author: MADDOX, Justice.

text:
    In re D. L. MARTIN, Jr. v. LOEB AND COMPANY, INC. Ex parte LOEB AND COMPANY, INC.
    SC 2390.
    Supreme Court of Alabama.
    Aug. 12, 1977.
    Norman W. Harris, Decatur, for petitioner.

      W. H. Rogers, Moulton, for respondent.
   MADDOX, Justice.

This is an original Petition for Mandamus to compel the trial judge to tax the costs against the losing party in a prior appeal.

On February 20,1976, this Court reversed and remanded a directed verdict granted by the trial court to the plaintiff, D. L. Martin, Jr. Loeb and Co., Inc. v. Martin, 295 Ala. 262, 327 So.2d 711 (1976). That decision ordered Martin to pay the cost of the appeal to the petitioner, Loeb. On March 15,1976, Loeb served a motion to tax Martin with the cost of the court reporter’s transcript, asserting that this was one of the costs of his successful appeal.

A hearing on the motion was set on the 18th day of August, 1976. At that time, the motion was taken under advisement. Subsequently, the case was re-tried, and the jury rendered a verdict in favor of Martin. Loeb then filed a motion for a new trial, which was set for hearing on November 24, 1976.

Loeb again gave notice that he would seek a ruling on his motion to tax costs during the new trial proceedings. At that time, the trial judge, respondent in this case, declined to rule on the motion to tax costs of the transcript until final disposition of the original civil action.

There is no controversy as to the facts. What the petitioner seeks is the issuance of a writ of mandamus to compel the trial judge to enter an order taxing costs of the transcript to Martin.

Mandamus is a drastic and extraordinary writ. Folmar v. Brantley, 238 Ala. 681, 193 So. 122 (1939). To grant an individual a writ of mandamus, there must be (a) a clear legal right in petitioner to the order sought, (b) an imperative duty upon the respondent to perform accompanied by a refusal to do so, (c) a lack of another adequate remedy, and (d) the jurisdiction of the court must be properly invoked. Ex parte Sykes, 44 Ala.App. 473, 213 So.2d 413 (1968).

The trial judge contends that he has not refused to act, and that mandamus does not lie because there must be a refusal by the trial court to act on an imperative legal duty. He reasons that this ruling merely postponed any action until a final disposition of the original action.

We cannot agree with the trial judge. Costs of an appeal, both in this Court and in the lower courts, become payable when a judgment is rendered and no application for rehearing is filed or an application has been denied. A judgment of this Court, ordering a party to pay the cost of appeal, is final. Childress v. Younger, 258 Ala. 219, 61 So.2d 808 (1952). Thus, unless this Court orders otherwise, when a judgment is reversed, costs shall be taxed against the appellee. ARCP Rule 35(a).

Ex parte General Mutual Insurance Co., 285 Ala. 445, 233 So.2d 230 (1970), is controlling here. In that decision, this Court pointed out that the fees of the reporter are to be taxed as part of the costs of an appeal. 285 Ala. at 448, 233 So.2d 230; Title 7 § 827(2), Code of Alabama 1940. The petitioner followed closely the procedure set forth by that decision. Not only did Loeb file a motion requesting the taxing of costs but the motion was accompanied by an affidavit of the court clerk setting forth the amount paid as well as the reasonableness thereof. Thus, the petitioner had done everything in its power legally to secure payment of costs by Martin without success. Its only remaining remedy was to seek mandamus from this Court.

The trial court’s refusal to grant the order for costs until a final determination of this cause violated the petitioner’s clear legal right to reimbursement. For these reasons, unless upon receipt of this opinion by the respondent judge, an order is entered within 14 days taxing costs of the proceedings and transcript to Martin, a peremptory writ of mandamus will be awarded.

PEREMPTORY WRIT CONDITIONALLY AWARDED.

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

FAULKNER, J., dissents.


source: Caselaw Access Project

license: Public Domain

text:
    LOEB AND COMPANY, INC., a corporation v. D. L. MARTIN, Jr.
    SC 2260.
    Supreme Court of Alabama.
    Aug. 12, 1977.
    Rehearing Denied Sept. 9, 1977.
    Norman W. Harris and William E. Shinn, Jr., Decatur, for appellant.
    W. H. Rogers, Moulton, for appellee.
   MADDOX, Justice.

Plaintiff, D. L. Martin, Jr., a cotton producer, brought an action on a contract against defendant, Loeb and Company, Inc., a cotton buyer, seeking to recover the difference between the market value and the stated contract price of that portion of plaintiff’s 1973 cotton crop delivered to defendant under protest and with reservation of rights. § 1-207, Title 7A, Code of Alabama 1940 (Recomp.1958). This is the second time this case has been here.

In the first trial, the trial court directed a verdict for the plaintiff. This Court reversed and remanded, holding that “[W]hether there was a custom and usage of trade was a question of fact for the jury to determine, under the present conditions. Cf. Official Comment to U.C.C. § 1-205, and Anderson’s Uniform Commercial Code, § 1-205-6, p. 175.” Loeb and Co., Inc. v. Martin, 295 Ala. 262, 327 So.2d 711 (1976). This case was re-tried and the jury found for the cotton producer. Appellant, cotton buyer, frames the issues as follows:

“1. Where a written memorandum of an agreement for the sale of goods is ambiguous as to the quantity of goods to be delivered under the agreement and the court admits evidence of usage of trade and course of dealing and submits to the jury the question of what the parties intended with reference to the quantity of goods to be delivered under the agreement, is it error for the court to instruct the jury that if it can determine such intention by merely reading the written memorandum of such agreement, it need not consider the evidence of usage of trade and course of dealing?
“2. Where the court instructs the jury, without further explanation, that it should construe a written memorandum of an agreement for the sale of goods against the party who prepared it, is it error for the court to refuse an explanatory instruction requested by the party who prepared the memorandum that such rule of construction is not to be applied if the jury can determine the intention of the parties after considering all of the evidence, including the written memorandum and evidence as to course of dealing, usage of trade and the situation of the parties at the time the agreement was entered into?”

The appellant’s framing of the issues leaves but one legal question: Did the trial court commit prejudicial error while instructing the jury or in failing to give requested instructions? We think not. The refusal of the requested written instruction is governed by Rule 51 of A.R.C.P., which provides, in part:

“ . . . Every oral charge shall be taken down by the court reporter as it is delivered to the jury. The refusal of a requested, written instruction, although a correct statement of the law, shall not be cause for reversal on appeal if it appears that the same rule of law was substantially and fairly given to the jury in the court’s oral charge or in charges given at the request of the parties . . . .”

We have read the entire charge given by the court in addition to the requested charges and we find no reversible error. Rule 61, A.R.C.P.; Rule 45, A.R.A.P. Also, see Alabama Power Co. v. Mosley, 294 Ala. 394, 318 So.2d 260 (1975).

The facts causing the dispute are substantially set out in this Court’s first opinion of Loeb v. Martin, 295 Ala. 262, 327 So.2d 711 (1976).

When the case was re-tried, the court allowed considerable evidence concerning prior dealings between Loeb and Martin, as well as evidence of custom and usage of the trade. In fact, a reading of the entire record indicates that the parties directed most of their efforts to showing the establishment or nonexistence of a common understanding of the term “All cotton produced on 400 acres.” Loeb introduced the testimony of several witnesses, most having been in the business of buying and dealing with cotton for many years, who testified that in 1973 it was commonly understood that an acre of “skip row” cotton would produce less yield than an acre of “solid” row cotton. Martin rebutted this- evidence with the testimony of numerous local farmers who testified that to their knowledge, an “acre was an acre.” There was some evidence from which the jury could find that the “forward” contract arrangement entered into between Martin and Loeb in 1973 was a relatively new method of selling cotton in North Alabama. Furthermore, the testimony showed that the actual definition of “skip row” patterns and the ultimate yield it produced varied, depending on the number of inches one left between the rows.

At the close of the evidence, the trial judge charged the jury, placing emphasis on the fact that if the contract clearly showed the intent of the parties, then there was no necessity for the jury to consider course of dealing and custom and usage of the trade.

We think it unnecessary to set out at length the court’s oral charge, and the defendant’s requested written charges which were refused. We do point out, however, that after reading the entire record and the facts that were before the court, as well as the judge’s instructions, we are convinced that no prejudicial error is present. The court’s charge allowed the jury to consider all the evidence, including the express terms of the contract, the prior course of dealing and usage of the trade to determine what the parties had agreed upon. In fact, the trial judge read to the jury a charge submitted by Loeb which correctly stated the applicable law and which charge was substantially similar to other requested instructions the trial judge refused to give. Consequently, we find no prejudicial error. Rule 45, A.R.A.P.

The trial judge did not err in charging the jury that a contract should be construed more strongly against the maker. That is the law. Jewell v. Jackson & Whitsitt Co., 294 Ala. 112, 313 So.2d 157 (1975). Therefore, under the facts of this case, the refusal of explanatory charges is not error. Norris v. Presley, 292 Ala. 155, 290 So.2d 643 (1973); Alabama Power Co. v. Mosley, supra.

AFFIRMED.

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


author:
FAULKNER, Justice.
      TORBERT, Chief Justice

text:
    Billy Dwight JARRETT v. SHELBY COUNTY BOARD OF EDUCATION et al.
    SC 2519.
    Supreme Court of Alabama.
    Aug. 12, 1977.
    Rehearing Denied Sept. 9, 1977.
    Joseph E. Carr IV, Montgomery, for appellant.
    Conrad M. Fowler, Oliver P. Head and Karl C. Harrison, Columbiana, for appel-lees.
   FAULKNER, Justice.

Billy Dwight Jarrett, a non-tenured school teacher appeals from a decree holding that he had unconditionally resigned his employment by the Shelby County Board of Education. We affirm the trial court.

Jarrett, a graduate of the University of North Alabama, was employed by the Board for the 1975-76 school year as a non-tenured teacher and assistant coach at Thompson High School. He had previously taught and coached at Mortimer Jordan High School. Jarrett, a high tempered person, received complaints during the 1975-76 athletic season, from the school principal and some of the parents for his brutality toward the young athletes. In one instance he hit a young football player on the side of his helmet, knocking him to the ground. A similar incident occurred at another game causing the fans to boo him. On another occasion, Jarrett threw a baseball bat into the dugout where players were seated.

