendered the defense to the firm of Lyons, Pipes and Cook. Because of Mr. Brooker’s prior representation of Hess, he requested that Hess advise the firm if it had any objections to that firm representing Hess in the litigation, pursuant to the instructions of U.S.F. & G.; no objection was made and Lyons, Pipes and Cook appeared on behalf of Hess in the proceedings.

Based upon the foregoing facts, the trial court entered its order finding that, as a matter of law, Hess was entitled to a judgment declaring that Campbell is obligated to defend Hess against the complaint of Nelson and to pay any judgment entered against Hess in the action brought against it by Nelson.

Campbell and U.S.F. & G. appealed from this order. The only issue before us is the propriety of the trial court’s granting summary judgment in favor of Hess.

This is a proper case for summary judgment. There are no disputed facts, and the issues have been reduced to questions of law only. There are two such issues: Are Campbell and U.S.F. & G. estopped to deny liability to Hess under the terms of the contract between Campbell and Hess? If so, U.S.F. & G. is required to defend the action because it wrote the insurance required of Campbell under the contract, including liability under the “hold harmless” provision. If they are estopped, there is no necessity to consider the second issue, whether Campbell would be liable to Hess under the indemnity provision of the contract, had there been no action by U.S.F. & G., as Campbell’s insurer, constituting an estoppel.

The trial court had a record before it, as we do now, which shows without contradiction, that the law firm of Lyons, Pipes and Cook represented Hess in the negotiations with Campbell leading to the contract between them. Mr. Brooker, with that firm, had represented Hess in drawing the contract which contains the indemnity provision. As Hess’ lawyer, Mr. Brooker would have been attempting to draw a broad indemnity provision which would require Campbell to indemnify his client from all claims arising out of the construction of the pipeline. When Nelson filed the so-called discovery petition, it clearly indicated that Nelson intended to file a suit for damages for personal injuries against Hess. At that stage, U.S.F. & G., as insurer of Campbell, agreed to defend Hess under the agreement between Campbell and Hess and retained Hess’ lawyer for that purpose. Mr. Brook-er, promptly and properly, pointed out to both U.S.F. & G. and Hess that, only because Campbell and U.S.F. & G., its insurer, had agreed to undertake the defense of the litigation on behalf of Hess, was a conflict of interest eliminated, permitting him to represent both parties.

No objection was raised to Mr. Brooker’s proceeding, at the instigation of U.S.F. & G., to defend both Campbell and Hess in the litigation.

Only after Nelson filed the suit for damages did U.S.F. & G. raise a question about defending Hess. However, it was perfectly clear from the time the petition for discovery was filed by Mr. Nelson that Hess would be an adversary party in the damage suit. It was also obvious from Mr. Brook-er’s letter that only if Campbell and U.S.F. & G., as Campbell’s insurer, agreed to defend Hess, could he possibly represent U.S.F. & G. and Hess, too. This, for the reason that if Campbell and U.S.F. & G. denied that Campbell was obligated to defend Hess under the indemnity provision of the contract, then the positions of U.S.F. & G. and Campbell on the one hand and Hess on the other, would be in direct conflict. Hess, as Mr. Brooker’s original client, had a right to object to his representing both Campbell and Hess, at the behest of U.S.F. & G., if Campbell and U.S.F. & G. were prepared to deny that Campbell owed Hess the representation under the contract between them. Relying on Campbell and U.S.F. & G.’s agreement to defend against Nelson’s petition for discovery, pursuant to the contract, Hess made no objection to Mr. Brooker appearing on its behalf and also Campbell’s.

Under these circumstances, we think it is too late for U.S.F. & G., insurer of Campbell, to now take the position that it owes no defense to Hess. With full knowledge that the lawsuit was inevitable, and without any reservation of rights to later deny liability, it undertook to defend both Campbell and Hess in the Nelson litigation. It is now estopped to deny that it is so obligated.

The doctrine of estoppel is said to be founded upon principles of equity, morality and justice. 31 C.J.S. Estoppel § 1. When a liability insurer, by assuming the defense of an action leads one to believe liability to do so is not denied, it would be unfair to subsequently permit that insurer to deny coverage, when, without reservation and with knowledge; it assumes exclusive control of the defense of an action. See 38 A.L.R.2d 1148, § 5[b], citing Security Ins. Co. v. Jay, 109 F.Supp. 87 (D.C.Minn.1952); Lincoln Park Arms Bldg. Corp. v. U. S. F. & G. Co., 287 Ill.App. 520, 5 N.E.2d 773 (1936); General Tire Co. v. Standard Acci. Ins. Co., 65 F.2d 237 (CA8th Minn.1933). The general rule is limited by the principle that the insurer may avoid the operation of the rule by giving notice that the assumption of the defense is not a waiver of its right to deny coverage.

The general rule is stated in the following manner at 38 A.L.R.2d 1151, § 3:

“ . . .a liability insurer which assumes and conducts the defense of an action brought against the insured with knowledge of facts taking the accident or injury outside the coverage of the policy, and without disclaiming liability or giving notice of a reservation of its right to deny coverage, is thereafter precluded in an action upon the policy from setting up the defense of noncoverage. . . . ”

Cases from thirty jurisdictions are said to follow this general rule.

A like number of jurisdictions also hold that the insurer need only give timely notice that its undertaking to defend does not constitute a waiver of any coverage question it might have. We can see no reason for a distinction to be made in this case.

Applying these general rules to the facts of this case leads us to conclude that Campbell and U. S. F. & G. are estopped to deny that Campbell, and thereby U.S.F. & G. as its insurer, owes Hess a defense of the Nelson litigation. An examination of the indemnity provision of the contract between Campbell and Hess raises real questions as to whether it was intended that Campbell was to defend Hess against claims based upon the alleged negligence of Hess itself. We have repeatedly held that such provisions must be construed in favor of the indemnitor in instances where the indemnity is not contracted for from an insurance company engaged in the business of writing, for consideration, such coverage, and that such provisions must succinctly and clearly indicate that the indemnitor is required to indemnify the indemnitee against loss occasioned by his own negligence. U.S.F. & G. v. Mason & Dulion Co., 274 Ala. 202, 145 So.2d 711 (1962).

Under the undisputed facts in this case, U.S.F. & G. undertook to defend the action brought by Nelson against Campbell and against Hess. It retained an attorney for that purpose. When the attorney pointed out that a conflict would exist which would prohibit his representing both Campbell and Hess if Campbell (or U.S.F. & G. as its insurer) denied that Campbell was obligated to Hess under the indemnity provisions of the contract, it was conceded on all sides that Campbell and U.S.F. & G. agreed to defend Hess pursuant to the contract.

Campbell and U.S.F. & G. argue on appeal that U.S.F. & G.’s undertaking to defend Hess in the Nelson litigation should be limited to the defense offered in the discovery proceedings and should not be treated as an agreement to defend Hess in any further litigation brought by Nelson against Hess. This position is not tenable. First, if U.S.F. & G. or Campbell, had so intended to limit the defense undertaken, it was incumbent, at least upon U.S.F. & G., to so state. Both U.S.F. & G. and Campbell were aware of the provisions of the contract, which Hess now claims requires Campbell to defend the Nelson damage suit. Neither of them raised any question about whether it did require Campbell to defend, but instead U.S.F. & G. volunteered, as Campbell’s insurer, to undertake to defend. It should have indicated to both Campbell and Hess that in so doing it was reserving any rights it may have to deny coverage under its policy and, further, should have indicated that it questioned Campbell’s obligation to defend any further litigation under the contract terms. U.S.F. & G. had issued its policy covering Campbell under the “hold harmless” provision of its contract with Hess. Its liability was dependent upon Campbell’s liability under that provision. It had every opportunity to reserve its right to deny that Campbell, its insured, was required to indemnify Hess under that provision, when it received notice that Nelson was preparing to bring suit against Hess. It did not do that, nor did Campbell do that. Instead, U.S.F. & G. proceeded without any mention that either it or its insured questioned their obligation to provide a defense.

U.S.F. & G. and Campbell, presumably knowing that, nevertheless undertook and agreed to defend Hess when the Nelson litigation was initiated. They had the right to reserve for later consideration the question of whether the contractual provision required Campbell to indemnify Hess for loss occasioned by its own negligence. They made no effort to do that but, instead, proceeded to defend Hess, specifying that such defense was undertaken pursuant to the contract between Campbell and Hess. We think they are, therefore, estopped to deny that the provision requires Campbell and U.S.F. & G., as its insurer, to afford Hess a defense. The trial court so held, and granted Hess’ motion for summary judgment against Campbell. We find no error to reverse.

We are mindful that no ruling adverse to U.S.F. & G. has been made by the trial court. It granted Hess’ motion for summary judgment against Campbell only. However, since the position of Campbell and U.S.F. & G. are identical on this appeal, we need not pass upon the assertion of Hess that U.S.F. & G. has no standing as an appellant.

