text:
    Cinderella Moore CROSSLEY v. Grace B. JAMES.
    No. 50403.
    Supreme Court of Mississippi.
    Dec. 20, 1978.

      Zachary & Gillespie, George E. Gillespie, Jr., Hattiesburg, for appellant.
    Dudley W. Conner, Hattiesburg, for ap-pellee.
   LEE, Justice, for the Court:

Cinderella Moore Crossley filed suit in the Circuit Court of Forrest County against Grace B. James seeking damages for personal injuries sustained in an automobile collision. The jury verdict was in favor of James, and judgment was entered accordingly. We reverse and remand for a new trial because of erroneous instructions granted at the request of James.

Appellant and Clayton Crossley were married in Kosciusko on July 4,1973. Soon after the wedding, the Crossleys departed Kosciusko en route to the Mississippi Gulf Coast for their honeymoon. They were proceeding south on U. S. Highway 49 at a point near the north entrance to Camp Shelby. An automobile driven by appellee was going south in front of the Crossleys. From that time forward, the evidence on behalf of the parties is in direct conflict.

Appellant claims that her automobile was traveling south in the outside (west) lane at a speed of fifty-five (55) to sixty (60) miles per hour; that appellee’s vehicle was proceeding south in the inside (east) lane; that without warning, appellee’s vehicle veered into the outside lane in front of the Cross-ley automobile, forcing it onto the shoulder and into the ditch; and that the Crossley vehicle struck a culvert in the ditch, ran up over the Rogers Road (which intersected U. S. Highway 49 on the west), and struck appellee’s vehicle in the right rear and side.

Appellee contends that she had entered the highway about one mile north of the Rogers Road; that she traveled south in the outside lane until she arrived at the Rogers Road upon which she intended to turn off the highway; that she gave a directional signal of her intent to turn, and that, as she turned off the highway, the Crossleys ran into her vehicle on the Rogers Road. At least one eyewitness corroborated each party’s version.

Instruction D-3 [Appendix I], granted at the request of the defendant, told the jury that the driver of an automobile had the duty to drive with reasonable care, to keep a reasonable lookout ahead, and to observe signals in the exercise of ordinary care in order to avoid colliding with objects in front of him. Instruction D-4 [Appendix II] told the jury that, if it believed from a preponderance of the evidence the driver of plaintiff’s automobile could have, by the exercise of reasonable care, avoided the collision by turning to the left and using the inside lane of traffic, the verdict should be for the defendant.

In Freeze v. Taylor, 257 So.2d 509 (Miss. 1972), the following instruction was granted the defendant:

“The Court instructs the Jury for the defendant, that if you believe from a preponderance of the evidence in this case, that the Plaintiff’s automobile could have, by the exercise of reasonable care, avoided the collision complained of, and that her failure so to do, if any, was the sole proximate cause of said collision, then your verdict should be for the Defendant, John M. Taylor.” (Emphasis added) 257 So.2d at 511.

In holding that the instruction constituted reversible error, the Court said:

“This instruction is erroneous. It puts the entire burden on the plaintiff to avoid the accident regardless as to whether or not the defendant was negligent. She could have avoided the accident by remaining at home. The issue here is not whether or not she could have avoided the accident, but, rather, whether or not the acts she did were negligent acts which contributed to the cause of the accident. One has a legal right to operate a motor vehicle on the highway so long as such operation is done in compliance with the law.” (Emphasis added) 257 So.2d at 511.

This Court had a similar instruction for consideration in Jones v. Phillips, 263 So.2d 759 (Miss.1972). The instruction stated in part:

“That the driver of an automobile does not have the right to a clear and unobstructed highway but must constantly keep the automobile driven by her under control, must continue on the alert, must keep a proper lookout ahead and anticipate the presence of other vehicles on the same highway and must, at all times, drive her automobile at such a rate of speed as to enable her to a void striking other vehicles which come within her vision and under her observation, ...” (Emphasis added) 263 So.2d at 763.

The Court said:

“The language used in this instruction, just as the language in Instruction No. 3, places a greater burden upon the Appellant, Debra Ann Jones, than that which is required by law, and thus these instructions should not have been granted. .
We have no alternative but to hold that the granting of these two erroneous instructions require a reversal of this case, and a retrial before a properly instructed jury.” 263 So.2d at 763.

See also Mills v. Balius, 254 Miss. 353, 180 So.2d 914 (1965) and Bryan Bros. Packing Co. v. Grubbs, 251 Miss. 52, 168 So.2d 289 (1964).

The instructions place upon appellant a greater burden than the law imposes, viz, the burden of avoiding the collision. Rather, the question is whether or not plaintiff’s driver was guilty of negligence in doing, or in failing to do, some specific thing which proximately caused or proximately contributed to the collision. Even though appellant’s driver may have been guilty of negligence in driving his automobile, still appellant was not barred from recovery if the jury found that appellee was guilty of negligence which proximately caused or proximately contributed to the collision. Further, the Instruction D-4 directs the jury’s attention to the fact that appellant’s driver could have avoided the collision by turning to the left without any other option (turning farther right, decreasing speed or stopping).