In addition to his one-sided pugilistic encounters with the young players, Jarrett was told by the school principal that he, the principal, was dissatisfied with his school performance. In a meeting with Jarrett, the principal told him that he intended to recommend non-renewal of his contract for the 1976-1977 school year. The reasons given by the principal, among others, were the incidents at the athletic events, Jarrett’s numerous absences from his teaching station, his neglect of classes, his lack of cooperation with the head coach, complaints from parents, and the use of profanity in the presence of young ball players. Given an opportunity of resigning or being fired, Jarrett chose to resign. However, Jarrett contends that his resignation was conditioned upon his finding employment with another school. The principal and the Board contend that Jarrett resigned unconditionally; that he was permitted to resign as an act of graciousness because “being fired” would look bad on his record.

Jarrett did not find employment at another school, but he did tell every school to which he applied that he had resigned from Thompson. When form notices of Teacher Institute Day were sent to the Shelby County teachers for 1976-1977 school year, Jarrett erroneously received one. Although his receiving a notice was in error, Jarrett now says that by receiving the form notice, he was employed for the coming year; that his resignation had not been accepted. Meanwhile, the Board had employed a replacement for Jarrett, and this, says the Board, constituted its acceptance.

The evidence is clear that Jarrett intended to resign rather than having “fired,” “dismissed” or some other unflattering word appear on his record. And the evidence also shows that his resignation, under the circumstances, was unconditional. Jarrett cannot look to T. 52, § 361(2), Code of Alabama for shelter. That security blanket was swept away by his resigning. Upon his resignation, he was not entitled to any notice of non-renewal of his contract. Giving notice would have been a useless gesture of the Board. So, under the facts, we opine that T. 52, § 361(2) has no relationship to this case. This leads to the threshold question, was his resignation accepted by the Board? We answer yes. By employing a teacher to replace Jarrett, the Board impliedly accepted Jarrett’s resignation. Cf. 78 CJS Schools and School Districts § 206, p. 1102. Board of School Commissioners of City of Indianapolis v. State, 211 Ind. 257, 5 N.E.2d 307.

AFFIRMED.

BLOODWORTH, JONES, ALMON, EM-BRY and BEATTY, JJ., concur.

TORBERT, C. J., MADDOX and SHORES, JJ., dissent.

TORBERT, Chief Justice

(dissenting):

I respectfully dissent.

I do not agree with the majority that the provisions of Tit. 52, § 361(2) Code of Alabama 1940 (Recomp.1958) are inapplicable to the facts of this case. To the contrary, § 361(2) provides the statutory means by which teacher contracts are canceled and renewed in this state. I would therefore hold that this case is due to be reversed because of the employing school board’s total failure to comply with the mandatory non-renewal procedures of § 361(2), i. e., no written notice of non-renewal was given to Jarrett on or before the last day of the school term.

A teacher may, of course, seek to terminate his employment by a voluntary resignation. However, in order to be effective, such resignation must be accepted and acted upon by the employing board of education which has exclusive authority to employ teachers and terminate contracts of employment. 78 C.J.S. Schools and School Districts § 206 (1952). In Marshall County Board of Education v. Baugh, 240 Ala. 391, 199 So. 822 (1941), a class action suit seeking reinstatement of discharged teachers, this court held in granting the relief sought:

“[T]he ‘employing board’ is the County Board of Education and if the teacher is not to be retained for another year such teacher has the right to expect that such matter be determined upon the judgment of the County Board, as expressed in its written memorials and at a meeting where the board acts as a board and not as individuals. [Citing, Board of Education of Escambia County v. Watts, 19 Ala.App. 7, 95 So. 498 (1922)]. Such a meeting presupposes consultation and discussion — a deliberative body looking to the best interest of the school system with due regard likewise for justice and fairness to the teachers.” (Emphasis supplied). 240 Ala. at 395-96, 199 So. 825.

In summary, the employing school board’s obligation of notice of non-renewal was not suspended by the resignation of Jarrett because no formal action of accept-anee of the resignation was ever taken by the board. The majority implies this acceptance by the employment of a replacement for Jarrett. However, there was no evidence that the board relied upon the resignation of Jarrett in hiring the new teacher. More must be done to waive the formalities of § 361(2) concerning non-renewal than a mere oral declaration of resignation given to a principal who has no authority to accept such a resignation.

Section 361(2) also speaks to the obligation of a teacher that:

“[S]uch teacher shall be presumed to have accepted such employment [for the upcoming school year] unless he, or she, shall notify the employing board of education in writing to the contrary on or before the fifteenth day of June.” [Emphasis supplied].

The record is clear that this event did not occur. Accordingly, Jarrett would have been obligated to fulfill his teaching duties during the next school year.

MADDOX and SHORES, JJ., concur.

I would therefore hold that under the facts and the law Jarrett was deemed offered reemployment for the succeeding school year and was obligated to accept such employment and perform his teaching duties.

      . § 361(2). Teacher deemed reemployed for succeeding school year unless notified. — Any teacher in the public schools, whether in continuing service status or not, shall be deemed offered reemployment for the succeeding school year at the same salary, unless the employing board of education shall cause notice in writing to be given said teacher on or before the last day of the term of the school in which the teacher is employed; and such teacher shall be presumed to have accepted such employment unless he, or she, shall notify the employing board of education in writing to the contrary on or before the fifteenth day of June. The employing board of education shall not cancel the contract of any teacher in continuing service status, nor cause notice of nonemployment to be given to any teacher whether in continuing service status or not except by a vote of majority of its members evidenced by the minute entries of said board made prior to or at the time of any such action.


author: JONES, Justice.

text:
    Everett L. ALMON v. CHAMPION INTERNATIONAL CORP., a corporation.
    SC 1939.
    Supreme Court of Alabama.
    Aug. 19, 1977.

      L. Drew Redden of Rogers, Howard, Redden & Mills, Birmingham, for appellant.
    J. Robert Fleenor and Samuel H. Franklin, Birmingham, for appellee.
   JONES, Justice.

This appeal brings for review the decree of the Circuit Court of St. Clair County granting Champion International Corporation’s motion for partial summary judgment on the issue whether Everett L. Almon acquired any title to the land in question by reason of a prior tax sale. In passing on the propriety of that decree, we consider all the facts in a light most favorable to appellant. Loveless v. Graddick, 295 Ala. 142, 325 So.2d 137 (1975).

The facts surrounding this litigation involve certain undeveloped timberland situated in St. Clair County. The property was owned on September 13, 1947, by Mr. and Mrs. J. L. Truss. On that date, through power of attorney given M. 0. Liles, they conveyed the property to another grantee through whom Champion derives its title. On October 1, 1947, seven days before that deed of conveyance was recorded, the State assessed ad valorem taxes against the property in the name of J. L. Truss. The Trusses, no longer claiming an interest in the property, failed to pay the taxes and, as a result, on May 24, 1949, the land was sold for delinquent taxes and bought in by the State.

Almon purchased this property from the State Land Commissioner on February 20, 1974, for the sum of $401.00. Three months after that purchase, Champion filed this action in Circuit Court to have title to the property quieted in itself. The dispositive issue here presented is whether the trial Judge erred in finding Almon’s tax deed void as a matter of law. We affirm.

The State’s power to recover delinquent taxes through a sale of the taxpayer’s property is derived solely through statute. The purpose of such a procedure is only to provide a means by which the State can receive its due. The methods it employs are intended primarily to coerce the unwilling (or inadvertent) taxpayer to pay his taxes, not to strip him of his property. 85 C.J.S. Taxation § 744. More often than not, however, where a sale is effected, it results in a substantial forfeiture of the taxpayer’s property because the value of such property almost always exceeds the amount of taxes owed. Accordingly, the Court will be quick to protect the rights of the taxpayer. Napier v. City of Springfield, 304 Mass. 174, 23 N.E.2d 157 (1939).

Such predilections, however, must give way at some point to the rights of the purchaser at the tax sale or subsequent purchaser from the State. He stands as equally innocent, having been induced by the State to rely on the muniments of title which it has to sell. Often the irregularities which could ultimately defeat his title lay concealed in places no amount of caution could discover.

Out of respect for such rights, the legislature has provided a beacon light by which the purchaser at a tax sale can be assured he has found a “safe harbour.” This it does through the special short statute of limitations which enables the purchaser, who enters into adverse possession for a period of three years, to acquire good title without regard to the deficiencies underlying the proceedings. Tit. 51, § 295, Code.

It appears from the record before us that Almon first acquired his tax deed on February 20,1974. A few months later, Champion instituted this action and thereby foreclosed any possibility that Almon could perfect a good title under the three year statute. If Almon is to prevail, it must be on the strength of the title he acquired from his tax deed.

A tax deed is void and conveys no interest where the underlying sale was invalid. Landrum v. Davidson, 252 Ala. 125, 39 So.2d 662 (1949). Where taxes are assessed to one who has no interest in the property, a subsequent sale of the property for nonpayment of taxes is void because, under these facts, as here, the true owner would receive no notice of the proceedings against his property. Tit. 51, § 252, Code; State v. Graham, 273 Ala. 634, 143 So.2d 810 (1962); Singley v. Dempsey, 252 Ala. 677,42 So.2d 609 (1949); Lewis v. Burch, 215 Ala. 20, 108 So. 854 (1926); and Singleton v. Doe, ex dem., Smith, 184 Ala. 199, 63 So. 949 (1913). The sale through which Almon claims title by virtue of his tax deed is based on an assessment made to the Trusses after all right and title to the property has been conveyed to Champion’s remote grant- or. Notice of sale was given to the Trusses and not the Trusses’ grantee who was the title holder at the time of the tax sale. Thus, the subsequent sale was invalid and conveyed no title.

In affirming the order below, granting partial summary judgment, we note that, although Almon will be precluded from proceeding on the possession issue, he is not precluded from reimbursement by Champion. Tit. 51, §§ 283, 295, Code; Hames v. Irwin, 253 Ala. 458, 45 So.2d 281 (1949).

AFFIRMED.

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


author: EMBRY, Justice.

text:
    Ray BENSON et al. v. Charles PACHETTI et al.
    SC 2217.
    Supreme Court of Alabama.
    Aug. 19, 1977.

      George A. Moore, Huntsville, for appellants.
    James T. Baxter, III of Cloud, Berry, Abies, Blanton & Tatum, Huntsville, for appellees.
   EMBRY, Justice.

On this appeal from summary judgment we must decide whether, indisputably, plaintiffs’ claim is one to enforce rights of a partnership, consequently requiring joinder of one not presently a party to the action.