The judgment of the trial court is affirmed.

AFFIRMED.

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


source: Caselaw Access Project

license: Public Domain

text:
    G. L. MYERS and W. B. Sanford v. PROTECTIVE LIFE INSURANCE COMPANY.
    SC 1786.
    Supreme Court of Alabama.
    Feb. 11, 1977.
    William H. Mills, of Rogers, Howard, Redden & Mills, Birmingham, for appellants.
    Drayton Nabers, Jr., and William A. Robinson, Birmingham, for appellee.
   SHORES, Justice.

Myers and Sanford have appealed from an order granting a motion for summary judgment in favor of Protective. The opinion and decree of the trial court filed on March 1, 1976, succinctly summarizes the background of the appellants’ claims for commissions on renewal premiums, which they claim Protective should pay, as the reinsurer of the business of Empire Life Insurance Company of America. It is, therefore, reproduced here:

“MEMORANDUM OPINION AND DECREE

“On December 31, 1975, the complainant-intervenor, Protective Life Insurance Company, filed a cross-bill for declaratory judgment praying that this Court declare that Protective has no liability to the respondents-intervenors, Myers and Sanford, former agents of Empire Life Insurance Company, for renewal commissions on premiums collected and to be collected by Protective under former Empire policies which have been reinsured by Protective. Myers and Sanford filed a motion to dismiss. Protective then filed a motion for summary judgment supported by a lengthy affidavit containing sixteen documentary exhibits. Myers and Sanford did not submit any opposing documents, proof or brief whatsoever, and upon oral argument on the merits of Protective’s motion, no fact was in any way contested by Myers and Sanford. The underlying facts are therefore completely undisputed and show the following:

“This Court placed Empire into receivership by order of this Court dated June 29, 1972.

“In October 1973, pursuant to the order of this Court, the Receiver for Empire solicited proposals for the reinsurance of all of the life insurance policies of Empire. In response to the solicitation, Protective filed a Treaty of Assumption and Bulk Reinsurance which offered to reinsure the Empire policies. This Treaty as initially submitted had been reviewed by the Empire Receiver and by the Insurance Commissioners of the States of Arkansas, Montana, Nebraska, Oklahoma and Texas, who unanimously recommended the Treaty as being in the best interests of the Empire policyholders.

“Thereafter, the Receiver petitioned this Court seeking the approval of the Treaty and authorization to enter into it and implement it. Myers and Sanford, as general agents of Empire, filed a motion to intervene and objections to the Treaty. They objected to the Treaty on the ground, among others, that it did not contain equitable provisions for the payment of creditors and agents of Empire. The motion to intervene was granted, and the objections of Myers and Sanford were treated as their answer to the Receiver’s petition.

“The Treaty explicitly limits the liability of Protective with respect to commissions due agents of Empire. It provides that Protective would have no liability to agents of Empire, with certain exceptions not relevant here, as follows:

“ ‘F. Commissions. Protective agrees to assume Empire’s liability with respect to any commission due for premiums collected by Empire before June 29, 1972, but only to the extent that such commission was included in the liabilities reported in the Annual Statement of Empire as of December 31, 1972 and reflected on Empire’s books and records. It is expressly understood that Protective is not assuming any obligation for commissions not reflected on such Annual Statement or due on account of premiums collected after June 29, 1972 or to be collected in the future.
“ ‘G. . Protective does not assume any liability and shall have no liability for:
* * * * * *
“ ‘6. Any obligation for commission[s] which may have been due on account of premiums collected or to be collected after June 29, 1972.’ ”

“Following the intervention by Myers and Sanford, this Court conducted a twelve-day plenary trial at which the Court allowed all evidence offered by any and all parties, including Myers and Sanford, relating directly or indirectly to whether Empire was insolvent or whether the Protective Treaty should be approved by the Court. Throughout this trial, intervenors Myers and Sanford were represented by counsel. Following this hearing, on June 14, 1974 this Court found that Empire was insolvent in excess of $6,000,000 and that further efforts at rehabilitation of Empire would be useless. The Court specifically approved the Protective reinsurance Treaty containing the language quoted above limiting Protective’s liability to Empire’s agents for commissions and ordered Empire liquidated. Myers and Sanford appealed to the Alabama Supreme Court. The appeal was dismissed by order of the Supreme Court on September 23, 1974.

“Following approval of the last amendment to the Treaty, Protective reinsured the Empire policies in accordance with the provisions of the Treaty as amended.

“Under the Treaty, the Receiver assigned to Protective all of Empire’s policies and most of Empire’s assets. The Receiver retained $2,000,000 for the payment of expenses and claims not assumed by Protective, such as those of agents like Myers and Sanford. The Treaty as consummated placed a 50% moratorium on policyholder cash values which means that policyholders may withdraw only 50% of the cash values they had built up under their policies. The Treaty contemplates a gradual reduction in the moratorium as premium income and income from Empire assets are applied to reduce the deficit between the reserve liability on the policies and the value of the assets transferred by the Empire Receiver to Protective. Under the Treaty, Protective guarantees the elimination of the moratorium in ten years.

“Pursuant to the provisions of the Alabama Uniform Insurers Liquidation Act, Title 28A, § 620 ff, Code of Alabama, both intervenors Myers and Sanford each filed Proofs of Claim with the Receiver in which they claimed renewal commissions due them or to become due them under their respective agency contracts with Empire. The Proofs of Claim raised the issue of whether Myers and Sanford were entitled to renewal commissions accruing subsequent to June 14, 1974, the date on which this Court ordered liquidation. This issue was specifically briefed and argued by the respective parties. On June 13, 1975, this Court entered its order on said claims, declaring that:

“ ‘all rights to renewal commissions terminated on June 14,1974 under the provisions of Title 28-A, § 645, Code of Alabama, as recompiled, 1958, which fixes the rights and liabilities of the insurer as of the date on which the order directing liquidation of the insurer is filed in the office of the clerk.’

“Though this order was appealable under Title 28A, § 638, neither Myers nor Sanford appealed.

“Myers and Sanford then filed separate actions against Protective in the United States District Court for the Northern District of Texas, seeking recovery of all commissions allegedly due under their agency contracts with Empire on premiums received by Protective on reinsured Empire policies, and shortly thereafter this action for declaratory judgment was filed by Protective.

“Notwithstanding the foregoing facts, Myers and Sanford insist, on the basis of their former contracts with Empire, that Protective is not entitled to judgment on its cross-bill. These contracts entitled Myers and Sanford to certain renewal commissions computed as a percentage of premiums received by Empire on certain policies sold by Myers and Sanford. It is undisputed that Protective was not a party to these contracts, nor were they assigned to Protective. Myers and Sanford claim nevertheless that their right to renewal commissions under them is a ‘vested property right.’ The apparent thrust of respondents’ argument is that it was wrongful for the Receiver to assign the Empire policies to Protective in a Treaty which cuts off Protective’s liability for renewal commissions. The Court concludes that respondents’ claim is wholly un-meritorious and is due to be rejected on at least six separate and independent grounds. The Court further concludes that Protective is entitled to judgment as a matter of law.

“1. Both Myers and Sanford are barred from raising such claims in this proceeding by the prior judgments of this Court, final and binding in all respects as to them. Protective, Myers and Sanford were all parties to the protracted adversary proceeding that culminated in this Court’s approval of the reinsurance Treaty by order dated June 14, 1974. At a twelve-day trial prior to that order, this Court heard all claims advanced by either Myers or Sanford in opposition to approval of the reinsurance Treaty. If it is Myers’ and Sanford’s claim that it was wrongful for the Empire Receiver to transfer to Protective rights to the entire premiums from policies sold by Myers and Sanford because they had ‘vested property rights’ to a part of these premiums, they could and should have raised this claim at that trial. All claims of Myers and Sanford that were raised or could have been raised are merged in the June 14, 1974 judgment, and that judgment conclusively bars the litigation of the claims made by Myers and Sanford in opposition to Protective’s motion for summary judgment, which claims were decidedly germane to the central issue of the 1974 trial — -whether the Treaty should be approved.

“2. At a second adversary proceeding on the claims by Myers and Sanford against the receivership estate, they argued explicitly that their right to renewal commissions under their contracts with Empire was a ‘property’ right which could not be limited in receivership proceedings. This Court specifically rejected that argument and ordered that ‘all rights [of Myers and Sanford] to renewal commissions terminated on June 14, 1974 under the provisions of Title 28A, Section 645, Code of Alabama.’ This order was an appealable order under Title 28A, § 638, but Myers and Sanford did not appeal the order. This specific adjudication is binding on Myers and Sanford and bars them from asserting that Protective, as Empire’s successor, is liable for renewal commissions which this Court has determined terminated on June 14, 1974, long before the reinsurance treaty was consummated.

