author: PER CURIAM. MADDOX, Justice FAULKNER, Justice BEATTY, Justice

text:
    ELLWEST STEREO THEATRES, INC., a corporation v. STATE of Alabama ex rel. James C. PARSONS et al.
    77-354.
    Supreme Court of Alabama.
    March 23, 1979.
    Rehearing Denied May 4, 1979.
    Ferris S. Ritchey, Jr., Birmingham, Neil E. Ayervais, Arthur M. Schwartz, Denver, Colo., for appellant.
    Charles T. Bradshaw, and Charles H. Wyatt, Jr., Asst. City Attys., Birmingham, for appellees.
   PER CURIAM.

This Court has recently addressed the application of the Alabama Red Light Abatement Act, Code 1975, §§ 6-5-140 et seq., to the exhibition of obscene movies. Trans-Lux Corp. v. State ex rel. Sweeton, 366 So.2d 710 (Ala.1979). The views of the justices are stated therein.

This cause, however, is different. It deals with proscribed specific conduct on the part of employees and customers of the appellant-defendant, Ellwest Stereo Thea-tres, Inc. After a hearing, the trial judge found, viz:

“4. The evidence presented in this cause on behalf of the plaintiffs consisted of the testimony of ten police officers of the City of Birmingham, including the plaintiff, James C. Parsons, the Chief of Police of said City. Each of the ten witnesses for the plaintiff gave testimony on the general reputation of the defendant’s premises situated at 1727 Third Avenue North, Birmingham, Alabama. The Court finds from this testimony that the general reputation of the Ellwest Stereo Theatre, Inc., in the community is bad and that, further, it has a reputation as a place where homosexuals congregate and engage in lewd conduct. In addition to the testimony going to the reputation of the defendant’s premises, a number of police officers testified to witnessing various incidents which occurred within the subject premises. One of these incidents involved two male customers who were observed in the act of fellatio within one of the booths in the premises. The door to the booth was opened to public view at the time. In another incident, an undercover vice officer was solicited by a male customer to perform an unnatural sex act. This customer had entered the officer’s booth uninvited and exposed his private parts and began masturbating. One officer testified that on another occasion as he was making a routine inspection of the premises, he observed a male customer masturbating within one of the booths with the door thereof left open. Other officers testified to various acts of lewdness, including completely nude female employees of defendant on a stage adjacent to viewer booths. These females fondled their breasts and genitals as they performed and on several occasions engaged in masturbation during the course of the performance. These performances were described variously as vulgar, lewd and seductive by plaintiff’s witnesses who observed them. One undercover vice officer was offered sexual intercourse for a monetary consideration by one of the female employees who, at the time of the offer, was completely nude.”

We agree with the trial judge that these “acts and conduct,” in and of themselves, “were acts of lewdness, prostitution and assignation within the definition and meaning of Section 6-5-140 et seq. of the Code of Alabama, 1975, said code sections being known collectively as the Alabama Red Light Abatement Act.” Thus, we agree that the trial court properly found that the use of the premises constituted a “public nuisance” under that Act and the premises were subject to being enjoined and padlocked. To hold otherwise would thwart the purposes to be served by the Alabama Red Light Abatement Act.

Whether appellant Ellwest’s contention is correct that “general reputation” cannot be proved by reputation among police officers we need not determine because we find that evidence of such reputation was not necessary to be shown in order to reach the trial judge’s conclusion as to “lewdness.” The record amply supports his conclusion without reference to “general reputation.”

Neither do we agree with appellant Ellwest that the injunction was “over-broad.” As we read the court’s injunction, it only enjoins the defendant from “further maintaining and continuing the nuisance found to exist at said premises.” In other words, as we see it, the injunction does not prohibit the defendant from using the premises for a legitimate purpose. In furtherance of this view, we note that although the trial court ordered the premises to be padlocked “pending further orders of this Court,” the appellant Ellwest was permitted to remove its personal property from the premises and the court specifically “retains jurisdiction of this matter for the purpose of rendering whatever orders future events may necessitate.” This would indicate to us that, upon proper application by appellant Ellwest, the padlock order might be lifted to enable Ellwest to use the property for a legitimate purpose.

We note that the injunction here is not as broad as the one issued and upheld in People ex rel. Hicks v. “Sarong Gals”, 42 Cal.App.3d 556, 117 Cal.Rptr. 24 (1974), where the judge closed the premises to all uses for one year, except for uses not involving entertainment or use of an alcoholic beverage license.

It is thus that we must conclude that the trial judge’s judgment granting a padlock order and enjoining a nuisance on the premises should be affirmed.

AFFIRMED.

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

MADDOX, J., concurs specially.

TORBERT, C. J., and FAULKNER, JONES and BEATTY, JJ., dissent.

MADDOX, Justice

(concurring specially).

I concur in the opinion; however, I desire to express my views on whether the reputation evidence could be considered by the trial judge. I agree with the statement that the trial judge’s decree can be sustained without considering the evidence concerning “general reputation” given by police officers, and I suggest that, in Sarong Gals, the California court treated the question regarding reputation evidence, forthrightly and correctly:

“Appellants further argue that no evidence was presented to support the court’s finding that ‘[t]he common fame and general reputation of the “Sarong Gals” is that it is a place kept [,] conducted and maintained for the purpose of lewdness and the common fame and general reputation of the occupants thereof and frequenters thereto is that of lewd persons.’ Although no testimony was presented at the trial as to the common fame and reputation of the Sarong Gals, the trial court could infer from the series of affidavits of the officers relating the activities taking place at the Sarong Gals over a period of months that by common fame and reputation the Sarong Gals is a place maintained for the purpose of lewdness and the occupants and frequenters thereof are lewd persons. Such a showing, however, was not necessary to the judgment. The statute, by its terms, only requires that lewd acts occur on the premises. While the common fame and reputation of the premises may be circumstantial evidence that such acts have occurred, such a showing is not necessary where, as here, numerous specific acts have been documented.”

Ellwest’s contention that the conduct described in the majority opinion constitutes the exercise of a right of free speech is absurd. To equate the “free and robust exchange of ideas and political debate with commercial exploitation of obscene material demeans the grand conception of the First Amendment and its high purposes in the historic struggle for freedom.” Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973).

FAULKNER, Justice

(dissenting).

The majority opinion holds that the defendant’s business was properly determined to be a “public nuisance” within the meaning of the Red Light Abatement Act and as such could be enjoined and padlocked. In doing so the majority has completely ignored the severe impairment of the defendant’s First Amendment rights and has avoided any consideration of repeated errors in the trial of this case which, absent any violation of the First Amendment, would, in my opinion, necessitate a new trial. Consequently, I am compelled to dissent. Since the majority has chosen not to detail the facts of this case, I consider it appropriate to include them here.

Plaintiffs City of Birmingham and Police Chief Parsons brought suit on November 15, 1977, alleging that defendant maintained a theatre at 1727 Third Ave. North featuring sex related adult movies and nude or semi-nude female dancing, all for a monetary consideration. Plaintiffs alleged that the business had become a nuisance within the meaning bf § 6-5-140 and was a place where “lewdness, assignation and prostitution is conducted, permitted and allowed to exist.” They further alleged that in three years police had made approximately 300 arrests for sex related offenses at defendant’s business on Fourth Ave. North and Third Ave. North. Plaintiffs sought a declaration that the business was a nuisance and temporary and permanent' injunctions restraining the nuisance.

Defendant Ellwest Stereo Theatres had opened an “adult entertainment theatre” at 1727 Third Ave. North, Birmingham, in April, 1977, having closed its previous operation on Fourth Ave. North. Testimony at trial was restricted to the Third Ave. North address, a ruling plaintiffs did not appeal. Ellwest featured private locking booths designed to accommodate couples. Customers could enter the booths, deposit quarters in a slot, and watch a private showing of adult movies. The theatre manager testified that house rules (not posted) prohibited two males from utilizing a booth at the same time and if two males were observed entering a booth or discovered together in a booth the manager would ask them to leave. The parties agreed that minors were not allowed in the establishment and no alcohol was served.

Over a seven month period five arrests of customers had been made in these movie booths and were testified to at trial. On three separate occasions (May, September, and November) police arrested male customers who entered a booth occupied by an officer and masturbated in his presence. The individual arrested in May also solicited fellatio from the arresting officer. On two other instances police entered booths and arrested male customers engaged in fellatio. Police officers testified that they never registered complaints with the management. Their testimony, which fell far short of the 300 arrests alleged, also revealed that other businesses were the sites of significantly more numerous arrests for homosexual offenses.

In the fall, 1977, defendant added a live dance show utilizing the same booth principle. Customers would enter a booth, deposit quarters, and a blind would withdraw to reveal a woman dancing. Viewers could communicate with the dancer through an intercom system. On approximately six occasions arrests were made of dancers clothed only in bikini panties. They were variously described at trial as fondling and licking their own breasts, and one individual was observed masturbating. On four occasions dancers were observed totally nude, although only two incidents resulted in arrests. One of these arrests involved a nude dancer observed masturbating. One of the nude dancers not arrested also solicited a vice officer, although the incident was not reported until trial. In fact, no arrests for prostitution were made at defendant’s business. Most of the arrests of dancers were made from November 3-12 and resulted in charges of dancing without a permit and, occasionally, indecent exposure. The dance operation ceased on November 12 and was not resumed.

A hearing on plaintiffs’ motion for a temporary restraining order was held on November 22 at which defendant asserted that any nuisance had been abated and the requested relief would constitute an absolute prior restraint on activity presumptively protected by the First Amendment of the United States Constitution (i. e., the showing of films). Plaintiffs’ request for injunc-tive relief was continued to a final ■ trial date in February, 1978. At trial plaintiffs’ ten witnesses, all police officers associated in some way with the vice squad, detailed the “entertainment” and arrests of customers and employees. In addition, nine of these witnesses were allowed to testify that the general reputation of defendant’s business in the community for lewdness was bad, although several of them could not define lewdness (or defined it improperly) and a number of them revealed that their assessment was based on their work with the vice squad.