Plaintiffs, Ray and Alice Benson, base their claim for relief on conversion of personal property; trespass on property occupied by them; invasion of privacy; and intentional interference with their leasehold interest in the premises. Defendants, Charles Pachetti and Wenona Ruby McClure a/k/a Wenona Ruby McClure Pa-chetti, filed a motion for summary judgment or in the alternative that the Bensons be required to add and bring in as a necessary party plaintiff a partnership consisting of Ray Benson and Jimmy McClure d/b/a Pots and Plants Garden. The Bensons appeal from the summary judgment granted in favor of the Pachettis. We reverse and remand.

The facts, as we can glean them from the depositions and affidavits of the Bensons, which generated this litigation are: In June of 1976, the Bensons were operating a business located in Huntsville, Alabama, known as Pots and Plants Garden or simply Pots and Plants. The business was located in premises which were owned by Nonie McClure and Billy Don Thompson. Apparently, Nonie McClure is one and the same as Wenona Ruby McClure Pachetti and at one time was the wife of Jimmy McClure. At the outset the business was a partnership operation of Ray Benson and Jimmy McClure who employed Alice Benson. It seems that, shortly before the events giving rise to the Benson’s claim, Jimmy McClure left Huntsville (the inferences are that he and Wenona either had separated or had been divorced). At this time the business was delinquent in rental payments which were due a bank for the benefit, apparently, of Wenona McClure Pachetti (now the wife of Charles (“Chuck”) Pachetti). At or about the time Jimmy McClure left Huntsville, it is the contention of Ray Benson, McClure gave his interest in the business to Benson. On the other hand, the Pachettis claim that the partnership was not dissolved. At the least, the facts and conclusions of law to be drawn from them in this regard are in sharp dispute.

With the situation in that posture, Pa-chetti went to Pots and Plants, proceeded to change the locks, seized the inventory and other physical assets of the business, and prevented its further operation. Alice Benson was present when that occurred.

We must first deal with the motion of the Pachettis to dismiss this appeal. By that motion it is contended the order of the trial court is not a final judgment from which this appeal may be taken. These are the words of the order:

“This cause coming on to be heard on the Motion of Defendants for Summary Judgment, and the Court having heard and considered same is of the opinion that Jimmy McClure and Ray Benson, were partners operating the business in question; that the said cause of action should not be maintained.
“It is therefore, CONSIDERED, ORDERED, ADJUDGED AND DECREED by the Court that Defendants’ Motion for Summary Judgment is granted.”

The Pachettis say the substance of it merely requires joinder of a necessary party plaintiff; the partnership consisting of Ray Benson and Jimmy McClure d/b/a Pots and Plants Garden. We cannot agree.

Reading the order in light of Rule 58(b):

“Sufficiency of Judgment, Order or Minute Entry Thereof. * * * The judgment or order or the minute entry thereof will be sufficient if it indicates an intention to adjudicate considering the whole record, and if it indicates the substance of the adjudication.”

Considering the whole record: the complaint; motion for summary judgment; affidavits; and the portions of depositions of Ray and Alice Benson found in the Appendix, we find the order evidences an intention to adjudicate that the action be dismissed without leave to amend by joinder of a party or without a determination by the trial court that joinder is not feasible. Rule 19(a), (b), ARCP. It was error for the trial court to enter the order, which effectively dismisses the action, for two reasons: whether the business was a proprietorship or partnership depends upon resolution of disputed facts and, in turn, requisite joinder or nonfeasibility of joinder also depends on that resolution.

Now, we proceed to the merits of this appeal.

No authority need be cited for the rule that summary judgment is inappropriate if under any conceivable set of facts, under any cognizable theory of law, the non-moving party could prevail.

The trial court, to make the determination that the action should not be maintained, obviously resolved disputed facts and concluded that it should not because Pots and Plants was a partnership. This was a material fact. The resolution of it determined whether the Bensons might go forward with their action, join McClure, or have it determined the action could proceed without McClure as a party. Rule 19(a), (b), ARCP.

We need not decide questions about, but feel compelled to comment on, our law regarding actions to enforce claims in favor of partnerships or to recover partnership obligations. This for the reason that the Pachettis rely mightily upon that law to uphold the action of the trial court.

The general rules: that all partners must join as parties plaintiff in an action to enforce a claim in favor of a partnership; and where one partner will not join in a suit to recover partnership obligations the other partner or partners may name him as co-plaintiff by indemnifying him against costs, as enunciated in Rose v. Beckham, 264 Ala. 209, 86 So.2d 275 (1956) and authorities cited therein, to our knowledge have not been reexamined since adoption of the Rules of Civil Procedure, particularly Rule 19. This case does not require such reexamination.

The motion to dismiss this appeal is denied.

The summary judgment was improvidently granted.

Motion denied.

REVERSED AND REMANDED.

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


text:
    In re STATE of Alabama v. John Cecil WASHBURN, as a member of the Etowah County Commission. Ex parte John Cecil WASHBURN, as a member of the Etowah County Commission.
    SC 2228.
    Supreme Court of Alabama.
    Aug. 19, 1977.

      Larry H. Keener, Rowan S. Bone, William D. Hudson and Keener, Cusimano & Cardwell, Gadsden, for petitioner.
    William J. Baxley, Atty. Gen. and Edward E. Carnes, Asst. Atty. Gen., for respondent.
   EMBRY, Justice.

This is a petition of John Cecil Washburn, as a member of the Etowah County Commission, for the Writ of Mandamus to compel Honorable James B. Waid, Judge of the Circuit Court of Etowah County, to set aside a protective order which denied petitioner the right to take depositions of witnesses. The petition presents to this court the issue of whether Washburn may, in an impeachment proceeding, depose witnesses of the State while claiming a privilege against being deposed by it because he is under indictment for some offenses which are also bases for the information of impeachment pending against him.

We uphold his privilege under the circumstances and conditions that will be discussed, and therefore issue the Writ.

Four indictments were returned against Washburn in February 1976 for offenses alleged to have occurred during 1974 and 1975. An Information Of Impeachment And Prayer For Ouster (from his office as the member of the Etowah County Commission from District Four) was filed concurrently with the return of the indictments. The information was based on grounds including, and additional to, the grounds of the indictments. The following sequence of events then took place. Washburn filed a request for production of documents and things under Rule 34, ARCP, and notices of oral depositions of persons who he believed to be witnesses for the State in the impeachment proceedings. The State then noticed the oral deposition of Washburn who thereupon filed his motion for a protective order to prevent the State from orally deposing him. One of the grounds of his motion was that if he were compelled to testify on deposition while under indictment he would be deprived of his constitutional privilege against self-incrimination.

The State then filed its motion for a protective order to relieve it of the obligation to respond to Washburn’s discovery proceedings. Its motion was grounded on the proposition that: Alabama’s Rules of Civil Procedure are not applicable to impeachment proceedings concerned entirely with allegations of factual transactions which constitute violations of the criminal laws; ARCP are not available to a party who bars and prevents discovery by the other party; and one-sided, non-mutual discovery is unfair, oppressive, and not conducive to a truthful and just determination of the case.

After oral argument and receipt of briefs, the trial judge entered an order granting motions of each party “ * * * to prevent taking of depositions of witness * * *"

Applicability of ARCP

Rule 81(a)(14), ARCP provides:

(a) Proceedings Controlled by Statute. In the following proceedings, these rules shall be applicable to the extent that the practice in such matters is not provided by statute:
;}s sfc % sfc %
“(14) Impeachment.”

Section 189, Title 41 of the Code, relating to impeachment, provides in part:

“* * * the cause, * * * shall be proceeded with in all respects as civil actions at law are conducted, with the right to either party to except to the rulings of the court, and to reserve such exceptions as in civil causes; and the defendant shall be entitled to a trial by jury on any issue of fact, whenever he demands the same.”, .

and Section 193 contains these words:

“ * * * Witnesses in impeachment cases are entitled to the same fees and compensation as witnesses in civil cases in the circuit court, to be certified in the same manner and taxed and collected as costs. * * * ”

As noted, the State contends the discovery provisions of ARCP are not applicable to an impeachment proceeding concerned entirely with allegations of factual transactions which constitute violations of criminal law. We do not agree. Authorities relied upon by the State do in fact denominate impeachment proceedings as penal in nature; a criminal prosecution in which defendant has certain constitutional rights; a proceeding in the nature of a criminal prosecution; and partakes of the nature of both civil and criminal actions. See Alonzo v. State ex rel. Booth, 283 Ala. 607, 219 So.2d 858. Since such proceedings seem to be unique hermaphroditic creatures, we must look to the structures provided by the legislature and this court to determine how we must regard impeachment with respect to procedural processes.

We find no difficulty in holding that Rule 81(a)(14), ARCP, makes applicable to these proceedings the discovery rules of ARCP. Section 189, Title 41, Code, makes clear that the cause (impeachment) shall be proceeded with in all respects as civil actions at law are conducted. Section 193 provides for witness fees as in civil cases; the statutes are otherwise silent regarding discovery procedures; and this court has rule making power under. our constitution; Rule 81(a)(14) supplies otherwise nonexistent procedures for the conduct of impeachment proceedings, thus it seems clear ARCP governs the conduct of this impeachment case.

Perhaps the trial judge granted the State’s motion for protective order upon the conclusion that ARCP did not govern in this case, in this he was mistaken. On the other hand, if the order was based on the conclusion that since Washburn’s constitutional privilege against self-incrimination must be protected then discovery by him of the State would be one-sided and nonreciprocal and required grant of the State’s motion, in this also he was mistaken. In any event, the order must be set aside. The order granting Washburn’s motion must also be set aside for the reasons we will now discuss.

Availability Of Discovery After Grant To Washburn Of Protective Order In His Behalf

Washburn should not have been granted a protective Order before he was sworn and questioned. He has no privilege from being called as a witness; only the privilege to decline to give answers which might incriminate him. This court could never give examples of every conceivable incriminating or non-incriminating answer in the context of a case where the facts are not known to us. This is better left to the skilled and experienced trial judge who alone can wrestle with this problem in this case. It may, or may not, be that few, or many, of the answers to questions to Wash-burn might incriminate him. Nevertheless, his privilege under the Constitutions of Alabama and of the United States must remain inviolate and the claim of it cannot prevent discovery by him of the State’s witnesses or production of documents and things by it.