“3. Apart from res judicata and related doctrines, the Court rejects the claims of Myers and Sanford and concludes that Protective is entitled to judgment on the merits. Respondents’ contentions run headlong into the provisions of Act No. 1040 passed in the 1975 Alabama legislative session. This Act specifically provides that .

“ ‘With the exception of costs of administration of receiverships, recorded tax liens and judgments obtained prior to initiation of delinquency proceedings, and secured creditors claims, no claim of a creditor shall be preferred over that of a policyholder of the insurer in receivership. . . . This act shall apply to all policyholders of insurers in receivership on the effective date of this act and to all future receiverships.’

“In this case, the cash values of policyholders accepting Protective’s reinsurance have been subjected to a 50% moratorium, which means that for an indefinite period of time the policyholders can withdraw no more than 50% of their cash values. According to Myers’ and Sanford’s contentions, they, and presumably other agents similarly situated, should be entitled to 100% of their contractual renewal commissions. Moreover, Myers and Sanford seek to siphon off part of the income which the Treaty provides will be applied to reduction of the moratorium amount thus further subordinating the policyholders to agents.

“As a result, if this Court were to accept the contentions of Myers and Sanford, agents of Empire would be exalted over all other unsecured creditors and paid 100% of their claims, while policyholders would be entitled to only 50% of their cash values and their moratorium reduction would be measurably forestalled. Such subordination of the interests of policyholders to agents is contrary to both the substantive provisions of and public policy expressed in Act 1040.

“4. Apart from Act No. 1040, Myers’ and Sanford’s claims are completely without merit. The claims are necessarily based on the provisions of their former contracts with Empire. Protective was not a party to either of these contracts, nor were they assigned to Protective pursuant to the Treaty. Thus, Myers’ and Sanford’s position at best is that these contracts created ‘vested property rights’ to future renewal commissions which somehow were ‘wrongfully’ transferred to Protective.

“There is absolutely no provision in either the Myers or Sanford contract which indicates even in the slightest that a part of each premium was to be the ‘property’ of Myers or Sanford upon its receipt by Empire. There is no provision whatsoever for segregating a part of the premiums or keeping renewal commissions in a separate account. Rather, the contracts created simple contractual obligations of Empire to the agents to pay renewal commissions in accordance with schedules attached to the contracts. It is quite simply impossible to reach any other conclusion.

“5. If it is assumed arguendo that as between Empire and Myers and Sanford, the agents had a property interest in that part of each premium received equal to the renewal commission, it is nevertheless impossible to conclude that Protective, which receives the premiums by virtue of its Treaty, must pay renewal commissions to the agents. There is no dispute that under the Treaty by which Protective agreed to rein-sure Empire’s policies, it explicitly insulated itself from all liability claimed by Myers and Sanford.

“The only theory which Myers and Sanford can conceivably offer for recovery of the renewal commissions is that Protective is a constructive trustee of them. A constructive trust arises when someone through some unjust, unconscionable or unlawful means acquires legal title to property which equitably belongs to another. Ex Parte Morton, 261 Ala. 581, 75 So.2d 500 (1954); Knowles v. Canant, 255 Ala. 331, 51 So.2d 355 (1951). As already demonstrated, however, no part of the premiums collected by Protective are Myers’ and Sanford’s ‘property.’ But even if Myers and Sanford did have a ‘property right’ to renewal commissions under their contracts with Empire, in no sense could it be said that Protective unjustly or wrongfully acquired this ‘property right’ to the Empire premiums. Pursuant to a public solicitation, Protective submitted its Treaty to this Court. In clear and unambiguous language, Protective stated that it assumed no liability to any agent for renewal commissions (with certain exceptions not relevant here). Rather, the Treaty provided that a $2,000,000 fund would be left with the Receiver to pay all claims not covered by the Treaty. Following twelve days of trial on this Treaty — including its explicit provisions limiting Protective’s liability to all agents — the Treaty was approved by this Court. If the Treaty, which cuts off all liability of Protective to Myers and Sanford, is somehow unjust with respect to them, their recourse was to appeal this Court’s judgment to the Alabama Supreme Court, which they did but which appeal was dismissed. Accordingly, no valid argument can be made that alleged ‘property’ which was acquired pursuant to a judicially approved contract was wrongfully acquired or acquired by means which would give rise to a constructive trust.

“Finally, a constructive trust is a remedy to promote equity, and under no concept of equity would it be appropriate to establish a constructive trust which would vault agents into the status of preferred creditors receiving 100% of their claims, when policyholders have had their rights to cash values cut by 50%, and when so preferring the agents would result in a slower reduction of the moratorium imposed on policyholder cash values.

“6. The provisions of Tit. 28A, § 645 provide an additional basis for declaring that Protective has no liability to Myers and Sanford for renewal commissions. Under the provisions of this section, as this Court has previously held, Myers’ and Sanford’s entitlement to renewal commissions terminated on June 14, 1974. Certainly if Myers’ and Sanford’s rights to renewal commissions have been terminated as to Empire, they have been terminated as to Protective, who Myers and Sanford must claim is Empire’s successor in interest. Moreover, even apart from § 645, a valid order of liquidation automatically terminates all future contract obligations of the liquidating company. Layton v. Illinois Life Ins. Co., 81 F.2d 600 (7th Cir. 1936). Thus, under both statutory and decisional law, Myers’ and Sanford’s contracts with Empire terminated on June 14, 1974 and create no basis for recovery against Protective.

“Accordingly, on each of the above stated grounds, this Court concludes that there is no genuine issue as to any material fact and that Protective is entitled to judgment and the following declaration of its rights as a matter of law:

“1. Protective has no liability whatsoever to either Myers or Sanford for payment of any renewal commissions, past, present or future, or an amount equal to any renewal commissions by virtue of its reinsurance and assumption of Empire policies or on any other ground;

“2. The sole right of Myers and Sanford to recover renewal commissions allegedly due them is through the claim procedure established for all Empire creditors by this Court.

“Respondents’ Motion to Dismiss is overruled. The Receiver’s Motion to Dismiss is granted, without prejudice.

“The costs of this proceeding shall be taxed to Myers and Sanford.

“DONE this 1st day of March. 1976. /s/ W. C. Barber

William C. Barber Circuit Judge”

The only issue before us is whether the trial court correctly granted Protective’s motion for summary judgment. We conclude that it did.

The trial court ruled adversely to the appellants by its order of June 14, 1974, in which it approved the Protective Treaty of Assumption and Bulk Reinsurance. The appellants filed a motion seeking to have the trial court set aside that judgment, which was overruled on November 22, 1974. Thereafter, Myers and Sanford appealed to this court from the June 14th order, but that appeal was dismissed by this court on September 23, 1975, when the appellants, after notice to do so, failed to file in this court a transcript of the proceedings had in the trial court.

On March 26, 1975, the Receiver filed a petition seeking the trial court’s approval of an “Agreement to Effectuate Treaty of Assumption and Bulk Reinsurance,” which agreement made certain amendments to the Protective treaty and otherwise provided for its effectuation. Myers and Sanford made extensive objections to the treaty, including their claim that the treaty inequitably preferred policyholders over creditors of Empire. The trial court found that all rights of Myers and Sanford to renewal commissions were terminated on June 14, 1974, and ordered the Receiver to pay accrued commissions to that date. The trial court, by its order of June 13,1975, expressly denied claims for commissions on renewal premiums as contended for by Myers and Sanford in that proceeding. Neither Myers nor Sanford appealed from that judgment of the trial court, although an appeal from such order is authorized by Title 28A, § 638, Code.

We think the trial court correctly concluded that Protective was entitled to summary judgment. The affidavits and exhibits filed by Protective in support of its motion set out all of the proceedings which had previously been before the trial court involving the same matter raised by Protective’s bill for declaratory judgment. Myers and Sanford failed to file any counter-affidavit. These exhibits clearly show that the matter of renewal commissions after June 14, 1974, had been litigated in at least two separate proceedings in which Protective and Myers and Sanford were at all times parties. Myers and Sanford failed to perfect an appeal from either order entered in those proceedings. Therefore, the trial court correctly held that Protective was entitled to summary judgment as a matter of law. Weiss v. U. S., C.A.2d 1955, 227 F.2d 72, certiorari denied 350 U.S. 936, 76 S.Ct. 308, 100 L.Ed. 817; Morey v. Wellford, C.A. 1944, 78 U.S.App.D.C. 387, 141 F.2d 282. The rule is stated thusly in Wright & Miller, Federal Practice and Procedure: Civil § 2735:

“A party may move for summary judgment on the ground that another action already has adjudicated the disputed claim on the merits and therefore it should not be relitigated because of res judicata, or that the earlier litigation actually determined an issue crucial to both actions so that an application of collateral estoppel entitles the movant to a judgment as a matter of law in this second action. Indeed, a Rule 56 motion often is the most appropriate vehicle for determining the validity of a defense of former adjudication.
“. . . When the claim being litigated was or could have been raised in an earlier action on the same cause of action between the same litigants, a summary judgment based on the defense of res judicata precludes the suit through the application of either the principle of ‘merger’ or of ‘bar.’ . . .”