The trial court entered a final decree finding that “a nuisance within the meaning of Section 6-5-140 et seq. exists at defendant’s premises . [and] that the basis of such nuisance is the lewd and immoral conduct on the part of the employees and customers which defendant has conducted and permitted in the subject premises.” The trial court found that the activity complained of was pure “conduct” and stated in reference to films shown that “claimed incidental First Amendment rights cannot be used as an impenetrable shield to .protect lewd and immoral conduct and to effectively deprive the State of the means of safeguarding the health, safety and morals of its citizens.” The final decree enjoined the nuisance (at the premises and anywhere else in Jefferson County) and ordered the premises padlocked.

The majority opinion states, “[A]s we see it, the injunction does not prohibit the defendant from using the premises for a legitimate purpose.” Such a statement wholly overlooks the padlock provision of the trial court’s order which does in fact prohibit the use of the premises for any purpose whatsoever. Thus the order here is broader than that upheld by the California Court of Appeals in People ex rel. Hicks v. “Sarong Gals”, 42 Cal.App.3d 556, 117 Cal.Rptr. 24 (1974), contrary to what the majority of the Court has indicated.

Furthermore, the order in the present case, and the majority’s approval of that order, shows utter disregard for the dangers of prior restraint on appellant’s presumptively protected speech activities. Testimony at trial clearly indicated that the primary purpose of appellant’s theatre was the showing of films. I cannot, therefore, agree with the trial court’s description of appellant’s films, his primary business, as “incidental First Amendment rights.”

It is now well established that our Red Light Abatement Act, § 6-5-140 et seq., Code 1975, may be used to restrain the showing of a film found to be obscene under the provisions of that Act as construed by this Court. Trans-Lux Corp. v. State ex rel. Sweeton (S.C.1979) 366 So.2d 710 (Sweeton II); General Corp. v. State ex rel. Sweeton, 294 Ala. 657, 320 So.2d 668 (1975) (Sweeton I). In Sweeton I we indicated that the Red Light Abatement Act might be successfully used “where the impact of the injunction is absolutely devoid of prior restraint or chilling effect upon prospective exercises of expression other than that adjudicated as obscene.” Sweeton I at 666, 320 So.2d at 676. (Emphasis added.) Sweeton II is an example of the proper application of the statute in light of this principle. But the order in this case is an example par excellence of prior restraint of presumptively protected expression. While it may well be that the films shown by defendant could be themselves enjoined under the procedures of the Red Light Abatement Act, no attempt was made to do so. Until the particular films shown are determined to be obscene they cannot be restrained by the broad sweep of an injunction such as the one granted in this case. Of course, the practical effect of this necessary deference to First Amendment rights is to leave little, if any, room for operation of the padlock order provided for in § 6-5-151 when a movie theatre is involved. It should be remembered, however, that this State has other statutes in force which were specifically designed to deter and eliminate the showing of obscene movies while preserving the legitimate exercise of First Amendment rights. (See e. g. §§ 13-7-160, et seq.; 13-7-180, et seq.; 13-7-190, et seq.; 13-7-210, et seq., and 13-7-230, et seq.) Consequently, to curtail the operation of the padlock provision of the Red Light Abatement Act, or even to eliminate it altogether, does not make a serious dent in the State’s arsenal of weapons against pornography. Even under the Red Light Abatement Act a properly drawn order could enjoin the defendant from permitting or conducting on the premises activities found to be lewd, with violation of such an order punishable as contempt under § 6-5-154. The broad order in this case, however, should not be allowed to stand as it acts as an impermissible prior restraint on appellant’s activities presumptively protected by the First Amendment.

I must also take issue with the trial court’s finding that the evidence presented to it could support an injunction directed against the dance operation and homosexual activity occurring on the premises. In this regard the trial court made a finding that “the acts and conduct which occurred on the subject premises were acts of lewdness, prostitution and assignation within the definition and meaning of Section 6-5-140 . . . ” First I note that testimony revealed only one incident of solicitation for prostitution. No arrest was made, nor was the occurrence reported until time of trial. Obviously, one incident of solicitation is hardly enough to support a finding of a nuisance, so any finding that prostitution as contemplated by the Red Light Abatement Act was conducted or permitted on the premises is clearly erroneous. There was, however, testimony detailing a variety of acts (specifically, masturbation and fellatio) which could be properly termed obscene or lewd and therefore within the scope of the Red Light Abatement Act. (It should, of course, be kept in mind that the dancing ceased long before any injunctive relief was granted.)

In proving obscenity or lewdness the best evidence, in my opinion, is a factual description of the acts themselves, just as a film or publication is the best evidence of what it represents. Paris Adult Theatre I v. Slaton, 413 U.S. 49, 93 S.Ct. 2628, 37 L.Ed.2d 446 (1973). Nevertheless, the trial court also allowed testimony regarding the general reputation of defendant’s theatre, as is permissible under § 6-5-149(b). In doing so I believe it committed several errors which should not be ignored. While the majority avoids this issue by finding that the error, if any, was harmless, I believe that the cumulative effect of this improper testimony necessitates a new trial.

The plaintiffs’ case consisted of the testimony of ten witnesses, all associated in some way with the Birmingham Police Department, and more particularly, the vice squad. Basically, these witnesses, after detailing their experiences at Ellwest, were allowed to testify that the general reputation of the Ellwest Stereo Theatre for lewdness was bad.

At the outset I observe that the trial court seemingly misunderstood the concept of general reputation evidence. This is apparent from exchanges which occurred during the testimony of Willie James Hurt, an employee of Ellwest. On direct examination counsel for defendant questioned Hurt about the general reputation of Ellwest for homosexuality. An objection to the question was sustained at which time the trial court stated to co-counsel for the defendant:

“I am going to allow the testimony, as I just stated, relative to reputation. But to pinpoint the proposition based on hearsay evidence which it’s bound to be, and it’s not an opinion at all. He just asked a question that called for hearsay testimony. ... I will allow this witness to testify as to his opinion, based upon his statements he’s made, his qualifying statements as to whether or not the reputation in the community is good or bad.”

From these statements it appears that the trial judge felt that there were hearsay problems with Hurt’s testimony, when in fact hearsay is the gist of reputation evidence.

A noted authority on the law of evidence in Alabama has defined “general reputation” as follows:

“It frequently is said that the general reputation of a person is what is said of him by those among whom he dwells or with whom he is chiefly conversant, even though there may not be unanimity of opinion among them concerning him. The good general reputation of a person, however, may arise from the absence of derogatory reports concerning him. Such is generally termed negative evidence of general reputation.
“Testimony of a person’s general reputation is opinion-hearsay evidence. Such testimony, in essence, is the witness’ opinion as to what the general opinion of the community is concerning such other person based on what the witness has heard or on what he has not heard.” C. Gamble, McElroy’s Alabama Evidence § 26.-02(3) (3d ed. 1977), citing Glover v. State, 200 Ala. 384, 76 So. 300 (1917).

Accord, E. Cleary, McCormick’s Handbook of the Law of Evidence § 249, at 595 (2d ed. 1972); 5 Wigmore, Evidence § 1609 (Chad-bourne Rev. 1970). “General character or reputation cannot be based on the individual or personal knowledge of the witness.” Stearns v. State, 266 Ala. 295, 96 So.2d 306 (1957).

This latter aspect of the rule of general reputation evidence was violated repeatedly in the testimony of plaintiffs’ witnesses. From a review of their testimony it is obvious that all nine of the witnesses who were allowed to testify on general reputation based their statements that “the general reputation of Ellwest Stereo Theatre for lewdness was bad” at least in part on their personal knowledge of the establishment obtained through their police work. For two witnesses (Holtam and Praytor) this was the only source for their statements. Several others (Luker, Bowden, Robertson, Cox, and Howze) made references to discussions with other officers and only five (McNutt, Robertson, Cox, Willis, and Howze) made any reference whatsoever to members of the community outside the police department. In this latter group McNutt admitted that he did not know what lewdness was.

In Stearns, supra, this Court observed, “The fact that on redirect examination [the witness] stated that his opinion was based on what he had heard and what he personally knew did not cure the error. Obviously, he was still making the point that his answer was based on his personal knowledge.” 266 Ala. at 297, 96 So.2d at 308. The reasoning of Stearns is applicable to the testimony of all the witnesses here. In most instances references to the “community” and “other citizens” were the result of tortured efforts to cure prior statements which had been objected to. Only rarely was this information volunteered by the witness. Usually it came out as a monosyllabic answer to a leading question. Objections were frequent, exchanges between counsel were sharp, and the rulings were confusing and not always adhered to. The cumulative effect of this questionable testimony was highly prejudicial.

In a similar vein it is obvious that the overwhelming portion of this testimony did not deal with Ellwest’s reputation “among members of the community generally” as is required. See Gamble, supra, at § 26.02(3). Instead it related to the business’ reputation within the police department and, specifically, the vice squad. Of course, the vice squad operates on the premise that establishments such as defendant’s are lewd. Consequently, to use vice squad officers to testify to the business’ general reputation simply begs the question. The situation is further aggravated when those individuals’ testimony primarily involves Ellwest’s reputation within the vice squad and police department. Obviously, if the vice squad and police department did not think the business was lewd they would not have supported a suit to close it down. The testimony of these witnesses on “general reputation” added nothing that was not evident from the filing of the suit itself, i. e., that the police department and vice squad considered this business lewd.