Mutual and Reciprocal Discovery

The claim by Washburn of his privilege against self-incrimination will not cause the discovery he seeks to be nonmutual or nonreeiproeal. That privilege merely limits the scope of the State’s inquiry of Washburn alone, not his witnesses. Authorities cited by the State, including Ex parte Loveman, Joseph & Loeb, 241 Ala. 379, 2 So.2d 446 (1941), are simply inapt to this case, as is Wardius v. Oregon, 412 U.S. 470, 93 S.Ct. 2208, 37 L.Ed.2d 82 (1973).

Because ARCP are applicable, the discovery provisions of ARCP are available to Washburn as well as to the State; discovery in this case is mutual and reciprocal; and there is presented no case of oppression, hardship, or injustice in allowing discovery. If, on the basis of this decision, the trial court does not set aside its protective order as to both litigants, a writ to effectuate that will issue on request of petitioner or the State.

WRIT GRANTED CONDITIONALLY.

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


text:
    Clarence COOK d/b/a Cook’s Auto Parts Company et al., etc. v. Ethel FULLBRIGHT, as Administratrix of Estate of James W. Fullbright, Deceased.
    SC 2267.
    Supreme Court of Alabama.
    Aug. 19, 1977.

      Huel M. Love, Love, Love, Lawrence & Burton, Talladega, for appellants.
    Charles L. Parks, Anniston, for appellee.
   EMBRY, Justice.

Ethel Fullbright, the widow of James W. Fullbright and administratrix of his estate, brought suit against Otis R. Burton, Sr., as Administrator of the Estate of James Donald Cook, and Clarence Cook, individually and d/b/a Cook’s Auto Parts Company, to recover damages for the death of James W. Fullbright which resulted from an automobile collision involving a truck driven by James Donald Cook, deceased. The crux of the suit was that James W. Fullbright’s death was the proximate result of the negligence or wantonness of James Donald Cook in the operation of a truck. The plaintiff sought to establish liability on the part of the defendant, Clarence Cook, on two theories: agency and negligent entrustment. The case was submitted to the jury on both theories. The evidence showed that during the early morning hours of July 17, 1975, James Donald Cook, who left a party at a friend’s home driving a red 1970 Chevrolet pickup truck, collided with an automobile operated by James W. Fullbright on Highway 202 in Calhoun County. In addition, there was evidence that during the party, Clarence Cook suggested to James Donald Cook that he go home and get in bed.

The verdict was in favor of the plaintiff in the sum of $100,000 against all defendants; judgment was entered accordingly. From denial of a motion for judgment notwithstanding the verdict, or in the alternative for a new trial, defendant Clarence Cook, individually and d/b/a’s Cook’s Auto Parts Company, brings this appeal.

Clarence Cook urges several grounds for reversal, however, his contention that the trial court erred in failing to grant the motion for new trial because the verdict was contrary to the weight of evidence is dispositive of this appeal.

The sole question under this assignment of error is whether the plaintiff met her requisite burdens of proof on the theories of respondeat superior and negligent entrustment to warrant submission of those issues to the jury.

We hold she did not, and the trial court erred in failing to grant defendant’s motion for new trial.

Respondeat Superior

Clarence Cook asserts that plaintiff did not establish an unrebutted presumption of the master-servant relationship between himself and James Donald Cook. We agree.

At trial, the plaintiff offered a tag receipt indicating the license tag of the 1970 red Chevrolet pickup truck driven by James Donald Cook had been purchased in the name of Cook’s Auto Parts. Proof of the license tag receipt in the name of Cook’s Auto Parts only raises a presumption that James Donald Cook was, by driving the vehicle, acting within the line and scope of his authority as the agent or servant of Clarence Cook.

In Red’s Electric Co., Inc. v. Beasley, 272 Ala. 200, 129 So.2d 676 (1961), we stated:

“But this is an administrative presumption only, based upon considerations of fairness and convenience in placing the burden of proof, and is not in itself evidence. And if the evidence clearly, and without conflict, shows the truck was not being so operated, and the circumstances do not support a reasonable inference to the contrary, this administrative presumption gives way * * * ”

Conceding that the tag receipt was sufficient to raise the administrative presumption of agency, we think that the presumption was adequately rebutted under the controlling case law on agency.

To recover against Clarence Cook upon the theory of respondeat superior, it was encumbent upon plaintiff to show that the collision occurred while James Donald Cook was within the scope of his employment and happened while he was in the accomplishment of objects within the line of his duties, or in or about the business or duties assigned to him.

Another principle, by which the facts must be tested, is that ordinarily an employee using an automobile, whether belonging to his master or to himself, in going to and from his place of work, is not at such times regarded as engaged in work for his master but is acting solely for his own purposes. Smith v. Brown-Service Insurance Co., 250 Ala. 613, 35 So.2d 490 (1948); Red’s Electric Co. v. Beasley, supra.

The evidence adduced at trial on this point showed that James Donald Cook worked for Cook’s Auto Parts the business hours of which were 7:30 a. m. to 5:00 p. m., Monday through Friday, and 7:30 a. m. to noon on Saturdays. The testimony was un-contradicted that the collision occurred shortly after 6:30 a. m. on July 17, 1975, and, at the time, James Donald Cook was traveling east on Highway 202 in Calhoun County away from his place of employment, Cook’s Auto Parts. These two facts, uncon-tradicted, taken together were sufficient to rebut the presumption of agency.

The effects of rebutting the administrative presumption by the defendant were explained in Bishop v. Fordham, 265 Ala. 432, 92 So.2d 3 (1957), where we quoted Craft v. Koonce, 237 Ala. 552, 187 So. 730 (1939):

“ * * * When plaintiff proves such ownership of the car by defendant, and thereby brings into being the presumption * * * he need not offer further proof that the operator of the car was the agent of defendant, and in the line and scope of his authority, until and unless defendant has offered proof that he was not acting for defendant in the line and scope of his authority * * * ”

From a careful review of the record, we find an absence of any proof supporting plaintiff’s theory of respondeat superior, save the presumption, which is not of itself evidence. Thus, from the facts and circumstances of this case we are compelled to conclude that, at the time of the collision in question, James Donald Cook was not engaged in the accomplishment of objects within the line of his duties, or in or about the business or duties assigned to him by his employer, Clarence Cook, but was, at such time, driving on a mission of his own.

Negligent Entrustment

Counts II and III of the complaint claim that Clarence Cook was the owner of a truck which he negligently entrusted to James Donald Cook and knew, or had reason to believe, that James Donald Cook was intoxicated; further that the death of James W. Fullbright was proximately caused by that negligent entrustment.

The same principles discussed with reference to the administrative presumption of agency apply to the question of negligent entrustment. The tag receipt which was registered in the name of Cook’s Auto Parts also raises the presumption that the truck was owned by Clarence Cook at that time. However, as mentioned before, this is only a presumption, and is rebuttable.

Of the evidence which rebutted this presumption, was the undisputed testimony of Clarence Cook that he gave the truck in question to James Donald Cook in March of 1975, almost four months before the fatal collision, with a bill of sale to James Donald Cook, evidencing this transaction. That clearly showed, without contradiction, the truck was given or sold to James Donald Cook before the collision.

We find the facts in the instant case similar to the factual setting in Shipp v. Davis, 25 Ala.App. 104, 141 So. 366 (1932). In Shipp, the Court of Appeals said:

“ * * * Whether by a gift or a sale when an automobile is placed in the possession and control of a person, sui juris, such transfer passes the title to the buyer or donee, and thereafter responsibility for its operation rests with such buyer or donee. * * * ”

Recently in Land v. Niehaus, 340 So.2d 760 (Ala.1976), we interpreted Shipp as requiring, in addition to passing title, that the donor or seller not retain any control or exercise any dominion over the property in order to be released from liability under the theory of negligent entrustment. In this case, the fact that James Donald Cook is an adult, living in his own home, with his own family, is indicative that he was not subject to control by his father, Clarence Cook, as was the minor child in Land. There is no evidence in the record which mentions any further control or dominion over the truck by Clarence Cook after the gift or sale. In fact, the evidence supports the view that James Donald Cook was indeed the owner. An example of such evidence was the testimony of a witness, who testified that James Donald Cook rarely used the truck, but rather his wife was the constant user.

Thus, Clarence Cook had no control over the truck, or the person of his son, at the time of the collision which would render him liable for the negligence of his son, James Donald Cook.

For the reasons discussed above, the trial court erred in denying the motion for new trial of defendant, Clarence Cook. The judgment is reversed and the cause remanded.

REVERSED AND REMANDED.

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


text:
    Leosia BLACK v. Harold POWELL.
    SC 2295.
    Supreme Court of Alabama.
    Aug. 19, 1977.
    Earl V. Johnson, Andalusia, for appellant.
    W. H. Baldwin, Andalusia, for appellee.
   EMBRY, Justice.

This is a disputed boundary line case wherein Harold Powell was plaintiff and Leosia Black was defendant, in which, after hearing the evidence ore tenus, the trial court found and adjudged as follows:

“1 — That this action is brought pursuant to Code of Alabama 1940, recompiled 1958 as last amended, Title 47, Section 2, for the purpose of establishing the boundary line between the parties who are coterminous land owners.
“2 — That the undisputed evidence shows that Mr. T. 0. Powell, Plaintiff’s predecessor in title, expressly permitted Mr. Ed Black, Defendant’s former husband, to construct the fence which Defendant now claims to be the true and correct boundary line.
“3 — That the survey conducted by McDonald and Hooper, Engineers, reflects the true and correct boundary line to be that as contended by Plaintiff in his complaint.
“4 — That Defendant has for more than ten (10) years been in actual or constructive possession of the disputed strip of land and has exercised dominion and acts of ownership over said disputed strip.
“5 — That the question to be resolved by this Court is whether or not Defendant’s possession of the disputed strip of land is adverse in view of the permissible entry by Defendant’s former husband.
“The Court is of the opinion that Defendant’s possession of the disputed strip of land would have been adverse except for the undisputed testimony to the effect that the initial entry (the erection of the fence by Mr. Black) was with the express permission of Mr. T. 0. Powell, Plaintiff’s predecessor in title. Having considered the applicable law, the Court is of the opinion that an entry and possession of land under permission of owner will not ripen into title by adverse possession.
“It is therefore ORDERED, ADJUDGED AND DECREED that the true and correct boundary line between the lands owned by these parties be and it is hereby established as the line defined in the survey conducted by McDonald and Hooper, Engineers, a plat of which was admitted into evidence as Plaintiff’s exhibit No. 3.”