Instruction D-8 [Appendix III], in addition to using the offensive language, supra (“to avoid a collision”) four (4) times, further stated:

“The Court instructs the jury the defendant has a right to drive on the public highways, and to assume the highway in question was reasonably safe to drive upon, and that she was not required to exercise or use extraordinary care in doing so . .” (Emphasis added)

The above language has been condemned in McHale v. Daniel, 233 So.2d 764 (Miss. 1970) which held the following instruction to be error:

“The Court instructs the jury for the defendant Jack L. Daniel, that every operator of a motor vehicle has the right to assume and to act upon the assumption, that every other operator will exercise reasonable care and caution in traveling upon the highways of the State of Mississippi.”

In quoting from McMinn v. Lilly, 215 Miss. 193, 60 So.2d 603 (1952), where a similar instruction was discussed, the Court set forth:

“ ‘ * * * [S]econd, the defendants are in error under previous decisions of this Court in contending that the driver of a motor vehicle may assume that others on the highway will obey the laws of the road. * * * ’ (215 Miss. at 202, 60 So.2d at 608).” 233 So.2d at 769.

We conclude that the three instructions granted at the request of appellee constitute reversible error and that the case should be reversed and remanded for a new trial. Since the other errors assigned either have no merit or probably will not occur again, a discussion of them is not necessary.

REVERSED AND REMANDED.

PATTERSON, C. J., SMITH and ROBERTSON, P. JJ., and SUGG, WALKER, BROOM, BOWLING and COPER, JJ., concur.

APPENDIX I

“INSTRUCTION NO. D-3

The Court instructs the jury it is the duty of the driver of an automobile to drive with reasonable care, and to keep a reasonable lookout ahead, and to observe signals, if any, in the exercise of ordinary care, in order to avoid colliding with objects in front of him; and a failure to do so is negligence; and you are further instructed if you believe the plaintiff’s driver in the operation of her vehicle, at the time and place complained of, did not keep a reasonable lookout, or did not exercise reasonable care to keep his automobile under free and easy control under the conditions then prevailing, and, as a result thereof, drove the plaintiff’s automobile off the highway to the right into a ditch and culvert and collided with the side of the defendant’s car, and that such failure or failures, if any, was the sole proximate cause of the collision, then your verdict must be for the defendant.”

APPENDIX II

“INSTRUCTION NO. D-4

The Court instructs the jury if you believe from a preponderance of the evidence in this case that the driver of the plaintiff’s automobile could have, by the exercise of reasonable care, avoided the collision complained of by turning to the left and using the inside lane of traffic, and that his failure to do so was the sole proximate cause of the collision, then your verdict should be for the defendant.”

APPENDIX III

“INSTRUCTION NO. D-8

The Court instructs the jury the defendant has a right to drive on the public highways, and to assume the highway in question was reasonably safe to drive upon, and that she was not required to exercise or use extraordinary care in doing so; and, if you believe from a preponderance of the evidence in this case the defendant was operating her automobile ahead of and in front of the automobile driven by the plaintiff’s driver and within the range of his vision, it was the duty of the plaintiff’s driver, in the exercise of reasonable care, not only to drive his vehicle so as to be able to stop if that should become necessary in the exercise of reasonable care to avoid a collision with an object within the range of his vision, but he must also drive his vehicle in the exercise of reasonable care to discover signals if any within the range of his vision, and objects indicating signals, if any, in time to perform the manual acts in the operation of his vehicle necessary to avoid a collision, even to the extent, in the exercise of reasonable care, to bring his vehicle to a complete stop should that be necessary to avoid a collision with others on or near the highway; and if you believe from a preponderance-of the evidence in this case the plaintiff’s driver was not exercising reasonable care so as to avoid over taking and colliding with the defendant’s automobile; and if you believe such negligence, if any, was the sole proximate cause of the collisions of the plaintiff’s automobile with the ditch, the culvert, and the defendant’s automobile, then, it is your sworn duty to find for the defendant.”


source: Caselaw Access Project

license: Public Domain

text:
    Thomas C. BORING, Jr. v. STATE of Mississippi.
    No. 50813.
    Supreme Court of Mississippi.
    Dec. 20, 1978.
    Rehearing Denied Jan. 10, 1979.

      Moore, Epps & Selph, Deborah Selph, Julie Ann Epps, Jackson, for appellant.
    A. F. Summer, Atty. Gen. by Billy L. Gore, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before ROBERTSON, P. J., WALKER and BROOM, JJ., and GRIFFIN, Commissioner.
   J. RUBLE GRIFFIN, Commissioner for the Court:

The appellant was convicted in the Circuit Court of Leflore County for manufacture of marijuana under an indictment, the stating part of which reads as follows: “wilfully and feloniously manufacture a controlled substance by propagating or growing 23 plants of cannabis, commonly called marijuana.”