It has been noted elsewhere that “reason for distrust exists when the inquirer is a paid partisan agent who seeks evidence of one purport only.” 3 Wigmore, supra, at § 692. This reasoning is the basis for the rule in Alabama that someone sent by the adverse party to investigate an individual’s reputation is not qualified to testify to that reputation. See Griffith v. State, 90 Ala. 583, 8 So. 812 (1890); Sorrelle v. Craig, 9 Ala. 534 (1846). The members of the vice squad were simply paid partisan agents sent by the adverse party to investigate defendant’s theatre. Thus, in light of their obvious bias and the understandable tendency of these individuals to base their statements on their personal knowledge and opinions gained through their police work, I consider it inappropriate to use members of the vice squad or other police officers involved in the investigation of a business to establish a business’ general reputation for purposes of prosecution under the Red Light Abatement Act. Of course, these same individuals should be able to testify, as they did in this trial, to specific incidents which they have observed so that the trial court may determine whether “lewdness, assignation, or prostitution is conducted, permitted, continued, or exists” on the premises so as to warrant injunctive relief. But if testimony of general reputation of a business is to be used, it should be used in a manner consistent with the law of evidence in this State.

Since the padlock order, in my opinion, operated as an impermissible prior restraint on presumptively protected activities under the First Amendment of the United States Constitution, I would hold that that order must be reversed. I would then remand for a new trial to allow the trial judge to determine what injunctive relief, if any, is appropriate and necessary.

JONES, J., concurs in the result.

BEATTY, Justice

(dissenting):

I concur in Justice Faulkner’s dissent, and I adhere to the views expressed in my dissent in Sweeton II, 366 So.2d 710 (1979). There I stated that (1) the Red Light Abatement Act was not intended by our legislature to be applicable to speech or expression, and (2) even if it were so intended, such an application would offend our federal constitution. U. S. Const., Amend. I.

      . That section states:
      § 6-5-140. Definitions.
      For the purposes of this division, the following terms shall have the meanings respectively ascribed to them by this section: (1) PLACE. Any building, erection or place, any separate part or portion thereof or the ground itself.
      (2) PERSON. Any individual, corporation, association, partnership, trustee, lessee, agent or assignee.
      (3) NUISANCE. Any place in or upon which lewdness, assignation or prostitution is conducted, permitted, continued or exists and the personal property and contents used in conducting or maintaining any such place for any such purpose.
      Such conduct is prohibited in the following section:
      § 6 5 141. Who deemed guilty of maintaining nuisance.
      Any person who shall use, occupy, establish or conduct a nuisance, as defined in section 6 -5-140, or aid or abet therein, and the owner, agent or lessee of any interest in any such nuisance, together with the person employed in or in control of any such nuisance by any such owner, agent or lessee shall for the purpose of this division be guilty of maintaining a nuisance and shall be enjoined as provided in this division.

      . The list of sites of homosexual arrests included the Greyhound Bus Station and the restrooms at Loveman’s and Pizitz Department Stores as well as other “adult entertainment” establishments, hotels, bars and nightclubs.

      . I also note that this opinion, the only one relied on by the majority to support its position, comes from Division Two of the Fourth Appellate District of the Courts of Appeal of California. The decision represented the views of only two judges and included a dissent. At that time the California Courts of Appeal included forty-eight judges. The California Supreme Court denied a petition for a hearing over the objection of Justices Tobriner and Mosk. The statement in the reporter does not indicate whether the California Supreme Court denied a hearing on the merits or for failure to comply with procedural requirements or provisions for further appellate review. “Sarong Gals” involved the sale of liquor, an activity subject to more extensive regulation and not present in this case. More directly in point are the cases of People ex rel. Busch v. Projection Room Theatre, 17 Cal.3d 42, 130 Cal.Rptr. 328, 550 P.2d 600 (1976) (padlock order would constitute unconstitutional prior restraint); People ex rel. Van de Kamp v. American Art Enterprises, 75 Cal.App.3d 523, 142 Cal.Rptr. 338 (1977) (padlock order refused); People v. Mitchell, 64 Cal.App.3d 336, 134 Cal.Rptr. 358 (1976) (preliminary padlock order refused even though theatre encouraged acts of public masturbation); Tarbox v. Board of Supervisors, 163 Cal.App.2d 373, 329 P.2d 553 (1958) (thea-tre management not responsible for lewd conduct of patrons where reasonable steps taken to prevent the conduct), all of which involved the showing or making of films and directly refute the position adopted by the majority of this Court. Under these circumstances, I cannot view "Sarong Gals” as persuasive authority in this Court in this instance.

      . That section provides:
      § 6-5-151. Order of abatement; sale of property.
      (a) If the existence of the nuisance is admitted or established in an action as provided in this division, or in a criminal proceeding in the circuit court, an order of abatement shall be entered as a part of the judgment in the case, which shall direct the removal from the place of all personal property and contents used in conducting the nuisance not already released under authority of the court as provided in sections 6-5-143, 6-5-145 through 6-5-148 and 6-5-150 and shall direct the sale of such thereof as belonged to the defendants notified or appearing in the manner provided for the sale of chattels under execution.
      (b) Such order shall also require the renewal for one year of any bond furnished by the owner of the real property as provided in section 6-5-148 or, if not so furnished, shall continue any closing order issued at the time of granting the preliminary injunction or, if no such closing order was then issued, shall include an order directing the effectual closing of the place against its use for any purpose, so keeping it closed for a period of one year unless sooner released; but the owner of the place so closed and not released under bond as provided in section 6-5-148 may appear and obtain such release in the manner and upon fulfilling the requirements as provided in such section.
      (c) The release of the property under the provisions of this section shall not release it from any judgment, lien, penalty or liability to which it may be subject by law.
      (d) Owners of unsold property and contents so seized must appear and claim same within 10 days after such order of abatement is made and prove innocence to the satisfaction of the court of any knowledge of said use thereof and that with reasonable care and diligence they could not have known thereof. Every defendant in the action shall be presumed to have had knowledge of the general reputation of the place. If such innocence shall be so established, such unsold personal property and contents shall be delivered to the owner; otherwise, it shall be sold as provided in this section.
      (e) If any person shall break and enter or use a place so directed to be closed, he shall be punished for contempt as provided in section 6-5-154.

      . That section provides:
      § 6-5-154. Violations constituting contempt; proceedings thereon.
      (a) In case of the violation of any injunction or closing order granted under the provisions of this division or of any restraining order or the commission of any contempt of court in proceedings under this division, the court or the judge thereof may try and punish the offender. The proceedings shall be commenced by filing with the register or clerk of the court a complaint under oath setting out and alleging facts constituting such violation, upon which the court or judge shall cause a warrant to issue, under which the defendant shall be arrested; he may be released on bond, pending the hearing, to be fixed by the judge. The trial may be had upon affidavits or either party may demand the production and oral examination of witnesses.
      (b) A party found guilty of contempt under the provisions of this section shall be punished by a fine of not less than $100.00 nor more than $200.00, or by imprisonment in the county jail not less than one nor more than three months, or by both such fine and imprisonment.


source: Caselaw Access Project

author: PER CURIAM. JONES, Justice

license: Public Domain

text:
    Jimmy LOLLAR v. ALABAMA POWER COMPANY.
    77-659.
    Supreme Court of Alabama.
    April 6, 1979.
    Rehearing Denied May 4, 1979.

      J. Richard Carr, James D. Pruett, Gadsden, for appellant.
    Thomas W. Christian of Balch, Bingham, Baker, Hawthorne, Williams & Ward, Birmingham, and Roger C. Suttle of Inzer, Suttle, Swann & Stivender, Gadsden, for appellee.
   PER CURIAM.

Plaintiff Jimmy Lollar was helping his friend, Joe Howard, erect a 90-foot CB antenna when the antenna fell against high power lines of Alabama Power Company. He was severely injured. Lollar sued the Power Company, claiming that the “electric lines apparently were built without authority and therefore constituted a trespass to private property with attendant danger to plaintiff and others so situated.”

After trial, the jury returned a verdict for the Power Company.

Lollar appeals from the judgment entered on the adverse jury verdict, contending that the trial court erred in giving two written requested charges:

“DEFENDANT’S CHARGE ‘A’: The Court charges the Jury that the Defendant, Alabama Power Company was not guilty of trespass, as a matter of law, in maintaining its power lines across the property of Joe Louis Howard and Annette Howard at the time of Plaintiff’s accident.”
“DEFENDANT’S CHARGE ‘C’: The Court charges the Jury that the undisputed evidence in this case establishes that the Defendant, Alabama Power Company, had acquired an easement by prescription and had the legal right to maintain its power lines across the property of Joe Louis Howard and Annette Howard at the time Plaintiff was injured.”