In the motion for rehearing below, and by excellent brief and oral argument here, Mrs. Black’s counsel urges that the judgment was contrary to the trial court’s findings and contrary to law. That contention can be capsulated in his assertion that if the entry by Mrs. Black’s predecessor in title was permissive then the evidence was overwhelming that actual notice was given by Mrs. Black that she had repudiated the permission and was holding the land adversely to Powell and his predecessor in title. This case bears a striking similarity in material facts with those of McGilberry v. Belcher, Ala., 347 So.2d 370 (1977).

The issue for resolution by the trial court stated in paragraph five of its judgment, under the evidence in this case, was whether the permissive character of the possession of defendant’s former husband and her permissive possession ever became hostile and adverse by word or deed of either of them. There was ample evidence that it did not. The issue for us is whether the trial court’s judgment is supported by the evidence or whether it is plainly erroneous or manifestly unjust. We find ample supportive evidence for the judgment and, after a review of all the evidence, we cannot say the judgment below is plainly wrong or manifestly unjust; therefore, the judgment of the trial court is due to be affirmed. Eubanks v. Richards, 294 Ala. 30, 310 So.2d 883 (1975); White v. Sims, 295 Ala. 244, 326 So.2d 733 (1976).

AFFIRMED.

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


text:
    Claude A. HINTON et al. v. Boyd L. HOBBS et al.
    SC 2436.
    Supreme Court of Alabama.
    Aug. 19, 1977.
    William M. Acker, Jr., and Ezra B. Perry, Jr., Birmingham, for appellants.
    John A. Owens and Randolph M. Fowler of Phelps, Owens & Jenkins, Tuscaloosa, for appellees.
   EMBRY, Justice.

Claude A. Hinton, Jr., by Frank S. Black-ford, as Trustee of the Bankrupt Estate of Claude A. Hinton, Jr., appeals from a summary judgment entered in favor of defendant First State Bank of Tuscaloosa. Consent judgments against Boyd L. Hobbs and Henry J. Brislin in the same action are not involved in this appeal.

This appeal evolves from a suit filed, on 23 October 1974, by Hinton against Boyd L. Hobbs, Henry J. Brislin, and

« * * * ^ through Z, persons, firms or corporations who withheld the truth as to facts pertinent to the transactions herein described, and whose correct names are unknown but will be furnished when ascertained. * * * ”

The complaint charged in four counts that the defendants suppressed, and withheld from Hinton, various material facts and made certain material misrepresentations of facts which induced Hinton to loan money to Hobbs or to introduce sums into Hobbs’ account at First State Bank of Tuscaloosa.

After filing his action Hinton was adjudicated a bankrupt and a trustee was appointed who became the real party in interest and was substituted as party plaintiff.

On January 26, 1976, Blackford amended the complaint by designating the First State Bank of Tuscaloosa as the party defendant which had previously been referred to as “A” and by striking the remaining fictitious defendants. The amendment withdrew counts two and four, and added to the complaint counts five and six, which alleged that the original defendants, Hobbs and Brislin, had been acting in the line and scope of their authority as the major stockholder of the Bank and President and Chief Executive Officer of the Bank, respectively.

The Bank answered the amended complaint by pleading the statute of limitations as an affirmative defense.

A second amendment was filed by Black-ford on October 6,1976, to add counts seven and eight to the original complaint. In those counts, it was claimed that defendants had negligently induced Hinton to lend money to Hobbs for the benefit and advantage of the Bank; and defendants negligently extended credit to Hobbs and negligently induced Hinton to extend credit to Hobbs and Brislin for the benefit and advantage of the Bank.

On December 1, 1976, the Bank filed its motion for summary judgment. The basis of the motion was that, at the time the original complaint was filed, Hinton knew the name and the identity of the Bank and all the facts which constituted the alleged fraud.

Therefore, the question raised is whether substitution of the Bank for one of the fictitious parties described in the original complaint was appropriate under the facts of this case. We hold it was not and affirm the judgment of the trial court.

This appeal centers on the fictitious parties provision in Rule 9(h), ARCP.

In brief, Blackford asserts that his compliance with Rule 9(h), ARCP, permitted the amendment adding the Bank to relate back to the time of the filing of the original complaint (Rule 15(e), ARCP) because Hinton did not discover the fraud until less than a year before the filing of the amendment. He says, under Tit. 7, § 42, Code, the amendment is therefore timely.

Rule 9(h), ARCP, is in the spirit of, and closely drawn from Tit. 7, § 136, Code, dealing with fictitious parties. Committee Comments, Rule 9, ARCP. It provides:

“(H) Fictitious Parties. When a party is ignorant of the name of an opposing party and so alleges in his pleading, the opposing party may be designated by any name, and when his true name is discovered, the process and all pleadings and proceedings in the action may be amended by substituting the true name.”

Title 7, § 136, and its statutory predecessors were intended primarily for cases in which the name of defendant was unknown; they were emergency statutes and included cases in which neither the name nor the identity of defendant is known, as where the cause of action only is known but the party liable is not, and there is need for immediate seizure of property by attachment or other appropriate writ, or there is urgent need to get service at the same time the identity and name are ascertained. McKelvey-Coats Furniture Co. v. Doe, 240 Ala. 135, 198 So. 128 (1940); Roth v. Scruggs, 214 Ala. 32, 106 So. 182 (1925).

Hinton concedes he knew the Bank’s name at the time he filed the original complaint; however, this court is urged to adopt a liberal construction of Rule 9(h). It is argued that the proper interpretation of 9(h) is to permit the substitution of a named party for a fictitious one and let the amendment doing so relate back even if, at the time of the filing of the original complaint, the true name of the defendant was known but the plaintiff lacked knowledge of facts giving him a cause of action against that defendant. Cases of the California Supreme Court and District Courts of Appeals are cited in support of this argument since California’s fictitious parties statute is almost identical to Rule 9(h). In this case we cannot construe 9(h) to find that Hinton was ignorant of facts giving him a cause of action against the Bank.

A careful review of the record demonstrates that under the most liberal of interpretations, Hinton could not be considered “ignorant” within the meaning of Rule 9(h), ARCP. The face of the original complaint is illustrative of this:

“COUNT ONE
“1. On, to-wit, July 25, 1973, defendant Boyd L. Hobbs was the major stockholder of First State Bank of Tuscaloosa, an Alabama corporation, and defendant Henry J. Brislin was the President of said Bank and also a stockholder.
“2. On or prior to said date, all defendants, singly and in concert, suppressed and withheld from plaintiff the material fact that the said Bank was and had been under examination by federal and state bank examiners and had been warned not to lend any monies whatsoever to defendant Hobbs, or to any of his affiliated enterprises.
“3. Not knowing this very material fact, plaintiff borrowed from said Bank the sum of $50,000.00 and contemporaneously loaned the same said sum of $50,-000.00 to Hobbs. No part of said sum has been repaid. Plaintiff would not have entered into such transaction had he knowledge of the pertinent facts.
:fc cfc ‡ jfc sjc s}:
COUNT TWO
“1. On, to-wit, February 1, 1974, all defendants, singly and in concert, suppressed and withheld from plaintiff the material fact that the First State Bank of Tuscaloosa was and had been under examination by federal and state bank examiners and had been warned not to lend any monies whatsoever to defendant Hobbs, or to any of his affiliated enterprises, and that the Directors of said Bank had agreed in writing that no such loans or extensions of credit would be made.
“2. On, to-wit, February 1, 1974, plaintiff borrowed from First State Bank of Memphis, Tennessee the sum of $360,-000.00 and loaned the same said sum of $360,000.00 to Hobbs. No part of said sum has been repaid. Plaintiff would not have entered into such transaction had he had knowledge of the pertinent facts.
4c * sje * * sft
COUNT THREE
“1. On, to-wit, January 31, 1974, all defendants, singly and in concert, suppressed and withheld from plaintiff the material fact that the said Bank was and had been under examination by federal and state bank examiners and had been warned not to lend any monies whatsoever to defendant Hobbs, or to any of his affiliated enterprises, and that the Directors of said Bank had agreed in writing that no such loans or extensions of credit would be made.
“2. Furthermore, in addition to the suppression of said material facts, defendants, singly and in concert, affirmatively represented to plaintiff that a $225,000.00 check of United Leasing Company, payable, to defendant Hobbs had been deposited to Hobbs’ account at First State Bank, that the check had been dishonored by the Bank on which it was drawn and that First State Bank then had Bank examiners in the Bank, and-that the sum must be covered by introducing $225,000.00 into defendant Hobbs’ personal account if the Bank was not to be found to be impaired.
“3. Relying on this representation, which was false, and without knowledge of the pertinent facts withheld, plaintiff borrowed the sum of $225,000.00 from First National Bank of Atlanta and introduced said amount into Hobbs’ account at First State Bank of Tuscaloosa, same being represented by a promissory note from defendant Brislin to plaintiff.
“4. No part of said sum has been repaid.
“5. Plaintiff would not have entered into the said transaction had he had knowledge of the pertinent facts.
* * # * 4s *
COUNT FOUR
“1. On, to-wit, February 1, 1974, defendants fraudulently induced plaintiff to purchase a large block of stock in First State Bank of Tuscaloosa, stock then owned by defendant Hobbs, by suppressing and withholding from plaintiff crucial and material facts, namely, that since approximately July 25, 1973, the Bank had been prohibited from extending any credit to defendant Hobbs or to any of his affiliated enterprises, and that contrary to said prohibition, such extensions of credit had been made in large amounts, and by representing as a fact that the condition of the Bank was sound when in truth and in fact there had been overdrafts by Hobbs of such an amount as to endanger the Bank.
“2. Relying on said false and misleading information, plaintiff consummated the purchase of the said stock, which then had, and now has, a market value substantially less than the sum which he paid for it.” (emphasis added)

The affidavit submitted by Hinton in opposition to the motion for summary judgment states:

“ * * * I was not aware that, in the incidents described in Counts One and Three thereof, Defendants Hobbs and Brislin were acting in their capacities as major stockholder and President of First State Bank of Tuscaloosa, respectively.”

This assertion contradicts the description of Hobbs and Brislin in the original complaint. The other affidavit, filed by Hinton’s attorney, is equally ineffective. That affidavit alleges:

“ * * * At the time of the filing of the original complaint, I had no proof that in the incidents described in Counts One and Three thereof, Defendants Hobbs and Brislin were acting on behalf of First State Bank of Tuscaloosa and to its benefit as well as to their personal benefit.”

Proof of a cause of action is not the test of Rule 9(h).