The judgment appealed from is, therefore, affirmed.

AFFIRMED.

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

       “The sole authority relied on by Myers and Sanford to sustain their position is General American Life Ins. Co. v. Roach, 179 Okla. 301, 65 P.2d 458 (1937). Roach held that under the terms of the specific agency contract then under consideration, the agent possessed a vested property right to renewal commissions which could not be abrogated by the assignee of the contract. Roach has been specifically rejected in Palmer v. Peoria Life Ins. Co., 376 Ill. 517, 34 N.E.2d 829 (1941). The North Carolina Supreme Court expressly refused to follow Roach in Security National Bank v. Educators Mut. Life Ins. Co., 265 N.C. 86, 143 N.E.2d 270 (1965), and the underlying rationale of the decision — that agents may have an indefeasible property right in renewal commissions — has been rejected time and again. See Liberty National Insurance Co. v. Reinsurance Agency, Inc., 307 F.2d 164 (9th Cir. 1962); Layton v. Illinois Life Ins. Co., 81 F.2d 600 (7th Cir. 1936). In any event Roach has no application to this case. First, the contract under review there made ‘elaborate provision’ for keeping the agents’ renewal commissions ‘separate’ from the company’s share of each premium, and the company reserved a ‘lien’ upon ‘moneys’ in its possession to secure any indebtedness of the agent to the company thereby, according to Roach, indicating that the agent’s right to renewal commissions was a ‘property’ right. In neither the Myers nor Sanford contract is there any provision suggesting separate accounts or the right of Empire to a lien. Second, in Roach the reinsuring company was specifically assigned the agent’s contract, not the case here. Third, the assignment of policies to Protective and Protective’s disclaimer of liability were expressly approved by the receivership court, which does not appear to be the case in Roach. Fourth, it does not appear in Roach that a decree in favor of the plaintiff-agent would result in inequity to the policyholders by subordinating their interests to that of agents or lengthening the reduction of a moratorium imposed by the reinsurance. Fifth, in Roach the reinsuring company took all of the ceding company’s assets, whereas here, $2,000,000 was left with the Receiver to pay the claims of creditors such as Myers and Sanford. Sixth, in Act No. 1040, the legislature of Alabama has clearly promulgated the public policy of this State of preferring policyholders over all other non-secured creditors which public policy would be abrogated by any ruling which resulted in subordinating policyholders to agents; no such public policy was acknowledged in Roach.


author: MADDOX, Justice.

text:
    Bobby Jean ANDERTON v. Clark LATHAM et al.
    SC 1823.
    Supreme Court of Alabama.
    Feb. 11, 1977.
    J. G. Speake, of Speake & Speake, Moul-ton, for appellant.
    Hardy B. Jackson, of Jackson & Patterson, Arab, for appellees.
   MADDOX, Justice.

This is a will contest involving the will, or purported will, of Leemon F. Latham, executed on December 17, 1974. Latham had previously executed a will on November 22, 1952, in which his niece, Bobby Jean Ander-ton, the contestant, was named the sole beneficiary. The proposed 1974 will revoked all prior wills and divided the estate to others leaving Mrs. Anderton only $500. The contest was transferred to the Circuit Court of Morgan County, where it was heard without a jury. The trial court held that the proposed will of Leemon F. La-tham, executed on December 17, 1974, was the true last will and testament of the deceased. Contestant appealed. We affirm.

The grounds for contest are as follows: (1) the purported will is not the true last will and testament of the deceased; (2) the deceased was mentally incapable of making and executing the will in question; (3) the deceased was not of testamentary capacity on the 17th day of December, 1974; (4) that at the time the alleged will was executed, Leemon F. Latham was incapacitated to make a will or dispose of his property due to his feeble condition. Contestant’s primary argument during trial, and in her brief on appeal, centers on her first ground for contest, that the December 17,1974, will is not the true last will and testament of the deceased.

The primary issue is whether the will dated December 17, 1974, contains the genuine signature of Leemon F. Latham. Mrs. Anderton contends that it does not, and that where a will is contested on the ground that the signature of the testator is a forgery, the burden of proof is on the proponent to prove the genuineness of the signature. She says that the proponent failed to meet this burden. Furthermore, she contends that she proved by the expert testimony of a professional examiner of questioned documents, that the testator’s signature on the December 17,1974, will was not the same signature of the person whose signature is on the 1952 will. Neither party questions that the 1952 will contains the true and genuine signature of Leemon F. Latham.

Anderton asserts that the proponent of the disputed will rests upon the erroneous assumption that all that was required in meeting the burden of proof was to make out a prima facie showing of due execution. Anderton further asserts that the trial court in rendering its decree erred by adhering to this evidentiary proposition.

The trial judge, in his final decree, discussed the burden of proof and gave his reasons for finding that the later will contained the testator’s genuine signature. He held:

“The burden of proof in a case of this kind in order to make out a prima facie case rests on the proporant (sic) of the will to offer some testimony showing the execution of the will by the testator and the attestation of the will by the witnesses as prescribed by the statutes. It is the duty of the contestants (not a shift of the burden of proof) to offer evidence to satisfy the court that the testator did not sign the instrument, or that the instrument should not be probated as the will for some other reason. Massey vs. Reynolds, 213 Ala. 178, 104 So. 494. It is said in a later case that it is the duty of the proponent who claims under the disputed will to prove to the reasonable satisfaction of the court that the testator did sign the will propounded for probate and did cause it to be attested by two witnesses who subscribed their names thereto in the presence of the testator. Hancock vs. Frazier, 264 Ala. 202, 86 So.2d 389.”

We find that the trial court correctly applied the law, and we have reviewed his findings of fact in accordance with this Court’s rule of review, and fail to find they are clearly and palpably wrong.

Anderton contends that the trial court erred in relying upon the cases of Massey v. Reynolds, 213 Ala. 178, 104 So. 494 (1925); Hancock v. Frazier, 264 Ala. 202, 86 So.2d 389 (1956), as authority to support the ruling contained in its decree. Mrs. Anderton contends that Hancock, supra, is factually distinguishable from the instant case. Unlike Hancock, where the facts support the affirmance of the validity of the will, An-derton contends that not one single witness testified on behalf of the proponent who knew the signature and the handwriting of Leemon F. Latham.

Anderton asserts that when suspicious circumstances surround the execution of a will by a testator, as she contends happened here, that the proponent must do more than prove prima facie the due execution thereof, citing In Re: O’Connor’s Estate, 105 Neb. 88, 179 N.W. 401 (1920). Suffice it to say that the rule regarding the burden of proof upon a proponent is clearly set out in Massey v. Reynolds, supra, which the trial court followed.

Finally, Anderton contends that extraordinary weight should be given to the testimony of the examiner of questioned documents. We reject this.

The conclusion of a handwriting expert on genuineness is an expert comparison and as such was to be given due, but not extraordinary, consideration by the trial court. The trial judge saw and heard the witnesses, who proved execution. The trial judge found that their testimony was not impeached by the expert witness’ conclusions. See Cox v. Logan, 262 Ala. 11, 76 So.2d 169 (1954).

AFFIRMED.

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


author: ALMON, Justice.

text:
    STATE of Alabama v. Joseph William DORROUGH and Cecil E. Norris.
    SC 1888.
    Supreme Court of Alabama.
    Feb. 11, 1977.
    William J. Baxley, Atty. Gen. and George K. Elbrecht and William G. O’Rear, Asst. Attys. Gen., for the State.
    Richard H. Dorrough, Montgomery, for appellees.
   ALMON, Justice.

The State of Alabama appeals from a judgment of the Circuit Court holding unconstitutional Act No. 447, 1975 Regular Session of the Alabama Legislature, effective September 22, 1975.

On November 25, 1975, appellees Joseph W. Dorrough and Cecil E. Norris were arrested for hunting deer at nighttime. They were subsequently convicted in the Inferior Court of Clarke County under Tit. 8, § 86, Code of Alabama 1940, Recompiled 1958, and fined $250.00 each. They appealed the conviction to the Circuit Court.

On November 26, 1975, the district attorney for the First Judicial Circuit instituted condemnation and forfeiture proceedings against a 1976 Chevrolet four-wheel drive Blazer, two rifles, and two shotguns which had been in the possession of the appellees. The State prayed “that all right, title and claim of all persons in and to said property be sold . . . .” The forfeiture proceedings were instituted under Act No. 447, supra.