The Power Company contends that Lollar never properly objected to the giving of the two instructions. It also contends that the evidence clearly showed that it had obtained an easement by prescription; therefore, the maintenance of its power lines over the Howard property was lawful. The colloquy between the court and counsel for both sides is helpful:

“THE COURT: * * * Now then, you have got some here regarding prescription giving the Power Company the legal right to maintain the power line across the property. I am inclined to think that those are good charges, that they had it by prescription. Do you have any argument on that?
“MR. CARR: No, sir, I haven’t researched it. They probably do have a prescriptive right. I don’t think they have proved it though, Judge. There are some things that you have to prove for prescription. It just doesn’t come out of the air. Now, where is the proof that they have a prescriptive right? I think probably that they do have, but I don’t recall any proof toward that end. Of course, I think the charge should be based on the proof, not on what I think or what the Court might think. I don’t recall any proof about any prescription.
“THE COURT: Other than the lines have been there since about 1927.
“MR. CARR: Yes, sir. If that is sufficient. If that in itself is—
“MR. SUTTLE: —And if they have refused to relocate or to move the lines at the request of Joe Louis Howard—
“MR. CARR: —No, they agreed to do it but said he would have to pay a lot of money for it.
“MR. SUTTLE: I know, but that is as far as expense.
“MR. CARR: Well, the Judge is bound by the evidence. I think it is uncontradicted.
“MR. CHRISTIAN: The elements, Judge, — I don’t want to be repetitious about this. You don’t put somebody on and say ‘are you hostile or — ’
“It comes from what the facts are, and the fact that it has been there fifty years is sufficient under the law.
“MR. CARR: But we don’t know but what it has been moved and put back. You see, they have some proof. The burden is—
“I don’t want to be repetitious either. I just don’t think they have proved their prescriptive rights.
“MR. SUTTLE: It was proved by Ray Kitchens.
“THE COURT: I thought Kitchens testified that it has been there continuously since 1929.
“MR. PRUETT: ’38,1 think, is what Ray said, but he thought it went back before that.
“MR. CARR: What about you charging on what prescription is and let the jury say whether they have prescriptive right.
“MR. SUTTLE: We think it is a matter of law under the evidence, your Honor.
“MR. CHRISTIAN: That case holds that it is beyond inquiry after 20 years.
“MR. CARR: Well, if you think the evidence sustains prescription then it probably does. I don’t personally think—
“I would hate to be in trying a case to prove prescriptive right with the evidence that is before the Judge. I think that the same burden is on them as it would be on anybody to prove prescription.
“MR. PRUETT: Judge, the evidence as it is about prescription is uncontradicted. If you think that as a matter of law makes that prescription then I guess you just have to charge the jury that we cannot recover for trespass.
“THE COURT: Well, you are not suing for trespass.
“MR. PRUETT: Well, I don’t understand—
“THE COURT: Really, it is a side issue it seems to me.
“MR. SUTTLE: To me too, your Honor.
“THE COURT: It doesn’t really affect the question whether or not they were negligent.
“MR. SUTTLE: I don’t think so.
“MR. CARR: Well, I think we would all hate to get a reversal on something that is not a—
“What have you got in mind to say? I might just agree to it. What is the charge?
“THE COURT: I was going to give the charges they have got here that they have the legal right to maintain by prescription — maintain the lines by prescription.
“MR. CARR: You are determining that as a matter of law?
“THE COURT: Well, I would think so under the evidence. I just—
“MR. CARR: Well, frankly I haven’t researched it, but I just don’t believe the evidence is before the Court.
“THE COURT: Whether or not even if they were trespassing I don’t think it really has any bearing on this particular case.
“MR. CARR: Well, could you say that some other way than saying they have a legal right? Could you strike those allegations—
“MR. PRUETT: —Why don’t you just tell the jury, Judge, that the plaintiff cannot recover because of the fact that the lines are located—
“THE COURT: —Well, they have requested these charges. Do you all want to withdraw these charges?
“MR. CHRISTIAN: No, sir. They have raised that as a big issue in this case.
“MR. SUTTLE: That is part of the pleadings in the complaint, your Honor.
“THE COURT: I don’t think that the plaintiff in this case has any right to complaint — to recover anything if they were— even if they were trespassing.
“MR. CARR: It has to do with the burden though, Judge. They have a franchise to run on the public streets and the only way other than that they could get on private property would be through the process of an easement.
“THE COURT: All right, but they can get on private property with an easement or in this case by prescription. The prescription would have run probably before Howard ever got possession of the property.
“MR. CARR: It is in the nature of a condemnation without damages. I have tried a case on that basis. Let me discuss that with Mr. Jim.
“MR. SUTTLE: Judge, you can acquire an easement by a deed or adverse possession or by prescription. — Three different ways.
“MR. CARR: Could you cut that down to one — those all say the same thing — and then we wouldn’t object to it.
“MR. SUTTLE: Judge, we would like the court to rule on the strength of what we ask the Court to charge.
“MR. CARR: Just give it in your oral charge. I don’t think that they have the right to have that said four times just by—
“THE COURT: Well, I kind of agree with you.
“MR. CARR: If you would give it in the oral charge then it would cure all of our complaints.
“MR. PRUETT: Sure, you could cover it orally, Judge. Just tell them they cannot award damages to the plaintiff because the Power Company was not where it had a right to be and that will take care of it.
“THE COURT: All right, I will give Defendant’s Charge C.
“MR. SUTTLE: Well, we want Number 1 there, your Honor. — A rather.
“THE COURT: All right, I’ll give A and C. The others are repetitious. To me it is kind of like the fact that a man doesn’t have a drivers license and is involved in a wreck. The fact that he doesn’t have a drivers license doesn’t have a thing to do with his negligence.
“MR. PRUETT: That’s what I say, just tell the jury that that is not an element of liability if you want to.
“THE COURT: Well, I will have to give their charges.
“MR. PRUETT: You don’t have to give them at all, your Honor.
“THE COURT: I know, but I have got to charge them somehow.
“MR. CARR: If you did it in the oral charge in your own inimitable way we wouldn’t have to have Tom’s pros read to them so many times.”
The “repetitious” instructions referred to by the court and counsel during the colloquy were two requested charges by the Power Company which the court refused to give:
“DEFENDANT’S CHARGE ‘B’: The Court charges the Jury that the Defendant, Alabama Power Company, had the legal right to maintain its power lines across the property of Joe Louis Howard and Annette Howard at the time Plaintiff received his injury.
“DEFENDANT’S CHARGE ‘D’: The Court charges the Jury that Defendant, Alabama Power Company, had acquired an easement by prescription to maintain its power lines across the property of Joe Louis Howard and Annette Howard at the time Plaintiff had his accident.”

The trial judge read Charges A and C during his oral charge. When he concluded his charge to the jury, and inquired of counsel if they had any objections, plaintiff’s counsel replied: “No objections.”

This case is due to be affirmed by applying Rule 51, ARCP, which in pertinent part reads:

“ . . .No party may assign as error the giving or failing to give a written instruction, or the giving of an erroneous, misleading, incomplete, or otherwise improper oral charge • unless he objects thereto before the jury retires to consider its verdict, stating the matter to which he objects and the grounds of his objection.”

Since the adoption of ARCP, our appellate courts have interpreted this portion of the rule in varying factual contexts. Its purpose and spirit are aptly expressed by the Court of Civil Appeals in Hogan v. Alabama Power Company, 351 So.2d 1378 (Ala.Civ.App.1977), cert. denied, 351 So.2d 1388 (Ala.1977):

“Permission to assign grounds for objections to the giving or refusal to give written requested charges is the heart and soul of Rule 51 for it allows the trial judge to intelligently re-assess the correctness of the oral charge that he has given or proposes to give. Such a re-assessment helps to minimize error and to avoid possible error in the giving or refusal of the requested charges. Therefore, for us to allow the grounds in support of the objections to be assigned in the motion for new trial would destroy the very purpose of the rule. Furthermore, should this court condone such a practice, we would not only have excised the heart of Rule 51, but we will have reverted back to the former practice of permitting a party to dump handfuls of written requested charges on the judge’s bench just before the case is submitted to the jury to see how many erroneous charges the judge will give to the jury.”

For a recent case reviewing several prior cases interpreting Rule 51, see Odom v. Linsey, 365 So.2d 664 (Ala.1978).

This is a case where Rule 51 can be appropriately applied.

AFFIRMED.

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

JONES and FAULKNER, JJ., dissent.

JONES, Justice

(dissenting).

I respectfully dissent.

A. The Reviewable Error (ARCP 51) Issue

Our previous treatment of the reviewable error issue under ARCP 51 seemed consistent in its requirement that the spirit and purpose of the Rule be complied with, but without exacting an overly technical standard. Admittedly, this is a close case; but I believe it breaks the consistency established through the cases cited and reviewed in Odom.

The issue in the instant case arises in the context of “given” requested written instructions which were “read” by the trial Judge to the jury along with his oral charge. Additionally, when the Judge concluded his total instructions and inquired of counsel whether they had any objections, Plaintiff’s counsel replied: “No objections.”

The Power Company insists that this reply constituted a waiver of any and all objections to the entire charge (oral and “given” requested charges) irrespective of the objections and grounds therefor stated by the Plaintiff during the pre-charge conference. As to the oral instruction, unarguably, Plaintiff waived all objections; but my review of the record convinces me that the trial Court gave the requested charges after having fully understood counsel’s objection and their grounds therefor as stated in a lengthy colloquy in chambers during the pre-charged conference.

On the record as here postured, I would hold that the giving of the requested jury instructions as part of the whole of the Court’s oral charge, as mandated by the Rule, did not have the effect of so merging its contents as to cause the given requested portion to lose its identity; and, consequently, Plaintiff’s post-charge “No objections” did not constitute a waiver of his objections to the subject charges which were marked “Given” and read verbatim to the jury.

Unquestionably, the better practice would be for counsel, who wishes to agree to the oral portion and preserve for appellate review any objections previously registered to the written requested portion of the charge, to continue beyond the mere “No objections” by adding, in substance: “Except, of course, for those objections and grounds therefor to the given requested charges as previously stated on the record”; or, counsel should restate his objections and grounds. But where, as here, the spirit of the Rule has been followed and the trial Judge has not been misled, I think we do violence to its purpose to exact upon the trial bar an overly technical application of the pertinent provisions of Rule 51.

B. The Charges

As I turn now to the merits of the dispos-itive issue, I will treat the two charges as one since both state a single legal proposition: That, as a matter of law, the status of the Power Company in maintaining its line across Howard’s property was that of one who had the lawful right to use the property, having acquired an easement by prescription, and not that of a trespasser.

A summary review of our case law disputes the correctness of this proposition. When the Power Company joined issue on Plaintiff’s claim that its status in maintaining these lines was that of a trespasser, the burden of proof was on the Power Company to establish its right of easement by prescription. Evidence of forty years’ continuous uninterrupted use of the property, under the circumstances as shown by the totality of the evidence, was sufficient to go to the jury on this issue — to be considered along with all of the evidence — with appropriate instructions by the Court. But this evidence, standing alone, did not warrant a directed verdict on the “easement by prescription” issue.

As the Power Company suggests, however, an adverse holding with respect to this initial inquiry does not of itself answer the ultimate question: Does the error in giving this incorrect instruction work a reversal of the cause?