In response to interrogatories propounded by the Bank, Hinton stated that various officials of the Bank knew he had gone to Atlanta to get a loan and repeatedly contacted Hinton’s office to find out whether he got the loan. In answer to another question, Hinton stated Hobbs advised him he would arrange for him, Hinton, to obtain a loan from the Bank, if he, Hinton, would then lend the proceeds to Hobbs.

This evidence charges Hinton with knowledge of the Bank’s possible involvement in the activity complained of in the original complaint. The general rule is that a Bank is liable for the fraudulent acts or representations of an officer or agent acting within the course and apparent scope of his employment or authority. 10 Am. Jur.2d, Banks, § 111.

From a process of elimination, it is fair to conclude that the Bank was another person, firm or corporation that could have withheld the truth concerning the transactions described in the original complaint. From that conclusion, and the admitted knowledge of the true name of the Bank, it follows that Hinton was neither ignorant of the true name of the fictitious defendant nor lacked knowledge of facts giving him a cause of action against that defendant. That cause of action is, therefore, barred by the one year statute of limitations; whether based upon fraud or negligence. Summary judgment was appropriately entered in favor of the Bank and that judgment is affirmed.

AFFIRMED.

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


author: ALMON, Justice.

text:
    ALABAMA BIKE SHOP, INC., an Alabama Corporation v. Grayham Vincent LYNCH and Laura Virginia Broglan Lynch.
    SC 1890.
    Supreme Court of Alabama.
    Aug. 26, 1977.

      George M. Beason, Jr. of Martinson & Beason, Huntsville, for appellant.
    Joe M. Berry of Cloud, Berry, Abies, Blanton & Tatum, Huntsville, for appellee, Grayham Vincent Lynch.
   ALMON, Justice.

The issue is whether the trial judge abused his discretion in refusing to confirm a judicial sale. The sale was conducted by the court pursuant to a divorce agreement between Virginia and Grayham Lynch. The property was owned by Virginia who agreed to sell it to pay a mortgage, in the approximate amount of $35,000.00, and to pay up to $36,000.00 to Grayham from the remaining proceeds.

At the time of the sale, Alabama Bike Shop, Inc., (appellant) had the property under lease, a provision of which gave Alabama Bike the right to match any “bona fide offer” that the lessors (Virginia and Grayham) obtain “from any third party for the purchase of all or portion of the demised premises” during the term of the lease. The sale was specifically made subject to the lease.

Grayham was high bidder at $35,000.00; Alabama Bike attended the sale, but did not bid. When Alabama Bike offered to exercise its option and match the sale price, Grayham filed an amended petition adding Alabama Bike as a third party defendant and asking the court to determine whether the option provision was applicable, and if it were, then to consider his petition as an offer of $70,000.00 from him for the purchase of the property with the right to increase such offer. The trial judge’s final decree ordered the property readvertised and resold with the added requirement that the advertisements state that the highest and best bid shall be subject to the right of “first refusal” on the part of Alabama Bike.

Alabama Bike contends that no grounds existed on which the judge could refuse to confirm the judicial sale. Tit. 7, § 561, Code of Alabama 1940, Recompiled 1958. Appellant argues that the price paid for the property was not so inadequate “as at once to shock understanding and conscience of an honest and just man . . .” (Martin v. Jones, 268 Ala. 286, 288, 105 So.2d 860, 863 (1958)), and that Grayham Lynch either made a mistake of law in not realizing that the “first refusal” provision was applicable, or he is estopped because his mistake was one of neglect. Appellant, however, does not address the question of whether Grayham Lynch’s offer was a “bona fide offer from any third party,” except to note that the trial judge, in directing that the advertisement of the resale should state that the property is subject to the appellant’s right of first refusal, apparently concluded that such a sale was a bona fide offer from a third party.

We note first that we are here dealing with a refusal to confirm the sale.

“This case also does not stand on the same footing as where the sale has been confirmed and conveyance ordered, and an independent suit is brought to set aside the sale. The court directing and affirming, or declining to affirm, as in this case, certainly has some discretion in granting and protecting the interest of all parties — both the owners and purchasers — and of controlling its own process; and its discretion, while a judicial one, and may be revised or controlled in some cases, it is entitled to weight and consideration by appellate courts.” De Loach v. White, 202 Ala. 429, 430, 80 So. 813, 814 (1919).

We note also from Martin v. Jones, supra, 268 Ala. at 288, 105 So.2d at 862, the following:

“We observe at the outset that in suits of this type the matter of confirmation rests peculiarly upon the wise discretion of the court, in view of all the surrounding facts and circumstances, to be exercised in the interest of fairness, prudence, and the rights of all concerned, and his decision is of weighty consideration in review. . [Citations omitted.] We will only revise the discretion of the lower court for abuse of its exercise. [Citations omitted.] On review we do not weigh the evidence as regards its reasonably satisfying effect on the issue tendered, but in considering it we indulge all favorable presumptions to sustain the trial court’s conclusion and will not disturb it unless palpably erroneous or manifestly unjust. [Citations omitted.]”

In a number of cases this court has distinguished between a party to the proceedings and a stranger to the proceedings. Cox v. Cox, 267 Ala. 372, 102 So.2d 23 (1958); De Loach, supra; and Littell v. Zuntz, 2 Ala. 256 (1841). In Cox, a wife was considered a party to the proceedings; in De Loach, a tenant in common; and in Littell, a mortgagee.

“These facts therefore clearly distinguish this case from ordinary judicial sales, when the property is purchased by strangers at public and auction sales, and when such purchasers have a pecuniary interest in having their contracts of sale enforced by the courts.” De Loach, supra, 202 Ala. at 429-430, 80 So. at 813-814.

In Cox and De Loach, this court affirmed the trial court’s decision to set aside or to refuse to confirm the sale to the wife and tenant in common; Littell discussed the effects of a purchase by a mortgagee.

In this case the stranger to the proceedings (Alabama Bike) wants the sale confirmed so it can utilize its alleged right of first refusal. While this case is not in the posture of Cox, De Loach or Littell, Gray-ham Lynch’s relationship to the proceedings is still relevant to whether his offer was a bona fide offer from a third party. See also Ex parte Spiller, 336 So.2d 1113 (Ala., 1976).

Virginia Lynch held title to the property, but Grayham contends — a fact not contradicted by appellants — that he paid for substantial improvements to the property. The lease was in the names of both Virginia and Grayham. The divorce decree provided that the first $35,000.00 would go to Virginia to pay an existing mortgage, the next $36,000.00 to Grayham, and anything over the sum of those figures, i. e., $71,000.00, would go to Virginia. Thus, whether Gray-ham paid $35,000.00 or $71,000.00 made no difference to him (Grayham).

Grayham Lynch, by his relationship to the property under the facts, was a party to the proceedings. As such, we do not see how his offer could be considered a bona fide offer from a third party.

We are asked on appeal to decide whether the judge erred in refusing to confirm the sale, not whether the first refusal provision of the lease is applicable; appellee Grayham Lynch is apparently satisfied with the order to resell the property with the understanding that the first refusal provision will apply. If the judge has erred insofar as his construction of the lease provision, the error is in favor of appellant.

The judgment is therefore affirmed.

AFFIRMED.

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


text:
    Joyce Moseley MARSH v. BIRMINGHAM BOARD OF EDUCATION et al.
    SC 2051.
    Supreme Court of Alabama.
    Aug. 26, 1977.
    G. Gordon Pate of Hare, Wynn, Newell & Newton, Birmingham, for appellant.
    James E. Simpson, Birmingham, for ap-pellees.
   ALMON, Justice.

This case is before us by way of summary judgment granted in favor of appellee, Birmingham Board of Education (defendant below). We affirm.

The facts are not in dispute. The appellant, Joyce Moseley Marsh (plaintiff below) accepted a contract on March 24, 1975, to teach for the Birmingham school system from April 1, 1975, until the end of the school term, May 30, 1975. The contract was signed by Dr: William Cody, the superintendent of schools for Birmingham. On April 8, 1975, the appellant was nominated by Dr. Cody for appointment by the Birmingham Board of Education. The Board deferred action pending further information as to why she had previously resigned from the Mountain Brook school system. Later, at the Board’s June 10, 1975, meeting, it rejected the appellant’s appointment. In the meantime, the appellant had fully completed her contract.

Appellant contends (1) that Tit. 52, § 361(2), Code of Alabama 1940, Recompiled 1958, controls and she has been automatically reemployed, or, alternatively, (2) that the Birmingham Board of Education is es-topped to deny that appellant has been reemployed.

I

Whether the appellant was automatically reemployed is controlled by Tit. 52, §§ 187 and 361(2), Code, which read as follows:

“§ 187. Transfer and suspension of employees of city board. — The city superintendent of schools shall nominate in writing for appointment by the city board of education, all principals, teachers, supervisors, attendance officers, janitors, and all other regular employees of the board, and shall assign to them their positions, transfer them as the needs of the schools require, recommend them for promotion, suspend them for cause, recommend them for dismissal,' subject to the provisions of chapter 13 of this title.”
“§ 361(2). Teacher deemed re-employed for succeeding school year unless notified. — Any teacher in the public schools, whether in continuing service status or not, shall be deemed offered re-employment for the succeeding school year at the same salary, unless the employing board of education shall cause notice in writing to be given said teacher on or before the last day of the term of the school in which the teacher is employed; and such teacher shall be presumed to have accepted such employment unless he, or she, shall notify the employing board of education in writing to the contrary on or before the fifteenth day of June. ...”

See also Tit. 52, §§ 158 and 182.

The appellee’s position, with which we agree, is that the initial employment of the appellant took the joint action of the superintendent of education, who “nominates” teachers to the board of education for appointment, and of the board of education, which “appoints” the teaches to their positions. § 187 does not give the superintendent of education the power to employ a teacher without the concurrence of the board. In this case the appellant's appointment was denied. The reemployment provision of Tit. 52, § 361(2) does not apply.

This conclusion is consistent with the other provisions in § 187. The superintendent of education similarly is not given the power to promote or to dismiss employees; he can only recommend them to the board of education for promotion or dismissal.

Furthermore, § 361(2) on which ap-pellee relies refers to the “employing board of education.” The superintendent of education is not the employing body; the board of education is.