“Section 1. Any motor vehicle, or any gun, rifle, ammunition or other hunting equipment which has been or is used for illegal nighttime deer hunting in Clarke County shall be contraband, and, in the discretion of the circuit court of such county, may be forfeited to the State of Alabama, as hereinafter provided.”

The issue before us is whether Act No. 447 violates either Article 4, § 104(10) or § 104(14) of the Alabama Constitution of 1901:

“Sec. 104. The legislature shall not pass a special, private, or local law in any of the following cases:
“ (10) Providing for the sale of the property of any individual or estate;
“ (14) Fixing the punishment of crime;

The State does not argue that Act No. 447 is not a local law. See Opinion of the Justices, 284 Ala. 626, 227 So.2d 396 (1969). It contends that § 104(14) of Article 4 does not apply because a forfeiture is not a punishment, but offers no reasons why § 104(10) of Article 4 should not apply.

Article 4, § 104(10), prohibits our lawmakers from passing a local law providing for the sale of property of any individual. Neither the briefs nor our research of the proceedings of the 1901 Constitution or subsequent case law resulted in any aid to interpreting this provision. However, taking the words of the provisions as they would normally be understood, we see no reason why it would not apply to a forfeiture case. An involuntary sale of an individual’s property with the proceeds going to the State is the direct consequence of a forfeiture proceeding. Sec. 3 of Act No. 447 requires that the condemnation proceedings against any motor vehicle or hunting equipment be conducted in the same fashion as those used in the illegal transportation of alcoholic beverages, and Sec. 250 of Title 29, Intoxicating Liquors, requires that property illegally used in the transportation of liquor be sold.

Conceivably, the drafters meant the provision to apply only to voluntary sales as distinguished from involuntary sales, or conceivably, only to specifying the procedure of an involuntary sale as distinguished from specifying what act might require an involuntary sale. However, we see no reason to so speculate; the words of the provision are clear.

Moreover, if the legislature allowed each county to determine what acts constitute a forfeiture of an individual’s property, it would be furthering the evil the drafters of Art. 4, § 104, attempted to eliminate.

“The evil of local legislation has long been recognized, not only in Alabama, but in many other States of the Union. A number of recent State constitutions have endeavored to check this tendency on the part of the Legislative Department, by absolute prohibition of local or special laws in certain enumerated cases. This method of enumerating the subjects, as to which the legislature is prohibited from passing local, special or private laws, seems to be the only feasible plan of accomplishing the result, and has received the approval of the following States: California, Colorado, Florida, Georgia, Idaho, Illinois, Indiana, Iowa, Kentucky, Louisiana, Maryland, Mississippi, Missouri, Montana, Nevada, New Jersey, New York, South Carolina, North Dakota, Oregon, Pennsylvania, South Dakota, Texas, Washington, West Virginia, Wisconsin and Wyoming. The reason why the other States have not sought to check this evil by similar constitutional limitation on the power of the legislature, is no doubt due to the fact that they have not framed new constitutions since the danger from this class of legislation has become so patent, and its rapid and ever increasing growth so alarming.
“The Constitutional Convention of 1875 endeavored by what were then regarded as stringent provisions, to prevent the growth of such legislation in Alabama, but that their efforts failed, is made evident by the ever increasing flood of local and special laws which fill volumes containing the act of the General Assembly. In recent years the number of local laws enacted have outnumbered the general laws in the proportion of about twenty to one. The books containing the general laws of the last two sessions of the General Assembly are less than the size of the old blue backed Webster spelling book, while the volumes containing the local laws of those sessions are nearly ten times the size.
“These local, special or private bills which we have sought to prohibit and regulate destroy the harmony of the law, consume the time of the legislature, and in some State [sic] have been the fertile source of jobbery. In the enumeration of subjects concerning which it is proposed the General Assembly shall not legislate by special, private or local law, we have endeavored to include those matters which seem to have consumed most of the time of the legislature and occupied most of the space in the published acts.” Report of the Committee on Local Legislation, Official Proceedings, Constitutional Convention 1901, State of Alabama, Vol. 1, pp. 827-828.

Having concluded that Act No. 447, 1975 Regular Session of the Alabama Legislature, violates Article 4, § 104(10) of the Alabama Constitution of 1901, we need not determine whether it also violates § 104(14) of Article 4.

The trial judge was correct and the judgment is hereby affirmed.

AFFIRMED.

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


text:
    Marguerite W. WARD v. Thomas F. SEALE, Administrator.
    SC 1929.
    Supreme Court of Alabama.
    Feb. 11, 1977.

      David A. Reid, Upchurch & Reid, Livingston, for appellant.
    Ira D. Pruitt, Pruitt & Pruitt, Livingston, for appellee.
   MADDOX, Justice.

The circuit court appointed an administrator ad colligendum of an estate and empowered him to sell real and personal property. Appellant Marguerite W. Ward claims this was erroneous and raises the following issues:

(1) Whether an administrator ad colligen-dum has the authority to administer the estate of a decedent; (2) whether an administrator ad colligendum has the authority to pay the debts of a decedent; (3) whether an administrator ad colligendum has the authority to disburse the personalty of a decedent; (4) whether an administrator ad colli-gendum has the authority to dispose of the realty of a decedent; (5) whether an administrator ad colligendum has the authority to sell the personalty of a decedent; (6) whether the judge appointing an administrator ad colligendum can expand the authority of a special administrator beyond the statutory authority fixed by law.

Appellee, Thomas F. Seale, who was appointed administrator ad colligendum, counters that appellant confuses the authority of a Special Administrator acting under an appointment by the Probate Court and a Special Administrator acting under the authority of a decree of the Circuit Court. He argues:

“ * * * The Judge of Probate is limited by statutory provisions. The Judge of a Circuit Court is specifically authorized by statutes in the exercise of such jurisdiction to use its discretion, and proceed according to its own rules and practice without regard to any statutory requirements provided for the administration of Estates in the Probate Court.”

The Special Administrator claims that Title 13, § 138, Code, 1940 (Recompiled, 1958), provides that in the circuit court the court may “proceed according to its own rules and practice, without regard to any of the statutory requirements provided for administration of estates in the probate court .” We agree that the circuit court is not circumscribed by all the statutory procedural rules, applicable in the probate court, but the quoted statute does not affect substantive law as established by statute and decision. Castleberry v. Hollingsworth, 215 Ala. 445, 111 So. 35 (1927). In short, Title 13, § 138, Code, 1940, does not change the substantive law of this state that an administrator ad colligendum is a mere agent, or officer of the court, to collect and preserve the goods of the deceased, until someone is clothed with authority to administer them. Arendale v. Johnson, 206 Ala. 245, 89 So. 603 (1921); Ex parte Garrison, 260 Ala. 379, 71 So.2d 33 (1954); Erwin, Adm'x v. Br. Bank at Mobile, 14 Ala. 307 (1848). Consequently, the judgment of the circuit court which authorized the administrator ad colligendum to exercise powers of administration is erroneous and is due to be reversed.

REVERSED AND REMANDED.

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


text:
    James D. THORN et al. v. REGAL DEVELOPMENT COMPANY, a partnership, et al.
    SC 1963.
    Supreme Court of Alabama.
    Feb. 11, 1977.

      John Martin Galese, Birmingham, for appellants.
    John F. DeBuys, Jr., Birmingham, for Regal Development Co.
    Jack H. Harrison and Richard L. Taylor, Birmingham, for Town of Hoover.
   SHORES, Justice.

Plaintiffs-appellants filed an action for declaratory judgment and injunctive relief against Regal Development Company and the Town of Hoover challenging the validity of an ordinance annexing certain property to the Town of Hoover, the validity of a zoning ordinance affecting that property, and the validity of a building permit issued by the Town of Hoover permitting the construction of apartments on the property. The last two actions by the Town of Hoover are conceded to be valid if the annexation ordinance is valid.

The trial court entered its order in favor of defendants-appellees. We affirm.

In 1968, the Town of Hoover adopted a comprehensive zoning ordinance. In November, 1971, Mitchell Joseph petitioned the Town of Hoover for the annexation of the property involved in this litigation. Annexation was sought pursuant to Act No. 32, First Special Session of Alabama 1964, approved August 24, 1964, page 54. That act provides that, when all of the property owners of property contiguous to the city limits shall file a petition asking that their property be annexed and the governing body of the city passes an ordinance assenting to the annexation of the property, the corporate limits of the city shall be rearranged to include such contiguous property. Section 4 of Act No. 32 provides, in pertinent part:

“The said petition shall be published one time in a newspaper of general circulation in the county together with a notice that on a day certain, but not less than 90 days from the date of such publication, the governing body of such municipality will consider the adoption of an ordinance annexing such territory to the municipality. . . . After the expiration of 90 days from the date of publication of said ordinance the territory shall become a part of the corporate area of such municipality and such action of the governing body of the municipality shall not be subject to attack or impeachment in any court after one year from the effective date of such ordinance.”