The Power Company’s argument that it does not is a persuasive one. Its duty to the Plaintiff, says the Power Company, is that of due care whether its status is that of a trespasser or that of one who was in lawful use of the property. It was the Plaintiff and not the Defendant, insists the Power Company, who asserted the claim of its trespasser status as the theory for his recovery; thus, his right to complain, even in the face of an erroneous instruction on this issue, is necessarily dependent upon whether the trespasser status theory of liability imposes a higher degree of care than that of due care on which the jury was charged by the Court.

I agree with the Power Company that its status as a trespasser on Howard’s property does not alter the degree of care owed to Lollar as an invitee of Howard. But the more serious aspect of this dual-pronged inquiry remains: Did the Court’s erroneous instruction to the jury that the Power Company had a lawful right to maintain its high voltage lines across Howard’s property, though not altering the Power Company’s degree of duty to Lollar, nevertheless serve to encumber the jury’s consideration of the due care issue?

My restatement of the ultimate issue, as posed above, finds its source in my careful review of the record of trial. Indeed, Plaintiff’s counsel, during the pre-charge conference, stated to the Court: “ . . could you say that some other way than saying they have a legal right? ... It has to do with the burden though, Judge. They have a franchise to run on the public streets and the only way other than that they could get on private property would be through a process of an easement. . . . Sure, you could cover it orally, Judge. Just tell [the jury] they cannot award damages to the Plaintiff because the Power Company was not where it had the right to be and that will take care of it.”

Additionally, Plaintiff’s counsel conclude in their brief: “ . . . the Plaintiff’s reasoning was not that the Power Company was liable to him because it was guilty of trespass but that it was liable to him because it had failed in a duty created by the [public way franchise] rule of the Public Service Commission [in evidence] in failing to relocate its lines to a safer point after notice of the danger.”

It is not the Plaintiff’s theory that the Power Company’s status (i. e., assuming the jury resolves this issue adversely to the Power Company) imposes upon it some different or higher degree of duty to Plaintiff as an invitee of the property owner; rather, Plaintiff contends that the Power Company’s status at the time and place of the Plaintiff’s injuries, though immaterial to the degree of care owed, was material to the jury’s consideration of the Defendant’s exercise of due care. Stated otherwise, Plaintiff insists that the jury had the right: First, to determine the Defendant’s status; and second, to weigh this circumstance, along with all of the other evidence, in arriving at its final determination of Defendant’s liability under the due care standard. I agree.

No case is cited, nor have I found one, that directly supports (or is opposed to) this proposition. The recent case of Alabama Power Company v. Alexander, 370 So.2d 252 (Ala.1979), however, is strongly supportive by way of analogy. There, we reversed a $300,000 verdict against the Power Company where the plaintiff, as a member of a well drilling crew, was electrically burned while manually hoisting a long section of pipe that contacted an overhead line. We found no evidence from which the jury could reasonably infer that the Power Company should have reasonably foreseen the necessity for insulating its electrical wires. The Power Company’s two principal arguments related to its status as one whose lines were legally located on the public right of way and the fact that the height of its lines exceeded recognized standards.

We accepted these contentions and held that the totality of the circumstances, including its status as a lawful occupant of the premises, entitled the Power Company to a directed verdict on the issue of its alleged breach of duty to insulate its electrical lines. Just as the Power Company’s status was a relevant circumstance in Alexander, as contended by the Power Company, its status is a relevant circumstance here. For other cases discussing various circumstances for jury consideration in determination of the due care standard, see Alabama Power Co. v. Taylor, 293 Ala. 484, 306 So.2d 236 (1975); Sullivan v. Alabama Power Co., 246 Ala. 262, 20 So.2d 224 (1945).

To give the Power Company the advantage of its lawful status, as we obviously did in Alexander, and then to hold here that its status is irrelevant to the “exercise of due care” issue, would be an inconsistent application of the same principle. The reader is cautioned not to conclude necessarily that this view is opposed to that of the majority, this issue not being addressed therein.

The fact that there are no reported cases on this point serves to verify that counsel for each of the parties in this type of case have assumed (and I think rightly so) that the Power Company’s status is a relevant circumstance. Indeed, in the wake of Alexander, I would be surprised if the Power Company raises the issue again except in the context of asserting that its status in using the property to locate its lines is that of lawful occupancy. Its relevancy to the due care issue seems unarguable. Otherwise, the Power Company’s claim, in a given case (as in Alexander), that it occupied the property upon which its lines were located under a deed of easement would be subject to exclusion upon Plaintiff’s, objection.

I would hold that the trial Court erred in excluding from the jury’s consideration a determination of Defendant’s status at the time and place of the incident made the basis of Plaintiff’s claim, and in preventing the jury’s subsequent consideration of that status as one of the circumstances which the jury had the right to consider in arriving at its final determination of liability under the due care standard.

I would reverse and remand.

FAULKNER, J., concurs.

      . For a statement of the applicable rule, see Hendrix v. Creel, 292 Ala. 541, 297 So.2d 364 (1974), and Bazzell v. Cain, 285 Ala. 661, 235 So.2d 805 (1970).

      . Although the case cited as authority for the proposition (Blackwell v. Alabama Power Co., 275 Ala. 123, 152 So.2d 670 (1973)) is not directly in point, I agree that, by way of analogy, its principle supports the Power Company’s view on this preliminary issue.


author: PER CURIAM.

text:
    Joe FLEMING and Lily Flagg Builders Supply Company, Inc., a Corporation, v. Howard KIRKPATRICK.
    77-484.
    Supreme Court of Alabama.
    May 11, 1979.
    Paul L. Millirons, Huntsville, for appellants.
    Charles A. Sullins, Huntsville, for appel-lee.
   PER CURIAM.

This is an appeal from a judgment based on a jury verdict rendered against the defendants in an action for an accounting and breach of contract. We affirm.

On April 16, 1968, Howard Kirkpatrick entered into a contract with the appellants, Joe Fleming and Lily Flagg Builders Supply, Inc. (hereinafter Lily Flagg). The contract provided, in essence, that Howard Kirkpatrick would exchange. certain stock certificates representing his 48% interest in Lily Flagg for 48% of the assets of Lily Flagg. The major portion of the assets was represented by Lily Flagg’s accounts receivable, and the contract provided that Kirkpatrick was to be paid 48% of the net collections on all of Lily Flagg’s accounts receivable accruing prior to January 31, 1968. The contract indicated that the amount of the accounts receivable was approximately $327,000.

In November, 1972, Kirkpatrick filed this action for an accounting alleging generally that he was due certain amounts under the contract; that he was unable to ascertain the amount owed him and that a determination of the amount owed him was “peculiarly within the knowledge” of Joe Fleming and Lily Flagg. Kirkpatrick asked that the court determine the amount due him from Fleming and Lily Flagg and, further, that the court direct Fleming and Lily Flagg to pay him any amounts due.

For reasons not apparent on the record, no significant action was taken in this case until 1976. Masters were appointed pursuant to Rule 53, ARCP and the masters reviewed Lily Flagg’s records in an attempt to ascertain the amount due Kirkpatrick. The masters’ report was inconclusive and a jury trial was commenced on November 15, 1977, in Madison County Circuit Court. On November 18, 1977, the jury returned a verdict for $50,116.33 in favor of the plaintiff against both Joe Fleming and Lily Flagg. Judgment was entered accordingly and a motion for a new trial was filed on the following grounds: excessive verdict; verdict against the weight of the evidence; and quotient verdict. On March 20, 1978, the motion for a new trial was denied. This appeal followed.

The appellants contend that there was not sufficient evidence presented at trial to support the jury’s determination that the appellants breached the provisions of five contract provisions set out below.

1. Each of the corporate parties hereto will purchase its stock held by Howard Kirkpatrick, said stock being fifty (50%) per cent of the stock in Bessemer Readi-Mix, Inc., and K & F Trucking Company, Inc., and forty-eight (48%) per cent or forty-eight (48) shares of Lily Flagg Builders Supply, Inc. The total payment to be made by the three corporations for the stock of Howard Kirkpatrick shall upon closing of this transaction be SEVEN THOUSAND FOUR HUNDRED SEVENTY & 39/100 ($7,470.39) DOLLARS, and in addition thereto in the case of Lily Flagg Builders Supply, Inc., Howard Kirkpatrick shall also be paid an amount equal to forty-eight (48%) per cent on all net collections for all accounts receivable accruing to said corporation prior to January 31, 1968. Said net collections on the accounts receivable are to be arrived at by deducting from gross collections all actual expenses, including but not limited to, attorneys’ fees, court costs, the items specified in other paragraphs hereof and one (1%) per cent of all accounts collected as of March 31, 1968, and two and one-half (2/2%) per cent of all amounts collected after March 31, 1968, which percentages are to be retained by Lily Flagg Builders Supply, Inc., as its office expense for collecting said accounts.
7. Lily Flagg Builders Supply, Inc., shall be responsible for filing all liens on accounts accruing prior to. the 31st day of January, 1968, within the time period prescribed by law and pursuing same to a conclusion judgment, and in the event the corporation should elect not to file a lien where the amount of indebtedness exceeds $500.00, then and in that event, the corporation would be liable to Howard Kirkpatrick for his percentage of the net amount that would have been collected had such a lien been filed, to be paid not later than the 10th of the month following the expiration of the time allowed by law for filing said lien.
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12. All notes receivable and all other such items due the corporations as of January 31,1968, shall be paid to Howard Kirkpatrick in the same manner and on the same percentage as the accounts receivable are paid hereunder. This should specifically include any refund for taxes due to any of the three corporations which arise for any years prior to the year 1968. It also being expressly understood and agreed that any tax liabilities or tax deficiency which might accrue against any of the said three corporate parties hereto for the taxable year 1967, or any prior taxable year, will be paid out of the accounts receivable of Lily Flagg Builders Supply, Inc., which came into being prior to the 31st day of January, 1968, and these payments will be deducted from the gross accounts receivable.
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15. Lily Flagg Builders Supply, Inc., shall attempt to procure a deed in lieu of foreclosure on the Florida property on which they have a note and mortgage, and in the event they are unsuccessful, they will proceed to foreclose on the property and shall bid the property in for $65,000.00. If Lily Flagg Builders Supply, Inc., is a successful bidder, or accepts a deed in lieu of foreclosure on the Florida property, it shall forthwith sell said property, but shall not sell said property at less than $65,000.00 without the consent of Howard Kirkpatrick, the proceeds of said sale to be divided and distributed in the same manner as hereinabove provided for accounts receivable.
18. The books and records of Lily Flagg Builders Supply, Inc., which relate in any way to the accounts receivable which were acquired prior to January 31, 1968, shall be open at all reasonable times to inspection by Howard Kirkpatrick, his accountant or attorney, and Lily Flagg Builders Supply, Inc., shall furnish to Howard Kirkpatrick each month a written statement of the collections on the aforesaid accounts receivable and each three months shall furnish him a progress report on litigation and other efforts to collect said accounts.