Board of Education of Escambia County v. Watts, 19 Ala.App. 7, 95 So. 498 (1922), a case dealing with a similar statute, provides the following example and conclusion:

“. . . Section 12, art. 5, provides:
“ ‘The county board of education shall appoint, upon the written recommendation of the county of superintendent, all principals,’ etc.
“It was once the law in this state that the Senate should elect a railroad commissioner from three names sent to it by the Governor. Suppose the Senate, without receiving these names, had proceeded to the election of a railroad commissioner, would any one contend for a minute that such person could hold or be entitled to the emoluments of the office? Other illustrations might be multiplied. Under this statute (section 12), the county board has no power to act until a principal has been recommended in writing by the superintendent of education. The power of election is joint, . .” Id. at 9, 95 So. at 500.

In Roberts v. State, 228 Ala. 222, 153 So. 432 (1934), the outgoing superintendent of education nominated a statistical and stenographic clerk the day before he left office and the board of education elected him. The court held that the clerk did not legally hold office because he was not nominated by the superintendent then in office. While the policy reasons for the decision may not be applicable in this case, as the court viewed the relationship between the superintendent and the clerk as personal, the court’s interpretation of § 169, School Code 1927, which required election by the board of education upon “nomination of the County Superintendent of Education” is relevant:

“. . . A completed appointment required the joint action of the superintendent of education and the county board, and the single action of either, without the concurring action of the other, would have been a mere nullity so far as the question of title to the office is concerned. Clark v. State ex rel. Graves, 177 Ala. [188] on page 193, 59 So. 259.” Id. at 223, 153 So. at 433.

We conclude, therefore, that the Birmingham Superintendent of Education did not have the authority to employ the appellant without the concurrence of the Birmingham Board of Education. Consequently, the reemployment provision of Tit. 52, § 361(2) has no application to the case.

II

The doctrine of equitable estoppel, as a general rule, is not applicable to the state, to municipal subdivisions, or to state created agencies.

“. . . Persons dealing with agencies of government are presumed to know the legal limitations upon their power and cannot plead estoppel on the theory that they have been misled as to the extent of that power. City of Mobile v. Mobile Electric Co., 203 Ala. 574, 84 So. 816. No person can claim to have altered his position for the worse by acts or promises which the law warns him he must not depend upon. Whitfield v. Hatch, 235 Ala. 38, 177 So. 149.” City of Birmingham v. Lee, 254 Ala. 237, 247, 48 So.2d 47, 55-56 (1950).

The doctrine has been applied against municipalities “where the facts and circumstances, in the judgment of the court, warrants its application.” Powell v. City of Birmingham, 258 Ala. 159, 166, 61 So.2d 11, 18 (1952). See also Brown v. Tuskegee Light and Power Company, 232 Ala. 361, 168 So. 159 (1936); City of Montgomery v. Weldon, 280 Ala. 463, 195 So.2d 110 (1967); and State v. Ward, 272 Ala. 646, 133 So.2d 383 (1961). .

The situation before us falls within the general rule. The facts as a matter of law do not come within Powell, Brown or City of Montgomery; in Ward, the court held that the facts and circumstances were not sufficient to justify application of the principal of estoppel.

We note parenthetically that the appellant does not claim she has not been paid for her labor or that the board of education has been unjustly enriched. See State v. Fourth National Bank of Columbus, Georgia, 270 Ala. 135, 117 So.2d 145 (1959); and Bethune v. City of Mountain Brook, 293 Ala. 89, 300 So.2d 350 (1974).

The judgment in this cause is hereby affirmed.

AFFIRMED.

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


author: SHORES, Justice. TORBERT, Chief Justice

text:
    WINN-DIXIE, etc., et al. v. Garner GODWIN.
    SC 2092.
    Supreme Court of Alabama.
    Aug. 26, 1977.
    Peter V. Sintz, of Sintz, Pike, Campbell & Duke, Mobile, for appellants.
    Taylor D. Wilkins, of Wilkins & Bankes-ter, Bay Minette, for appellee.
   SHORES, Justice.

Mrs. Garner Godwin (appellee) filed suit against Winn-Dixie, Inc. and Kwik-Check Supermarkets, Inc. (appellants) claiming damages of $15,000 as the result of a fall in a Winn-Dixie store located in Foley, Alabama. At the close of the evidence, appellants moved for a directed verdict which was denied. The jury returned a verdict for the appellee and a judgment in the amount of $15,000. Appellants then filed a Motion for a judgment n. o. v. or for a new trial. This motion in the alternative was denied. Appellants bring this appeal alleging error by the trial court in its refusal to order a directed verdict and in its denial of the alternative motion for judgment n.o.v. or new trial.

The appellee, age 71, went into the Foley Winn-Dixie store the'morning of March 5, 1975. After shopping, Mrs. Godwin paid for her purchases and was leaving the store when she slipped and fell, landing on her right side. She was helped up by an employee of the store and by an elderly man. Upon being seated, Mrs. Godwin remarked that there was a heel mark on the floor where she fell and also that there appeared to be a build-up of floor wax on that part of the floor. Mrs. Godwin was wearing a low-heeled patent leather shoe with a rubber sole. When Mrs. Godwin’s husband was called to the scene, he also observed the heel mark. Both Mrs. Godwin and her husband testified to the effect that “there was too much wax” on the floor, “that there appeared to be a wax build-up because of some discoloration,” that the floor looked “real bright,” and that it looked “thick and shiny”.

The store manager was with Mrs. Godwin when she made the observation that there was too much wax on the floor and when she pointed out the heel mark. But neither the manager nor any of the store employees commented on the condition of the floor to Mrs. Godwin on the day of the accident.

The floor of this particular store had been waxed the night before the accident by a Mr. Weeks who had been waxing floors for several Winn-Dixie stores in the area for four years as a part-time job. Mr. Weeks testified that on the night before the accident he and two helpers stripped the old wax off the floor and then applied two coats of self-polishing wax. Weeks testified that he performed this job in approximately four hours.

The testimony of the store manager and a store employee was that there was no wax build-up on the floor on the day in question, that the floor was not slick, and that to their knowledge no one other than Mrs. Godwin slipped on the floor that day.

The appellants present two major issues for this court’s consideration, the first issue being whether there was sufficient evidence of a lack of due care on the part of the appellants in maintaining the floor to allow the case to go to the jury. The second issue raised is whether the judgment rendered by the jury is excessive.

There is no dispute between the parties that Mrs. Godwin was in the Winn-Dix-ie store as an invitee and that Winn-Dixie owed her the duty of exercising ordinary or reasonable care to keep the premises in a reasonably safe condition. May-Bilt, Inc. v. Deese, 281 Ala. 579, 206 So.2d 590 (1967); Great Atlantic & Pacific Tea Co. v. Bennett, 267 Ala. 538, 103 So.2d 177 (1958); Ten Ball Novelty & Manufacturing Co. v. Allen, 255 Ala. 418, 51 So.2d 690 (1951).

Appellants argue that they were entitled to a directed verdict because of a failure of proof of negligence on their part.

We disagree. To the contrary, the plaintiff put on sufficient evidence to permit the jury to pass on the issues of negligence and proximate cause.

When she entered the store, Mrs. Godwin remarked to her grandson: “Don’t run on this floor, it is highly waxed and you might fall and break an arm or leg.”

After her fall, Mrs. Godwin said that she did not see anything on the floor, but it was waxed too heavily. According to her, all she knew was that she slipped on a waxed floor.

This court has said in eases of this kind:

“There are many factual matters that are involved in cases such as this — as examples: How old was the plaintiff? Her general health at the time of the accident? How much did she weigh? Was she wearing high or low heels? Was she under medication at the time that could have caused her to lose her equilibrium? Did she wear glasses? Bifocals? How long since they were changed or corrected?' What was the condition of the floor as to color? Was it a slippery floor, or did it have a non-slippery surface? Countless other matters are important and usually present in such a case as this. All of such, however, are factual and for the jury to consider in each case, after proper instructions from the court. . ” (Emphasis Added) Foodtown Stores, Inc. v. Patterson, 282 Ala. 477, 482, 213 So.2d 211, 215 (1968).

Several of these factual issues are, in fact, involved in this case, just as the court recognized as normal in such cases. But the point is: They are factual matters and, therefore, properly left to the jury for a determination of whether the defendant is negligent, and whether such negligence, if any, proximately caused the plaintiff’s injury. There was evidence produced which entitled the jury to pass on the plaintiff’s theory of the case.

Ten Ball Novelty & Manufacturing Co. v. Allen, supra, involved a female customer in a store who slipped and fell on a floor which was heavily waxed and had bits of paper strown over the floor. There, the plaintiff testified that she saw the bits of paper on the floor and knew that the floor was recently waxed. She was walking where she was supposed to walk and did not know what caused her to fall until after she had done so and was getting up, but the floor where she fell was slick. In that case, Justice Stakely, writing for the court, said:

“Not only was the floor slippery by reason of a heavy coat of wax being applied but also there were shredded waxed papers on the floor. The papers together with the presence of the wheel goods [which had been displayed in this area until noon on the day the plaintiff was injured] had protected the floor from abrasive substances so that the floor had retained the high sheen and unusual slipperiness caused by the application of the heavy coat of wax. .
“The slick condition of the floor and the presence of the paper on the floor was sufficient to present a jury question as to whether the defendants exercised reasonable care to have the floor in a reasonably safe condition for the use of their customers. . . . ” (255 Ala. at 421, 51 So.2d at 693)

In Ten Ball, supra, the theory of the plaintiff’s case was that she fell because the floor was too heavily waxed. The presence of the bits of paper were not attributed to her fall by either side. There should be no distinction between the present case and that one.

We are not persuaded that the verdict is excessive. Although Mrs. Godwin did not receive any broken bones as a result of the fall, there was medical testimony that the fall aggravated a pre-existing arthritic condition in the 71-year-old woman; she suffered prolonged pain and was impaired in her ability to perform her usual activities. Her medical expenses were estimated at $250. We cannot conclude, under these facts, that the verdict was excessive.

AFFIRMED.

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

TORBERT, C. J., dissents.

TORBERT, Chief Justice

(dissenting):

I respectfully dissent. I am unpersuaded that the appellee in this case provided sufficient evidence to permit the jury to make a determination on the issues of negligence and proximate cause.