Mr. Joseph filed his petition for annexation of his property in November, 1971, and advised the attorney for the Town of Hoover that any documents necessary for annexation would be signed, provided the town rezoned the property for apartments. The attorney advised the mayor of Hoover that the Town of Hoover could not commit itself in advance of the annexation to rezone the property.

In January, 1972, the Town of Hoover passed a resolution ordering a public hearing to be held on April 17, 1972, to consider Mr. Joseph’s petition to annex his property. At that meeting, the town council informally agreed that the appropriate zoning of the subject property would be changed to R-3, multi-family. That resolution also provided that notice of the public hearing on the annexation petition be posted in three prominent places within the town. Thereafter, on April 17, 1972, the town council passed Ordinance No. 55 annexing the property pursuant to Act No. 32, supra, and this ordinance was posted in three prominent places within the town. This ordinance was filed with the Probate Judge of Jefferson County. Thereafter, on July 17, 1972, the town council adopted Ordinance No. 60-A which rezoned the property to R-3, multifamily.

In February, 1973, Mitchell Joseph and wife conveyed this property to Regal Development Company. Sometime in 1973, the Town of Hoover issued a building permit to Regal for a 60-unit condominium complex on the subject property. Some work was done at that time, but not completed. A plan for the present apartment complex was submitted to the town council and approved by it in December, 1975. Construction was commenced in 1976.

It was stipulated that none of the plaintiffs became residents of the Town of Hoover until after May, 1974. It was also stipulated that a majority of the plaintiffs, if not all of them, became aware that the property involved was zoned for apartments in 1973.

In its final order upholding the validity of the ordinance annexing this property to the Town of Hoover, the trial court found:

“3. . . . the Court finds that Plaintiffs have failed to meet the burden of proof of establishing the invalidity of the ordinance of Defendant, City (sic, Town) of Hoover, annexing the subject property into its boundaries. The said ordinance appears to be regular and valid on its face, and the Court hereby finds that there was insufficient evidence to establish any fatal defect in the procedure utilized by the Defendant, City (sic, Town) of Hoover, in effectuating the said annexation. The Court further finds that Plaintiffs had knowledge of the annexation of the subject property into the City (sic, Town) of Hoover within one year after its annexation. They failed to complain of any defect which might have existed in such proceedings within the said year. Under the provisions of Act 32 of the Legislature, such claim was barred after the passage of one year from the adoption of said ordinance.
“4. The court finds that Plaintiffs have failed to carry the burden of proof of establishing the invalidity of Ordinance 60-A adopted by Defendant City (sic, Town) of Hoover on July 17, 1972

The gist of the plaintiffs’-appellants’ argument is that the annexation ordinance was invalid because the Town of Hoover failed to follow the mandate of Act No. 32, supra, in that it did not publish the petition to annex in a newspaper of general circulation in the county and that, therefore, all subsequent acts are invalid. It is not disputed that the ordinance was passed by the town council and was published by posting in three prominent places within the Town of Hoover for five days. A careful reading of Act No. 32 will indicate that it provides that the petition is to be published in a newspaper. It does not require that the ordinance of annexation be published in that manner. Title 37, § 462(b), Code of Alabama Recompiled, 1973 Cumulative Supplement, provides:

“All ordinances of a general or permanent nature, except as hereinafter provided, shall be published in some newspaper of general circulation published in the municipality, but if no such newspaper is published in the municipality, such ordinances may be published by posting copies thereof in three public places within the municipality . . .”

It is not disputed that the ordinance annexing the subject property was published pursuant to this statute. It is further undisputed that the rezoning of the property was properly published in accordance with this statute.

The zoning ordinance is, therefore, valid on its face, and the trial court correctly held that the plaintiffs failed to carry the burden of proving its invalidity. Walls v. City of Guntersville, 253 Ala. 480, 45 So.2d 468 (1950).

Additionally, we agree with the trial court that these plaintiffs have waited too long to bring their challenge. Act No. 32 clearly states that the action of a municipality annexing property pursuant to that act “. . . shall not be subject to attack or impeachment in any court after one year from the effective date of such ordinance.” The annexation ordinance was passed on April 17,1972. The plaintiffs-appellants offer no explanation for delaying four years to question the validity of the action taken by the Town of Hoover. The trial court correctly held that Act No. 32 precludes an action questioning the validity of these ordinances, valid on their face, at this late date.

The judgment appealed from is affirmed.

AFFIRMED.

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


text:
    OPINION OF THE JUSTICES.
    No. 230.
    Supreme Court of Alabama.
    Feb. 23, 1977.
   To the Honorable Senate

State of Alabama

State Capitol

Montgomery, Alabama 36130

Gentlemen:

On February 15, 1977, we received your request for an advisory opinion relative to Senate Bills 195 and 196, a copy of which is attached.

Senate Bill 195 allows individuals to carry back, and carry forward net operating losses as deductions from gross income, while Bill 196 allows the same treatment of net operating losses to domestic and foreign corporations. In either instance — carry back or carry forward net operating loss— the taxable income of an individual and a corporation is affected, that is, decreased. This in turn decreases the income tax payable to the State of Alabama. Both bills, therefore, are bills to decrease revenue. And, revenue bills must originate in the House of Representatives. See Opinion of the Justices, 238 Ala. 289, 190 So. 824.

We are of the opinion that Senate Bills 195 and 196 violate § 70, Constitution 1901.

Because these bills are revenue bills and must, under § 70 of the Constitution, originate in the House of Representatives, we pretermit discussion of whether they violate § 100. They would have to pass constitutional muster under § 70 before consideration of § 100.

Respectfully submitted,

C. C. TORBERT, Jr., Chief Justice

JAMES N. BLOODWORTH

HUGH MADDOX

JAMES H. FAULKNER

RENEAU P. ALMON

JANIE L. SHORES

ERIC EMBRY

SAMUEL A. BEATTY

Justices.


author: BRADLEY, Judge.

text:
    Dr. Bobby C. MERKLE v. Melvin G. ARMSTRONG, suing by and through Robert Lee Armstrong, his father and next of friend.
    Civ. 951.
    Court of Civil Appeals of Alabama.
    Dec. 22, 1976.
    Rehearing Denied Jan. 26, 1977.

      Hubbard H. Harvey, Demopolis, for appellant.
    Henry Sanders, of Chestnut, Sanders & Sanders, Selma, for appellee.
   BRADLEY, Judge.

This appeal is from an order of the Circuit Court of Perry County granting a motion for a new trial.

The action was commenced when Melvin C. Armstrong, a minor, suing by and through his father as next friend, filed a three count complaint alleging that the defendant, Dr. Bobby C. Merkle, was guilty of negligence, assault and battery, and wanton conduct as a result of removing three stitches from Armstrong’s left wrist within a few minutes after placing them there to stop the bleeding from a cut. The defendant pleaded not guilty. Judgment was entered on a jury verdict in favor of the plaintiff and an award of twenty dollars as damages. The plaintiff then asked for a new trial on the premise that the award was inadequate and contrary to the evidence. The motion was granted; this appeal if from that order.

In view of another trial, we will not set out the evidence. Kennedy v. General Transport Company, 293 Ala. 455, 304 So.2d 896 (1974).

The sole issue for review here is the validity of the trial court’s order granting a new trial.

The order did not state the reasons for the court’s judgment, but the motion for new trial was grounded on the theory that the verdict was contrary to the evidence and the jury award was inadequate.

In Smith v. Winkles, 49 Ala.App. 454, 273 So.2d 215 (1973), we said:

“Upon hearing, the motion for new trial of plaintiff was granted. The ground for granting the motion was not stated by the court. This Court, for the purpose of this appeal will presume that the trial court granted the new trial on the ground of inadequacy of damages. This presumption follows because had the court not granted the motion, plaintiff having received judgment below could not have presented for review any ruling of the trial court not affecting the amount of damages recovered. Anderson v. Kemp, 279 Ala. 321, 184 So.2d 832; King v. Sturgis, 45 Ala.App. 553, 233 So.2d 495. To put the proposition more succinctly, it is only errors which affect the amount of damages recoverable that may be complained of on appeal by an appellant who was the winner of the judgment in the court below. Randle v. B’ham Ry. Light & Power Co., 169 Ala. 314, 53 So. 918; Austin v. Tennessee Biscuit Co., 255 Ala. 573, 52 So.2d 190, and cases cited therein.”

Likewise, in the case at bar, we will presume that the trial court granted the new trial on the ground of inadequate damages.