Additionally, the appellants contend that under the contract, only Lily Flagg is liable to Kirkpatrick and therefore Joe Fleming should be absolved from individual responsibility. The appellants also assert that the matter of damages is controlled by the contract and the verdict is excessive.

It is basically the appellants’ position that the contractual provisions set out above are clear and unambiguous; that their performance is in accordance with the explicit terms of the contract and there is no evidence of any material breach of any of the contract’s terms.

In World’s Exposition Shows v. B. P. O. Elks No. 148, 237 Ala. 329, 186 So. 721 (1939), this Court observed that every contract implies good faith and fair dealing between the parties.

In 17 Am.Jur.2d Contracts § 256 (1964), the statement is made that

“it may be said that contracts impose on the parties thereto a duty to do everything necessary to carry them out. When one undertakes to accomplish a certain result he agrees by implication to do everything to accomplish the result intended by the parties.” (Footnotes omitted.)
An eminent commentator has noted that “[i]n any commercial agreement in which the compensation promised by one to the other is a percentage of profits or receipts . . ., there will nearly always be found an implied promise of diligent and careful performance in good faith and of forbearance to make performance impossible by going out of business or otherwise.” (Footnote omitted.) 3 A. Corbin, Contracts § 568 (1960).

We have reviewed the testimony and the exhibits and we conclude that there was sufficient evidence to support the jury’s determination that Howard Kirkpatrick was entitled to an additional $50,-116.33 under these enumerated provisions. Our conclusion is strengthened by the standard of good faith and fair dealing imposed by operation of law on the appellants.

We deem it unnecessary to set out all of the evidence that compels this conclusion. We note, however, that some of the evidence presented, if believed by the jury, would have supported a finding that payments on accounts made the subject of this agreement were directed to purchases made after this contract instead of pre-existing debts covered by this agreement. There was also evidence that a substantial tax refund inured to the benefit of Lily Flagg as a result of writing off debts as uncollec-tible and that Kirkpatrick was not credited with his portion of that benefit.

Testimony also indicated that almost one third of the accounts receivable made the subject of this contract were written off as uncollectible and that Kirkpatrick’s accountant/bookkeeper had only limited access to Lily Flagg’s corporate records.

Suffice it to say that this evidence was disputed, but since it is the function of the jury to resolve controverted factual issues, Adams v. Adams, 294 Ala. 514, 319 So.2d 257 (1975), and the jury is authorized, if not obligated to determine witnesses’ credibility and draw inferences from the evidence, Cook v. Sweatt, 282 Ala. 177, 209 So.2d 891 (1968), we will not disturb the verdict if there is competent evidence to support it.

With respect to the individual liability of Joe Fleming, the record reveals that on cross-examination, Mr. Fleming testified that he signed the contract in his individual capacity and that he promised to pay Kirkpatrick his share or indemnify him. These representations, especially in light of the good faith/fair dealing standard would warrant the jury’s returning a verdict against Fleming individually.

In brief, the counsel for the appellee has resorted to a lengthy arithmetic exercise to justify the return of a jury verdict far in excess of $50,000. We agree with his conclusions to the extent that we do not consider the jury’s verdict so excessive as to warrant a reversal.

Finally, we note that a motion for a new trial was made. The record reveals that the trial court granted the appellants’ motion for an extension of time, so that they might review the transcript and then amend their motion for a new trial. All indications are that the trial judge considered the motion for a new trial with commendable diligence and found that it was not well taken. The denial of a motion for a new trial strengthens the presumption of correctness which this Court accords jury verdicts. Walker v. Cardwell, 348 So.2d 1049 (Ala.1977).

The judgment of the trial court is affirmed for the reasons stated above.

AFFIRMED.

BLOODWORTH, MADDOX, FAULKNER, ALMON and EMBRY, JJ., concur.


author: BEATTY, Justice. MADDOX, Justice

text:
    John E. HARRISON v. ALABAMA POWER COMPANY, a Corporation.
    77-795.
    Supreme Court of Alabama.
    May 11, 1979.

      John E. Byrd, of Byrd, Carter & Smith, Dothan, for appellant.
    John P. Scott, Jr., Birmingham, and G. M. Harrison, Dothan, for appellee.
   BEATTY, Justice.

This is an appeal from a jury verdict in favor of defendant, Alabama Power Company (APCO). The appeal is dismissed.

The timely filing of notice of appeal under Rule 4(a)(1), ARAP is a jurisdictional act. Thompson v. Keith, Ala., 365 So.2d 971 (1978); Holmes v. Powell, Ala., 363 So.2d 760 (1978). Unless the notice is filed within the applicable period of Rule 4, ARAP we are foreclosed from reaching the merits of the case. The facts surrounding the appel-lee’s motion to dismiss this appeal do require inspection however. Those dates that are pertinent to our discussion follow:

March 28, 1978 - Final Judgment.
April 25, 1978 - Appellant files Rule 50 and/or 59 post-trial motion.
May 1, 1978 - Motion(s) set for hearing on May 9,1978.
May 9, 1978 - General continuance of hearing granted by trial court.
June 21, 1978 - Trial court sets hearing on post-trial motion(s) for August 9, 1978.
July 24, 1978 - Expiration of 90 day period under Rule 59.1, ARCP.
August 9, 1978 - Court denies the motion(s).
September 4, 1978 - Expiration of 42 day period under Rule 4, ARAP.
September 20, 1978 - Notice of appeal filed.

Rule 4(a)(1), ARAP provides that the notice of appeal shall be filed within 42 days of the entry of the judgment or order appealed from. The running of this time period may be suspended however by the timely filing of a post-trial motion pursuant to Rules 50, 52 and 59, ARCP. It is undisputed in this case that the motion, or motions, of April 25, 1978 were timely and thus tolled the running of the 42 day period. The dispute in this case centers on the point in time at which the 42 day period once again began to run.

Rule 4(a)(3), ARAP instructs that the 42 day period once suspended by the timely filing of a post-trial motion will begin to run again from the date that motion is granted, or denied by the court or operation of law. A post-trial motion is denied by operation of law when it is left pending in the trial court for more than 90 days without the express consent of all parties, which must be reflected by the record unless extended by the appellate court. Rule 59.1, ARCP. If the parties here had expressly consented on record to the pendency of the post-trial motion(s) for more than 90 days then the notice of appeal was timely, having been filed within 42 days of the August 9, 1978 denial of the motions. If, however, the record does not reflect the express consent of the parties to a longer period of pendency then the notice of appeal was not timely because it was filed more than 42 days from the date on which the motion(s) were deemed denied under Rule 59.1, ARCP. Thompson v. Keith, supra; Bd. of Water & Sewer Comm’rs. of the City of Mobile v. APCO, Ala., 363 So.2d 304 (1978). After a review of the parties’ contentions and of the record we are compelled to hold that the latter situation exists in this case. This follows despite the appellant’s contention that the agreement of the parties to a continuance of the hearing on the motion(s) reflected in the court’s May 9, 1978 order, constitutes “express agreement” under Rule 59.1, ARCP. The consent or assent to a continuance of a hearing does not satisfy the requirement that the record show the parties’ express consent to an extension of the 90-day period. Such an argument was disposed of in Personnel Board for Mobile County v. Bronstein, Ala.Civ.App., 354 So.2d 8 (1977). There Judge Bradley wrote:

The language of Rule 59.1 requires express consent. And the law has long recognized a material distinction between “assent” and “consent,” the former meaning passive or submissive conduct while the latter involves positive action, [citation omitted] In the instant case counsel for appellee did not take positive steps to express in a direct and unequivocal manner that he was willing to extend the 90 day period nor did his assent to the continuation of the proceedings constitute a waiver of the requirement of express consent.

If we were to hold otherwise this Court often might be left to sheer guesswork in determining whether we had jurisdiction of a case. Further, it would in effect allow the very practice which Rule 59.1 was meant to end, that is the pendency of post-trial motions — and therefore the litigation — for indefinite periods of time. See State v. Wall, Ala., 348 So.2d 482 (1977). We hold therefore that the 42-day period of Rule 4, ARAP began to run on July 25, 1. e., 90 days from the filing of the post-trial motion(s). The period within which notice of appeal would have been timely was therefore ended on September 4, 1978. Because the appellant’s notice of appeal was not filed until September 20, 1978 we are without jurisdiction in this case.

APPEAL DISMISSED.

TORBERT, C. J., and BLOODWORTH, FAULKNER, ALMON, SHORES and EM-BRY, JJ., concur.

MADDOX and JONES, JJ., dissent.

MADDOX, Justice

(dissenting).