The appellee refers the court to the following testimony of Mr. Weeks, the man who applied wax to the floor the night before:

“Q. Leonard, what time did you all start working on the floor that night?
“A. We started at 7:30 p.m. after the store was closed and everybody was out of the store.
“Q. What time did you all get the other wax up off the floor?
“A. Took us about two hours to get it up.
“Q. About two hours?
“A. Yes.
“Q. And then you started putting this down?
“A. About an hour after the floor dried, we started putting the other down.
“Q. Are you testifying from your memory as to what you did that night, or is this just the general procedure, and you feel like that’s what you did?
“A. I am testifying what we done that night.
“Q. What time did you all get through waxing the floor?
“A. It was around about 11:30 p.m.
“Q. How long does it take you to put a coat of wax down?
“A. You can put a coat of wax down in an hour.
“Q. How many coats of wax did you put down that night?
“A. Two.
“Q. How long did you wait in between?
“A. We waited an hour.
“Q. An hour in between the two coats and it took you an hour for each coat?
“A. Yes, sir.
“Q. Sometime you have to wait a little longer than others, don’t you?
“A. If it ain’t dry enough, you can’t put the second coat down.
“Q. And that’s the key as to whether or not you have a real good wax job, isn’t it? You can’t have any moisture under the wax — the second or the first coat?
“A. Right. The first coat’s got to be thoroughly dry.
“Q. Did you inspect this area where this woman fell?
“A. The front was all dry.
“Q. You went out and looked at it?
“A. Yes, sir, went over the whole store to see if it was dry.
“Q. You recall doing that?
“A. Yes.
“Q. Do you recall going to that checkout counter where she was and checking to see if it was dry?
“A. We went out in front and walked up in the front of the cash register and all, down from the office and back to the back.
“Q. What time did you leave the store that night? Did you say around 11:00 p.m.?
“A. We got through — see we had to wait until the manager came and let us out. Sometimes it takes fifteen minutes to half hour.
“Q. Do you recall what time it was? I’m not pinning you to the exact minute.
“A. I would say roughly 11:30 p.m.”

The appellee places great emphasis on Mr. Weeks’ statement that the first coat must be dry before the second coat is applied in order to have a “real good wax job.” According to appellee’s calculations, Mr. Weeks could not have properly completed the job that night before 2:00 a.m. the next morning; i. e., it would take six and a half hours to finish waxing the floor properly calculated in the following manner: 2 hours to strip the floor of old wax; 1 hour wait; 1 hour to put down the first coat; 1 hour to allow the wax to dry; 1 hour to put down the second coat; 1 hour to allow the wax to dry; 30 minutes checking the floor and waiting for the store manager to arrive to let them out of the building.

Based on Mr. Weeks’ testimony and the appellee’s time calculations, the appellee contends that the jury was free to infer that proper care was not used in waxing the floor and that as a proximate result of this negligence the appellee sustained injury.

This construction of the evidence should not stand. In considering the propriety of granting a directed verdict, we must view the evidence in the light most favorable to the appellee. However, there remains a fatal flaw in the appellee’s case, that flaw being a complete failure to show proximate cause.

There was no evidence produced by the appellee that the application of the wax in the manner testified to would create a slippery walking surface. The only evidence touching on proximate cause was the testimony by Mr. Weeks, quoted and emphasized above, that the first coat of wax must be dry before the second coat is applied in order to have a “real good wax job.” There was no evidence presented to show what is meant by a “real good wax job” and, specifically, there was no evidence presented that the premature application of the second coat of wax would create a slippery surface which could constitute an unsafe condition.

The testimony of Mrs. Godwin and her husband that the floor looked like it had too much wax, that there was a wax buildup, that the floor was shiny, and that there was a heel mark where she fell was not supported by any evidence that these conditions constituted an unsafe condition which was the proximate cause of her injuries. Nor was any evidence presented which would tend to prove that the way in which Mr. Weeks applied the wax created an unsafe condition.

One of the cases relied on by the majority is Ten Ball Novelty & Manufacturing Co. v. Allen, 255 Ala. 418, 51 So.2d 690 (1951), but in that case there was testimony “that a heavy coat, a real heavy coat” of wax was put on the floor and that it made the floor “real slick” when it dried. There also was evidence that on a new floor when a heavy wax was put on, it made the floor “real slick.” In that case, the plaintiff testified that when she fell the floor was real slick at the place where she fell. But in the instant case we have no such evidence.

Evidence of a remark by appellee to her grandson: “Don’t run on this floor, it is highly waxed and you might fall and break an arm or leg” is not sufficient evidence from which the jury could infer -that the floor was slippery or unsafe.

If we assume that there was negligence in the application of the wax, there was no actionable negligence shown because of the failure of the appellee to show proximate cause. International Harvester Co. v. Williams, 222 Ala. 589,133 So. 270 (1931); Alabama Power Co. v. Bass, 218 Ala. 586, 119 So. 625 (1928).

In slip and fall cases of this nature this court has held that the invitor is not an insuror of the safety of his invitees, that the principle of res ipsa loquitur does not apply, and that no presumption of negligence arises from the fact of the fall and injury. May-Bilt, Inc. v. Deese, 281 Ala. 579, 206 So.2d 590 (1967); Great Atlantic & Pacific Tea Co. v. Bennett, 267 Ala. 538,103 So.2d 177 (1958).

For the foregoing reasons, I would hold that the appellants were entitled to a directed verdict at the close of the evidence. It is thus unnecessary to address the issue of excessive damages.


text:
    Geanelvin WALTON v. Climmie Lee LINDSEY et al.
    SC 2126.
    Supreme Court of Alabama.
    Aug. 26, 1977.
    J. Milton Coxwell, Jr. of Coxwell & Cox-well, Monroeville, for appellant.
    James B. Watson, Monroeville, for appel-lees.
   ALMON, Justice.

This is an appeal from a summary judgment wherein the trial court decreed that as a matter of law an illegitimate child (the appellant) could not take under the last will of Horace J. Lamar. Appellant contends that whether she was intended to be included in Horace Lamar’s will is a question of fact.

Appellees, consisting of both plaintiffs and defendants, are heirs of Horace J. Lamar. The plaintiffs in this case had filed suit to sell for division a parcel of real estate apparently descending by will from Horace J. Lamar; the interest of the plaintiffs in the property cannot be established from the record. Appellant was joined as a defendant below.

The pleadings — one set of interrogatories, and an affidavit by the mother of appellant — establish the following: Horace J. Lamar was born in 1885; the record does not disclose his date of death. Between 1911 and 1924 four children were born to Horace and his wife, Ella L. Lamar. In 1946 Geneva Andrews gave birth to the appellant. By the affidavit of Geneva Andrews, the appellant’s father was Horace J. Lamar. The affidavit further states that Horace recognized the appellant as his daughter during his lifetime, provided partial support for her, and indicated a desire that the appellant should share his estate along with his other children. In 1949 Horace wrote his last will and testament leaving a life estate in all of his possessions to his wife, Ella L. Lamar, since deceased, with the remainder to “. . . my children, share and share alike . . (For an annotation on “Right of illegitimate children to take under testamentary gift to ‘children,’ ” see 34 A.L.R.2d 4.)

At common law an illegitimate child was heir neither to his mother nor his father “for, being nillius fillius, he is therefore of heir to nobody, and has no ancestor from whom any inheritable blood can be derived.” Lingen v. Lingen, 45 Ala. 410, 413 (1871). In Alabama we have declared by stature that the father of an illegitimate child has a duty to support the child (Tit. 27, § 12(1) et seq., Code of Alabama 1940, Recompiled 1945). We have provided a method for a father to legitimatize an illegitimate child (Tit. 27, §§ 10 and 11, 1973 Cum.Supp., Code, supra), and we have provided that an illegitimate child is heir to his mother (Tit. 16, § 7, Code, supra). These statutes are only of oblique interest, though, as a person may will property to illegitimate children; our task is to determine his intention. Dunlap v. Robinson, 28 Ala. 100 (1856).

In Williams v. Witherspoon, 171 Ala. 559, 561, 55 So. 132,133 (1911), this court stated: “It is settled law that, when the word ‘children’ is used in a statute, it means ‘legitimate children,’ unless the context broadens its meaning.” Similarly, in Tillery v. Tillery, 155 Ala. 495, 497, 46 So. 582 (1908), this court stated: “. . . ‘child,’ in the absence of any facts or circumstances indicating a different interpretation, carries with it the meaning of legitimate offspring.” See also Morgan Plan Company v. Bruce, 262 Ala. 314, 78 So.2d 650 (1955).

Scott v. Nelson, 3 Porter 452 (1836); considered whether the term “child” could include grandchildren:

“It is admitted, that the word children, does not ordinarily and properly speaking, comprehend grandchildren, or issue generally.
“There are two cases where it is permitted—
“1. From necessity — where the will would be inoperative, unless the sense is extended beyond its natural import: and,
“2. When the testator has shown, by other words, that he did not intend to use the word children in its proper actual meaning, but in a more extended sense.”

For cases following Scott, see Spencer v. Title Guarantee Loan & Trust Co., 222 Ala. 221, 132 So. 32 (1931), and Wilson v. Rand, 215 Ala. 159, 110 So. 3 (1926). The will in the instant case would not become inoperative should we exclude illegitimate children as Horace Lamar had four legitimate children. (See 34 A.L.R.2d 4, § 13.)

Thus, we are left with this question: Does a question of fact arise where a testator, after leaving a life estate to his wife, leaves the remainder to “my children” as distinct from “our children” when he allegedly recognized and supported a then living illegitimate child? Is a latent ambiguity created so that the trial court should look beyond the contents of the instrument in determining the intent of the testator?

“. . . In a proper case of latent ambiguity, to determine that intention, courts will, not only look to the words of the will itself, but as far as possible determine from the evidence, or as nearly as may be done in the light of the whole record disclosing the circumstances of the testator, and put the court in 'the place of the testator, in order that there be a due consideration of the instrument as to how testator intended the properties devised or bequeathed to the several objects of bounty, or denied to those bearing relation that come within the purview of testator’s bounty. From such a position so advantaged courts may read and expound the will in accord with a testator’s true intention. Myrick v. Williamson, 190 Ala. 485, 67 So. 273; Steele v. Crute, 208 Ala. 2, 93 So. 694; 28 Alabama and Southern Digests, Wills, page 225, &wkey;441.” Wiley v. Murphree, 228 Ala. 64, 68, 151 So. 869, 872 (1934).

We conclude, contrary to the decision of the trial court, that the intent expressed by Horace Lamar in his 1949 will cannot be decided as a matter of law but rather should be treated as a question of fact. Rule 56, Alabama Rules of Civil Procedure.

The judgment in this cause is reversed and the cause is remanded to the lower court for further proceedings.

REVERSED AND REMANDED.

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