In deciding whether the trial court erred in granting the new trial because of the inadequate damages we are guided by those principles of law set out in Smith v. Winkles, supra, as follows:

“The basic law to be applied by a trial court in considering the setting aside of a jury verdict for excessive or inadequate damages was stated in the case of Montgomery Light & Traction Co. v. King, 187 Ala. 619, 65 So. 998, as follows: ‘In a case like this a trial court is by the law— which protects and provides for trials by jury — invested with no right to set aside such a verdict upon the ground of exces-siveness or inadequacy alone unless the amount allowed by the verdict is so excessive or inadequate as to plainly indicate that the verdict was produced “by passion or prejudice or improper motive.” ’
“This basic principle was quoted and discussed in the case of Yarbrough v. Mallory, 225 Ala. 579, 144 So. 447, which case was recently quoted from extensively by the opinion of this Court in the case of King v. Sturgis, 45 Ala.App. 553, 233 So.2d 495.
“Since it is contrary to law to invade the deliberations of the jury to find what motive or influence affected its verdict, it is necessary to consider the record and the verdict itself in determining if a gross injustice has occurred. It was said in Yarbrough v. Mallory, supra, ‘The internal evidence, the verdict itself, in the light of the facts clearly disclosed by the evidence, usually furnishes the determining data.’
“It appears thus that the question presented to the trial court on a motion for new trial based solely upon the ground of inadequate or excessive damages awarded by the jury, in the absence of an affirmative showing in the record of the presence of improper motive or influence on the jury, is — Is the verdict so opposed to the clear and convincing weight of the evidence as to injury and damage as to clearly fail to do substantial justice? In the case of inadequacy, does the verdict fail to give substantial compensation for substantial injuries?
“Fully adhering to a belief in the constitutional right of trial by jury and fully accepting the presumptive correctness of a jury verdict, we believe that such right and presumption remains subject to the powers and duty of the trial judge to set the verdict aside and submit the case to another jury in order to prevent an evident and substantial injustice, either to plaintiff or defendant.
“As was stated in Yarbrough v. Mallory, supra, we adhere to the view expressed in the case of B’ham News Co. v. Lester, 222 Ala. 503, 133 So. 270, as follows:
“ ‘. . . That the credibility of witnesses is involved, that opinion evidence of value, not conclusive upon the trier of fact, is to be considered, and that there is no yardstick to measure the damages for physical pain and suffering, does not withdraw the case from the supervisory power of the trial court over the verdicts of juries. In all these matters he is in like position with the jury, and clothed with the power and duty to relieve against verdicts, which, allowing all reasonable presumptions in their favor, are still found to be clearly wrong and unjust from any cause, whether by reason of passion and bias, or from mistake, inadvertence, or failure to comprehend and appreciate the issues. . . .’
“In reviewing the action of the trial court in exercising the power and discretion of granting a new trial as discussed herein, we do so with the presumption that such power and discretion was properly exercised. McLemore v. International Union, 264 Ala. 538, 88 So.2d 170. In order to remove such presumption the evidence must ‘plainly and palpably’ support the verdict. Lee v. Moore, supra [282 Ala. 461, 213 So.2d 197]; Ala. Power Co. v. Bell, 274 Ala. 590, 150 So.2d 754.”

After carefully reviewing the record in the case at bar, we cannot say that the evidence presented to the trial court plainly and palpably shows that the trial court was in error in granting the motion for new trial. In view of the evidence in this case we must presume that the trial court viewed the evidence impartially and came to the conclusion that the verdict was unjust in the light of the evidence and that it was its duty to grant a new trial. We therefore affirm the order of the trial court granting a new trial.

AFFIRMED.

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


author: PER CURIAM.

text:
    Ex parte Dr. Bobby C. MERKLE.
    SC 2361.
    Supreme Court of Alabama.
    March 4, 1977.
   PER CURIAM.

Writ denied.

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


text:
    JABCO, INC., a corporation v. Harold J. KELLY and Mary Jo Kelly.
    Civ. 986.
    Court of Civil Appeals of Alabama.
    Feb. 16, 1977.
    Murray W. Beasley, Tuscumbia, for appellant.
    Robert 0. Cox, Florence, for appellees.
   BRADLEY, Judge.

From a judgment against plaintiff on plaintiff’s complaint and in favor of defendant on defendant’s counterclaim against plaintiff for $1,850, plaintiff appeals. We affirm.

Jabeo, Inc., a corporation, filed a complaint in the Circuit Court of Colbert County against Harold J. Kelly and Mary Jo Kelly alleging that they were indebted to Jabeo in the amount of $5,010 for labor and materials furnished in the construction of a swimming pool. Mary Jo Kelly was stricken as a party-defendant and Harold J. Kelly filed an answer denying that he was indebted to Jabeo in any amount. Kelly also filed a counterclaim seeking damages due to the failure of Jabeo to construct a swimming pool on his property in a good and workmanlike manner as previously agreed. After a trial before the court, sitting without a jury, a judgment was rendered against. Jabeo on its complaint and in favor of Kelly on his counterclaim for $1,850. Jabeo appeals from this decree.

Jabeo presents the question for review by this court as follows: “Did the [trial] Court err in finding for the defendants and against the plaintiff on the counterclaim of the defendants and awarding to the defendants the sum of $1850.00?” In effect Jab-co’s contention is that the evidence is insufficient to support the trial court’s judgment in favor of Kelly on his counterclaim.

The applicable rule where a trial court sits without a jury is that the trial court’s judgment will be affirmed if there is any evidence to sustain its judgment. Dan-ley v. Marshall Lumber & Mill Co., 277 Ala. 551, 173 So.2d 94 (1965); Hover v. Kirk, 56 Ala.App. 257, 321 So.2d 214 (1975). Here there is ample evidence to support the trial court’s judgment.

The record shows that a written contract was entered into in 1972 between Jabeo and Kelly for Jabeo to construct a swimming pool forty feet in length and twenty feet in width on property belonging to Kelly. Kelly was to pay $8,350 for this work as follows: ten percent upon signing the contract, sixty percent upon completion of the vertical walls, twenty-five percent upon placing of coping, and the balance when the pool was placed in operation. Kelly signed the contract, paid $850, and construction began on June 19, 1972. On June 28 Jabeo sent Kelly a bill for $5,010, claiming that the vertical walls had been completed and therefore, according to the contract, sixty percent of the pool was completed. Kelly refused to pay the' bill on the ground that the walls had not been completed in a good and workmanlike manner as provided in the contract.

On the very day that Jabeo submitted its bill to Kelly for the $5,010, its workmen were attempting to repair a hole in the ten-inch thick west wall caused by the failure of the concrete to settle properly around a light fixture. An architect and engineer employed by Kelly after he received the bill to advise him about the completeness of this portion of the agreement testified that the walls had not been constructed in a good and workmanlike manner and that the west wall should be torn out and repoured. Other repairs were recommended.

Jabeo removed and replaced the west wall. After this work was completed, Jab-eo did no further work and sent no other bills to Kelly. Kelly then requested Jabeo to complete the pool as originally agreed upon and stated payment would be made when work resumed. Jabeo commenced work on August 14, 1972.

When the workers returned to the job-site, they discovered the pool had floated. Due to excess ground water around the pool and the absence of water in the pool to hold it in place, the pool rose about six inches on the deep end, leaving a void beneath that end. Jabeo informed Kelly that the pool had floated but undertook to remedy the situation without authorization from Kelly. The repair consisted of punching several holes in the bottom of the concrete pool through which concrete would be gravity fed into the voids under the pool. Upon seeing the holes in the bottom of the pool, Kelly stopped the work on the pool before the concrete was placed in the holes and sought an explanation from Jabeo. Kelly contended that the repairs were not being correctly made, that due to faulty construction methods Jabeo had allowed the pool to float, and that the proposed repairs would not permit the construction of a pool in accordance with prior plans and specifications.

The engineer and another pool builder testified that the gravity feed method of placing concrete in the voids under the pool would not satisfactorily correct the floating. Also the engineer, who inspected the pool shortly after it floated, stated that the relief plug in the bottom of the pool was either stopped up with concrete or did not function properly. The relief plug is an opening in the bottom of the pool designed to admit ground water into the pool so as to eliminate the buildup of hydrostatic pressure caused by water collecting in and around the pool shell during construction. Had the relief plug functioned properly, the pool would not have floated.

The president of Jabeo admitted that any repairs made on the floated pool would not place the pool back in the same elevation as previously agreed upon in the contract. A vice president of Jabeo said that the proposed repairs would leave the pool several inches deeper on the shallow end, necessitating a change in the landscaping around the pool. The architect testified that the only way to place the pool in the same elevation as contracted for would be to tear it out and start over. Another witness for Kelly, also a swimming pool builder, said that it would cost approximately $2,000 to take out the concrete which had been poured and clean the excavation out so that new forms for the walls could be placed in the hole.

We conclude that there was ample evidence to support the trial court’s judgment, and therefore affirm.

AFFIRMED.