Harrison, in opposition to the motion to dismiss his appeal as being untimely, has filed three affidavits, one by the Power Company attorney, one by the judge’s secretary, and one by his attorney. Appendix A, B, and C. Each affiant states that the parties consented to the continuance of the Motion for Judgment Notwithstanding the Verdict and New Trial.

Rule 59.1 was designed to force the trial judge to rule on post-trial motions. It was not designed as a trap by which a party could “consent” to a continuance, and then raise, by motion to dismiss, that the appeal was not timely.

Admittedly, the rule requires that “consent (of all the parties) shall appear of record,” but it does not say who is responsible for making sure the consent is in the record. Today’s decision obviously places the responsibility on the appellant.

The judge’s secretary stated in her affidavit that the May 9, 1978, Order in the record was the type she entered when all parties consented.

Rule 1, ARCP, states that the civil rules are to be construed “to secure the just, speedy and inexpensive determination of every action.” I believe today’s decision is too technical, and, therefore, unjust.

JONES, J., concurs.

EXHIBIT “A”

STATE OF ALABAMA,

HOUSTON COUNTY.

G. M. Harrison, being first duly sworn, deposes and says:

1. That I, G. M. Harrison, do hereby certify that I was and am an attorney for Alabama Power Company, Appellee, in the present appeal by John E. Harrison, Appellant, of a verdict rendered in the Circuit Court of Houston County, Alabama, on March 28, 1978. I was an Attorney of Record in this case from the initial answer filed in response to his Complaint in the Trial Court through the hearing by the Trial Court of his Motion For Judgment Notwithstanding the Verdict and Motion For a New Trial.

2.I further certify that on or about May 8, 1978, I was contacted by Debbra Jennings, secretary to Honorable Forrest L. Adams, Circuit Judge of Houston County, Alabama, in regard to a hearing on a Motion For Judgment Notwithstanding The Verdict and Motion For a New Trial filed by John E. Harrison, Appellant, in the Trial Court, and which was set for hearing on May 9, 1978, at 11:00 A.M. Mrs. Jennings told me that Judge Adams was continuing to have problems with his current illness and would not be able to be in his office on May 9,1978, to hear the Motions referred to herein. At that time, I consented to a continuance of the hearing on the Motion For Judgment Notwithstanding the Verdict and Motion For a New Trial and consented to the Court setting the hearing at a future date. Subsequently, I received notice of the new hearing date.

Dated this the 9th day of February, 1979. (s) G. M. Harrison

Subscribed and sworn to before me on this the 9th day of February, 1979.

(s) Marv Jane Wells NOTARY PUBLIC My Commission Expires: 7-16-81

EXHIBIT “B”

STATE OF ALABAMA,

HOUSTON COUNTY.

Debbra Jennings, being first duly sworn, deposes and says:

1. That I was a secretary to Honorable Forrest L. Adams, Circuit Judge, Twentieth Judicial Circuit on May 9, 1978.

2. That on or about May 9,1978,1 called G. M. Harrison and John E. Byrd about continuance of a Motion For Judgment Notwithstanding the Verdict and New Trial hearing set for May 9, 1978, at 11:00 A.M., wherein John E. Harrison was Plaintiff and Alabama Power Company was Defendant. I further remember a conversation with both attorneys about this continuance but do not clearly remember the substance of the conversations.

3. That I wrote the order that appears of record on May 9, 1978, wherein the case was continued generally as a result of my conversations with G. M. Harrison and John E. Byrd.

4. That I know this particular order would not have been written in the manner it was written unless and until both parties had been contacted and made some affirmative response to my call regarding the continuance.

5. That I know that this is the type Order (the May 9, 1978 order of record) that is written by Judge Adams when both parties request a continuance or when a continuance is consented to by both parties.

Dated this the 9th day of February, 1979. (s) Debbra Jennings

Subscribed and sworn to before me on this the 9th day of February, 1979.

(s) Betty Sue Brown NOTARY PUBLIC My Commission Expires: 7/6/81

EXHIBIT “C”

STATE OF ALABAMA,

HOUSTON COUNTY.

John E. Byrd, being first duly sworn, deposes and says as follows:

1. That I am the attorney of record for the Appellant, John E. Harrison, in Case Number 77-795, presently on appeal and before this Court. I further certify that I have represented the Appellant (Plaintiff) in this matter in the trial from the inception of the lawsuit to the present day.

2. I further certify that Debbra Jennings, secretary to Honorable Forrest L. Adams, Circuit Judge, Twentieth Judicial Circuit of Alabama, contacted me by telephone on or about May 8, 1978, regarding a hearing on a Motion For Judgment Notwithstanding the Verdict and New Trial in the above referred to case in the Trial Court, which was set for hearing on May 9, 1978, at 11:00 A.M. Mrs. Jennings informed me that Judge Adams was having more trouble with his heart and that he could not be in to hear the motions and did I want them heard by another Judge or set on a subsequent date. I informed her that it would be perfectly alright with me if they were set forward because Judge Adams had heard the case and one of my motions was a Motion For Judgment Notwithstanding the Verdict and that would best be heard by the Judge who originally tried the case. I then explicitly informed her that she should call G. M. Harrison, the attorney for Appellee, as he must consent to a general continuance and to the Trial Court resetting the hearing when Judge Adams returned. I also told her to call me back and inform me if he consented to the general continuance and to the Court resetting the hearing date when Judge Adams returned to his office. Mrs. Jennings called me back and informed me that G. M. Harrison had consented, in behalf of the Appel-lee, to the general continuance and to the Trial Court resetting the hearing date when Judge Adams returned. She then informed me that she would write an Order to that effect, which she did and which is dated May 9, 1978, wherein the case was continued generally. Subsequent thereto, Judge Adams returned to active work and on June 21, 1978, I received an Order of the Court that the Motion For Judgment Notwithstanding the Verdict and New Trial would be heard on August 9, 1978, at 10:00 A.M. On August 9, 1978, the motions were heard and acted upon by Judge Adams.

Dated this the 12th day of February, 1979.

(s) John E. Byrd

Subscribed and sworn to before me on this the 12th day of February, 1979.

(s) Betty Sue Brown NOTARY PUBLIC My Commission Expires: 7/6/81

      . We pretermit any discussion of that court’s implication that a party might waive a jurisdictional requirement of this Court.


author: FAULKNER, Justice. BLOODWORTH, Justice

text:
    Bertha J. BARDIN v. Wilson JONES.
    77-646.
    Supreme Court of Alabama.
    May 18, 1979.

      W. Michael Young, Montgomery, for appellant.
    Ira Dement, Montgomery and J. Fletcher Jones, Andalusia, for appellee.
   FAULKNER, Justice.

The will of Minnie Faler was filed for probate by her executor but was contested by Bardin, a sister, and several others on the ground of undue influence. The case was transferred to circuit court for a jury trial where the circuit limited the issues to those raised in the probate court. At the close of contestants’ case the court directed a verdict for the proponents from which Bardin alone appeals. We reverse and remand for further proceedings.

Minnie Faler, a childless widow of 91, died on July 13, 1977, leaving a will dated June 10,1977. She had previously executed wills in January, 1977, and March, 1977. The January and March wills both divided the estate equally among her brother and sisters, but the June will left the lion’s share to one sister, Cora Plant, with hefty bequests to some of Faler’s nieces. The shares of her brother and other sisters were significantly reduced. The June will named Wilson Jones, an accountant, as executor. While Wilson Jones was not a beneficiary under the will, his wife, Jean, is one of the nieces who will profit handsomely under the June will and who would not have taken under the earlier wills.

Prior to March, 1977, Faler lived in Andalusia where she was cared for by her sister, Bertha Bardin (the appellant). In March Faler moved to an apartment in Florala two doors from another sister, Cora Plant. There was testimony that Cora Plant, Jean Jones, and several others did not want Faler in Florala, apparently due to an old enmity. They did, however, become friendly after the move.

In March Faler’s business affairs were taken over by Wilson Jones. She executed a general power of attorney in his favor and substituted him as executor in her March will. He inventoried her assets and found them to be about $81,000.

In May after she suffered a fall Faler moved in with Cora Plant. A house was purchased with Faler’s funds, the deed listing Faler and Cora Plant as joint tenants with right of survivorship. There was testimony that Faler did not know of the surviv-orship provision.

In June a new will was drafted by attorney Fletcher Jones (no relation to Jean and Wilson Jones), based on discussions among Faler, Cora Plant, Jean and Wilson Jones, and others who became beneficiaries. The will was witnessed by Fletcher Jones and his secretary, with Wilson Jones and Cora Plant present at the drafting conference. Percentage shares in the June will were prepared by Wilson Jones. At trial witnesses testified that several of the favored beneficiaries bragged to others about their influence on Faler and the drafting of the will. Testimony on Faler’s mental capacity throughout these months was in sharp conflict. The contestants’ case included considerably greater detail on the relationships between Faler and her relatives, much of which was denied by the proponents of the will. Of course, the credibility of the various witnesses would have been a question for the trier of facts.

On appeal Bardin urges three grounds for reversal. First, Bardin states that the circuit court erred in striking certain paragraphs in contestants’ answers relating to testamentary capacity. In doing so the court stated that it was limited to those issues transferred to it by the probate court, citing Hooper v. Huey, 293 Ala. 63, 30 So.2d 100 (1974). In Hooper we discussed § 43-1-78, Code 1975 (formerly Tit. 61, § 63, Code 1940), which provides for the transfer of a will contest to circuit court for a jury trial. That section states:

“Upon the demand of any party to the contest, made in writing at the time of filing the initial pleading, the probate court, or the judge thereof, must enter an order transferring the contest to the circuit court of the county in which the contest is made, and must certify all papers and documents pertaining to the contest to the clerk of the circuit court, and the case shall be docketed by the clerk of the circuit court and a special session of said court may be called for the trial of said contest or, said contest may be tried by said circuit court at any special or regular session of said court. The issues must be made up in the circuit court as if the trial were to be had in the probate court, and the trial had in all other respects as trials in other civil cases in the circuit court. . . . After a final determination of the contest, the clerk of the circuit court shall certify the transcript of all judgments of the circuit court in such proceedings, together with all of the papers and documents theretofore certified to the circuit court by the probate court, back to the probate court from which they were first certified to the circuit court, and thereafter shall be recorded in the probate court as all other contested wills are recorded in the probate court.”

This provision must be read in conjunction with § 43-1-70, Code 1975 (formerly Tit. 61, § 52, Code 1940) which provides:

“A will, before the probate thereof, may be contested by any person interested therein, or by any person, who, if the testator had died intestate, would have been an heir or distributee of his estate, by filing in the court where it is offered for probate allegations in writing that the will was not duly executed, or of the unsoundness of mind of the testator, or of any other valid objections thereto; and thereupon an issue must be made up, under the direction of the court, between the person making the application, as plaintiff, and the person contesting the validity of the will, as defendant, and such issue must, on application of either party, be tried by a jury.”

In Hooper we stated, “The circuit court may consider only those issues transferred to it from the probate court and the resolution of these issues must be certified back to the probate court,” citing what is now § 43-1-78. We are now presented with the question of whether or not a Rule 15, ARCP amendment or similar addition to the pleadings is permissible in the circuit court.

Initially we note that the Rules of Civil Procedure specifically apply to will contests “to the extent that the practice is not provided by statute.” Rule 81(a)(5), ARCP. In addition § 43-1-74, Code 1975, provides:

“For the trial of such contest, depositions of witnesses may be taken in like cases, for the same causes and in the same manner, as depositions are taken in civil actions in the circuit court. In all matters relating to the organization and impaneling of the jury, to the evidence, mode of proceeding and investigation and determination of such contest, not specially provided for by this article, the court shall proceed and be governed by the same rules and regulations, so far as applicable, as prevail in courts of law in civil cases.”

This section is further reinforced by § 43-1-78 itself which states, “The issues must be made up in the circuit court as if the trial were to be had in the probate court, and the trial had in all other respects as trials in other civil cases in the circuit court.” In reference to this latter provision it has been observed, “ ‘The issue should be made up under the direction of the court on proper pleas specified in the contest as directed in [§ 43-1-70]. . . Parties to a cause are entitled to know in advance of trial what issues are to be met.’ ” Thigpen v. Walker, 251 Ala. 426, 37 So.2d 923 (1948), quoting Mindler v. Crocker, 245 Ala. 578, 18 So.2d 278 (1944). Thigpen went on to provide:

“It is also settled that in the trial of the issues of the contest certified out of the probate court to the circuit court under [§ 43-1-78] that the jurisdiction conferred on the circuit court is statutory and limited, and to warrant the exercise of that jurisdiction there must be pending in the probate court a valid contest when the probate court or the judge thereof enters the order transferring the contest to the circuit court. ...
“While it is well settled that the proceeding in the probate court to probate a will is in rem, it is clear from the provisions of the statute authorizing the removal of a contest to the circuit court, a court of law, that the proceedings in that court are inter partes and in personam to be tried and disposed of as other civil actions at law.
* * * * *
“The jurisdiction and authority of the circuit court is limited to the trial of the issues presented by the contest after which the case must be certified back to the probate court.”

Prom the above-cited authorities it is clear that the probate court prior to transfer could allow additional issues to be presented to it in accordance with the Rules of Civil Procedure, so long as those issues could properly be raised in a will contest. It may often happen that viable issues will not be revealed until depositions are taken, as is specifically authorized under § 43-1-74, supra. Consequently, we see no justifiable reason to limit the parties in the presentation of their ease simply because the contest has already been transferred. Such a ruling would herald a return to the abandoned practice of “trial by battle” and would be an anachronism in a legal system in which the avowed purpose of procedural rules is “to secure the just, speedy and inexpensive determination of every action.” In short we now hold that the circuit court following transfer of a will contest to it under § 43-1-78 can consider any issues presented in an appropriate pleading under the Rules of Civil Procedure, provided those issues can properly be raised in a will contest. Any language to the contrary in Hooper v. Huey is disapproved. Thus the circuit court erred in striking the paragraphs in contestants’ answers relating to testamentary capacity.

Next Bardin asserts that the court should not have directed a verdict in favor of the proponents on the issue of undue influence. We agree.

“Our cases have consistently held that when undue influence is asserted in a will contest, the contestant has the burden, in order to raise a presumption of undue influence, to prove a dominant confidential relationship and undue activity in the execution of the will by or for a favored beneficiary. ... In other words, evidence must establish: (1) a confidential relationship between a favored beneficiary and testator; (2) that the influence of or for the beneficiary was dominant and controlling in that relationship; and (3) undue activity on the part of the dominant party in procuring the execution of the will.” Pruitt v. Pruitt, 343 So.2d 495 (Ala. 1976).

In order to survive a motion for directed verdict the contestant must present a scintilla of evidence on each of these issues. Rule 50(e), ARCP; Rabon v. Rabon, 360 So.2d 971 (Ala. 1978); Loeb and Co., Inc. v. Martin, 295 Ala. 262, 327 So.2d 711 (1976); Reed v. Shipp, 293 Ala. 632, 308 So.2d 705 (1975). The evidence is, of course, viewed in the light and with all reasonable inferences most favorable to the non-moving party, Loeb, supra, and circumstantial evidence may be used to prove undue influence. Reed, supra. Here it is clear that a scintilla of evidence was presented on each of the three elements of undue influence. There was testimony that Faler relied on several of the proponents to manage her personal and business affairs during the last months of her life. Cora Plant lived with and cared for Faler. Jean Jones was seen helping Faler sign checks while her husband, Wilson Jones, had complete control of Faler’s business affairs, including a general power of attorney. There was testimony that some of the proponents bragged about their control over Faler and tried to prevent other relatives from influencing her. Finally, it was uncontroverted that several of the favored beneficiaries were present when the will was drawn and assisted extensively in its drafting, to the exclusion of the contestants. From these facts it is readily apparent that a jury could have found that undue influence was exerted by the proponents in the procurement of the will. The granting of a motion for directed verdict was improper and the case must be remanded for consideration by a jury.

Finally, Bardin contends that the trial court erred in not requiring the proponents to call both attesting witnesses. Difficulties arose over this point because Fletcher Jones, the attorney who drew and witnessed the will, also represented the proponents in the will contest. There was extensive discussion of the propriety of Fletcher Jones testifying and the scope of examination he could be subjected to. The trial court finally ruled that contestants could call him for limited examination if they wished, but contestants declined to do so. While it is true that the burden is on the proponent of a contested will to prove the will by both subscribing witnesses or account for their unavailability, Culver v. King, 362 So.2d 221 (Ala. 1978), Ferrell v. Minnifield, 275 Ala. 388, 155 So.2d 345 (1963), any error here was waived by the contestants. Consequently, we make no determination of the propriety of the trial court’s ruling in this regard.

Because the circuit court erred both in striking contestants’ allegations of lack of testamentary capacity and in granting a directed verdict in favor of proponents, the cause is reversed and remanded for further proceedings.

REVERSED AND REMANDED.

ALMON and EMBRY, JJ., concur.

BLOODWORTH, J., with whom TOR-BERT, C. J., concurs, concurs specially.

BLOODWORTH, Justice

(concurring specially).

I concur in Mr. Justice Faulkner’s opinion to reverse and remand this cause because the trial court erred in not submitting the issue of undue influence to the jury.

I had first thought that I could not agree with the other conclusion reached in the opinion, that after transfer from the probate to the circuit court of a will contest the grounds of contest could be amended to include additional grounds. I have now concluded that Justice Faulkner’s rationale is sound and that there is no justifiable reason to limit the parties in their presentation of the case after transfer to the circuit court to those issues of the contest originally filed in the probate court. Of course, a valid contest must first be filed in the probate court, after a will is offered for probate, before the right would exist to have the contest transferred to the circuit court upon the demand of any party to the contest. Code 1975, § 43-1-78.

I think the trial court in striking the issue of “testamentary capacity” and in stating that it was limited to the issues transferred to it by the probate court, citing Hooper v. Huey, 293 Ala. 63, 300 So.2d 100 (1974), misinterpreted the language in Hooper v. Huey. In that case Mr. Justice Merrill, writing for this Court, stated:

“The circuit court may consider only those issues transferred to it from the probate court . . . .”

The trial judge took this to mean that only the grounds of contest alleged and specified in the probate court could be the basis for the contest in the circuit court. I do not believe that this is so. What Mr. Justice Merrill wrote in Hooper v. Huey was that a circuit court had no jurisdiction to consider the contest of two wills, offered by an amendment to an existing will contest, by which it was sought to contest the two additional wills on the grounds of undue influence, when the two additional wills were produced but never “offered” for probate in the probate court. In other words, under our statute, a will must have been “offered” for probate before it can be contested in either the probate or the circuit court. This not having been done, the contestant could not contest the two wills in an existing will contest in the circuit court. In this, Mr. Justice Merrill was eminently correct. He goes on to point out that the court would not leave the contestant remediless but that contestant could “offer” the additional wills for probate, then transfer the same to the circuit court, and, under Rule 42(a) of the Alabama Rules of Civil Procedure, the several will contests could be consolidated. Then, he discusses how the parties could be aligned and realigned under Rules 19 and 20 ARCP so as to promote trial convenience, prevent a multiplicity of suits, and expedite the litigation.

I see nothing in Hooper v. Huey which impinges upon the right of either proponent or contestant, upon removal of a contest to the circuit court, to amend the pleadings in that court under the authority of Code 1975, § 43-1-78, which states that the trial should be had in the circuit court upon the removal of a contest “in all other respects as trials in other civil cases in the circuit court.”

It is therefore that I concur in the opinion.

TORBERT, C. J., concurs.