WRIGHT, P. J„ and HOLMES, J., concur.


author: WRIGHT, Presiding Judge.

text:
    Joyce R. CREEL v. Joseph David CREEL.
    Civ. 1035.
    Court of Civil Appeals of Alabama.
    Feb. 16, 1977.

      Louis W. Scholl, Birmingham, for appellant.
    Alvin B. Foshee, Clanton, for appellee.
   WRIGHT, Presiding Judge.

This is an appeal from the judgment in a divorce action.

The issues are (1) whether the court should have effected a property settlement though not specifically requested, and (2) is the award of alimony an abuse of direction?

The parties after 28 years of marriage and rearing four children to adulthood find themselves incompatible. The husband earns a salary of over $35,000 per year. In 1973, he purchased in his own name a 250-acre farm in Chilton County for $80,000. He paid $30,000 in cash and granted a $50,-000 mortgage for the balance. The monthly payments on the mortgage are slightly over $400 per month. In 1975, the husband purchased an adjoining 41-acre tract for $21,000, taking title jointly with his wife. There was $3,000 paid and a mortgage given for $18,525 payable $156 per month for some 18 years. The wife sells real estate and had earned slightly over $1,000 up to July 1976. The husband had purchased equipment for the farm and a house trailer. He had 11 head of cattle on the farm. His monthly payments on farm, car, equipment, trailer and loans totaled approximately $1,100. The parties jointly own 136 shares of AT&T stock of the approximate market value of $8,000.

The husband is college educated with a master’s degree in engineering. He is employed with a utility company in an executive position. The wife has a high school education and has only worked in a bank on two short occasions during the 28 years of the marriage. She has no regular employment income.

There is no evidence as to the reason these parties became irreconcilably •incompatible after 28 years of marriage. There is no evidence of any fault of the .wife. The trial court granted her alimony of $450 per month. The wife is required to pay federal income tax on this amount, while the husband may deduct it from his federal income tax. In view of the standard of living to which she had become accustomed as the wife and homemaker for an executive making $37,000 to $38,000 per year, and in view of the absence of any indication that she has even a home to live in, this court considers such award of alimony insufficient and unjust under the stipulation of fact. According to the record, the information received by the trial court as to the respective assets of the parties came entirely from a stipulation. Therefore, the presumption of correctness upon review granted to a trial court judgment after oral hearing is not available in this ease. This court is as able to weigh the facts of the stipulation as was the court below. Perdue v. Roberts, 294 Ala. 194, 314 So.2d 280 (1975).

It is the judgment of this court that the award of periodic alimony should be and is directed to be increased to $600 per month.

It is an axiom that having assumed jurisdiction a court of equity will settle all the equities between the parties. Morrison v. Morrison, 47 Ala.App. 142, 251 So.2d 761, cert. denied, 287 Ala. 343, 251 So.2d 764 (1971). A court of equity delights in rendering full justice. Therefore, we consider that though not specifically requested, the trial court should have, at least upon rehearing, effected a property settlement between the parties. Rule 15(b) ARCP eliminates the necessity of strict pleading of issues tried expressly or with the implied consent of the parties.

We have previously said that in the last three to four years, the husband has purchased 291 acres of expensive Chilton County farm land. Of this 250 acres were purchased at $320 per acre and 41 acres at $525 per acre. Though cash in the amount of $30,000 apparently accumulated in the marriage, was paid down on the larger tract, title thereto was taken solely in the name of the husband. The wife had joint title only in the 41-acre tract in which there is equity of some $3,500. To permit the marriage to be ended and all the marital interest of the wife to be terminated without any recompense for 28 years’ participation appears grossly unfair and unjust. To say that her interest, whatever it is, in the 41 acres remains for future distribution is insufficient. The husband could allow that interest to be lost merely by not making the payments. If that were not so, the continued existence of a joint interest for which the husband is paying can only produce further problems and probable court action for division.

There is the further problem of joint ownership of the AT&T stock. This stock is presently pledged as security to husband’s credit union for a loan. This court is aware of future problems which all too commonly occur when a marriage is ended but joint property interests are not. We have no desire to usurp the authority of the trial court to consider and determine the rights of litigants before it. However, the matter is now before us in the same attitude as it was before the trial court. We find the trial court erred in not settling all issues between the parties. We therefore direct that as a property settlement the wife be granted either full title to all of the 136 shares of AT&T stock or that she be paid by the husband its present market value in cash, whichever she chooses. For her interest in the 41-acre tract, husband is directed to pay to the wife one-half the $3,000 originally paid down.

We have not considered a lot owned by the husband and a house and lot given to the wife by a sister in Mississippi. Neither of these properties were gained through efforts of the parties but were gifts or inheritances from their respective families.

For the reasons stated, the cause is reversed except as to the granting of a divorce and is remanded to the trial court with direction to enter a judgment in accord with this opinion.

Appellant is awarded $500 as a reasonable attorney fee for prosecuting this appeal.

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

BRADLEY and HOLMES, JJ., concur.


text:
    Amelia A. SKIPPER v. Marion L. SKIPPER.
    Civ. 1042.
    Court of Civil Appeals of Alabama.
    Feb. 16, 1977.

      C. Lenoir Thompson, Bay Minette, for appellant.
    Norborne C. Stone, Jr., Bay Minette, for appellee.
   BRADLEY, Judge.

On June 28, 1976 appellant, Amelia A. Skipper, filed a petition in the Baldwin County Circuit Court asking that appellee, her former husband, be required to show cause why he should not be cited for contempt for failure to maintain $50 per week child support payments and for wilfully endangering the lives of their two children by permitting them to travel in a motor vehicle driven by an unlicensed fifteen year old boy and by allowing the children to go swimming without adult supervision. On this same day the court ordered the father to appear before it on July 16,1976 to show cause why he should not be punished for contempt.

On September 7, 1976, the date ultimately set for the hearing of the show cause order, the father’s attorney served a copy of the father’s answer to the show cause order and a petition for modification of the child custody decree on the mother’s attorney. That same day a hearing was held on the show cause order and the modification petition over the mother’s objection to trying the modification petition. After the hearing the court ordered the father to pay $380 to the register of the court as back child support and awarded custody of the two children to the father upon his payment of the $380. Specified visitation periods were allotted to the mother.

The issues presented by the mother in brief are: (1) the trial court erred in considering and awarding child custody during a hearing for contempt due to arrearage in child support payments, and (2) the evidence does not support a finding of changed circumstances which would authorize a change in custody of the children from the mother to the father.

As to the mother’s first issue, the father points out, and rightly so, that appellant did not argue this issue in her brief. Assignments of error under the old rules, or issues not argued in brief under the new rules, are deemed waived. Winn-Dixie Montgomery, Inc. v. Holt, 57 Ala.App. 499, 329 So.2d 556 (1976).

The mother’s second issue, and the only one argued in brief, is that the evidence is insufficient to prove changed circumstances of the parties so as to justify a change in the custody of the children.

The evidence shows that the father has remarried and is living in a large three-bedroom house on forty acres of land. He and his new wife both work and are able, both financially and otherwise, to properly care for the two children, who are now nine and seven years old. The father testified that he loves the children and they love him and want to live with him. On the other hand, the mother works for Bay Slacks in Bay Minette and commutes to her home between Flomaton and Brewton. Her present husband has been out of work for several months and they live in a “tin-top shack.”

The record reveals that the trial court had made repeated efforts to obtain a report from the Escambia County Department of Pensions and Security on the home situation of the mother and had been unable to do so for the asserted reason that no one was ever home when agents of the Pensions and Security Department called on the mother. There is no objection or other comment in the record from either party directed to the court’s effort to obtain and use the results of a Pensions and Security Department investigation of the mother’s fitness to keep her children.

The record also reflects that the trial judge talked to the children in question “three or four times.” However, there is no transcript of these interviews in the record. Furthermore, no objection was voiced by either party to the interviews with the children by the judge.

In its decree the trial court based its modification of the prior custody decree by transferring custody of the children from the mother to the father on the pleadings, evidence submitted at the hearing, interviews with the children, and “having had this matter thoroughly investigated.”

We said in Cordell v. Poteete, 57 Ala.App. 645, 331 So.2d 400 (1976):

“. . . Where the trial court had the benefit of evidence not included in the record, and such evidence may have influenced the trial court’s decision, the unrecorded evidence is conclusively presumed to support the finding, which therefore cannot be disturbed on appeal

In the case at bar, the record reflects that the trial judge talked to the children several times. These conversations not being a part of the record, we cannot know their substance or their effect on the trial court. Furthermore the record discloses that the trial court had “the matter thoroughly investigated.” Again we cannot assess the effect of this evidence on the trial court since it is not a part of the record before us.

In the posture of the case before us, and in keeping with the above cited rule, we cannot disturb the judgment of the trial court on this appeal. We affirm.

AFFIRMED.

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