The court gave, at the State’s request, the following instruction:

The Court instructs the jury that if you believe from the evidence beyond a reasonable doubt that Thomas C. Boring, Jr. did on or about the 17th day of June, 1977 in Leflore County, Mississippi, unlawfully, willfully, and feloniously manufacture a controlled substance by growing same or by growing 23 plants of cannabis, which is commonly called marijuana, then it is your sworn duty to find the defendant, Thomas C.. Boring, Jr., guilty as charged.

The appellant requested instructions that would havé required proof that the manufacture ivas effected, either directly or indirectly/in one of three ways: by extraction, by chemical synthesis, or by a combination of -these two methods, contending that by virtue of Mississippi Code Annotated, Section 41-29-105(q) (Supp.1977), one of the above must be proved as an element of the offense charged. The code section reads as follows:

(q) “Manufacture” means the production, preparation, propagation, compounding, conversion or processing of a controlled substance, either directly or indirectly, by extraction from substances of natural origin, or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis, and includes any packaging or repackaging of the substance or labeling or relabeling of its container. The term “manufacture” does not include the preparation or compounding of a controlled substance by an individual for his own use or the preparation, compounding, packaging or labeling of a controlled substance: * * *

It is contended by the appellant that the comma following the word “indirectly” should have been omitted and the word “or” inserted. Admittedly the parenthetically setting out of “either directly or indirectly” confuses the reader and does make it appear that the manufacture must be either by extraction, chemical synthesis or a combination thereof. However, Section 41-29-105, supra, is the definitive section of that chapter of the Mississippi Code on controlled substances, and sub-section (z) defining production reads as follows: “ ‘Production’ includes the manufacture, planting, cultivation, growing or harvesting of a controlled substance.” In order to give proper meaning as obviously intended by the Legislature, sub-sections (q) and (z) must be read and construed together. Aikerson v. State, 274 So.2d 124 (Miss.1973). Manufacturing embraces production and production embraces manufacturing and planting, cultivation, growing or harvesting. Construing the two sub-sections together, it becomes apparent that the Legislature prohibited the growing of marijuana; therefore, the State’s instruction was proper and the requested instructions by the appellant were properly refused inasmuch as the State had made no effort to show that the defendant manufactured marijuana by extraction, chemical synthesis or a combination thereof. The State was not required to do this. The simple growing of the plant is prohibited.

The Court has examined Chapter 415, Mississippi General Laws of 1974, from which Section 41-29-105 is taken, and the original thereof does not have a comma after the word “indirectly” as placed by the codifier. This Court should examine the history of a statute in order to find its meaning. Aikerson v. State, supra.

The appellant contends that his instructions are patterned after Instruction 104.20 (1977), Mississippi Model Jury Instructions, which reads as follows:

104.20 MANUFACTURE

PATTERN INSTRUCTION
Manufacture means the production, preparation, propagation, compounding, conversion or processing of a controlled substance, either directly or indirectly, by extraction from substances of natural origin, or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis, and includes any packaging or repackaging of the substance or labeling or relabeling of its container. The term “manufacture” does not include the preparation or compounding of controlled substance by an individual for his own use or the preparation, compounding, packaging or labeling of a controlled substance:
(1) By a practitioner as an incident to his administering or dispensing of a controlled substance in the course of his professional practice, or
(2) By a practitioner, or by his authorized agent under his supervision, for the purpose of, or as an incident to, research, teaching or chemical analysis and not for sale.

We address ourselves to this question solely for the benefit of the bench and bar and point out that the above instruction would have no place in a trial wherein the indictment charges one with growing marijuana. The above instruction is simply an abstraction tracking the statute and should not be given where not supported by the evidence.

.Both the appellant and the State filed lengthy, scholarly briefs and six other errors were assigned. The Court has carefully reviewed the record, thoroughly read both briefs and appellant’s reply, and can find no merit in the other errors assigned.

AFFIRMED.

PATTERSON, C. J., SMITH and ROBERTSON, P. JJ., and SUGG, WALKER, BROOM, LEE, BOWLING and COFER, JJ., concur.

      . Sitting pursuant to Chapter 430, Laws of 1976. The above opinion is adopted as the opinion of the Court.


text:
    Martha Schuh SMITH v. Nelda T. HINTON.
    No. 50774.
    Supreme Court of Mississippi.
    Dec. 20, 1978.
    David A. Harris, Jackson, for appellant.
    Satterfield, Allred & Colbert, William L. Colbert, Jr., Jackson, for appellee.
    Before SMITH, P. J., LEE and COFER, JJ., and BOST, Commissioner.
   JAMES E. BOST, Commissioner for the Court:

This case was previously before the Supreme Court styled Smith v. Hinton, 349 So.2d 510 (Miss.1977). In the decision there, the principal question before the Court was whether or not undue influence was exercised by Hinton in obtaining an insurance policy and whether or not the Dead Man Statute applied. (The chancellor declined to permit Smith to testify). We held that the chancellor was in error in deciding the Dead Man Statute applied and that Smith could not testify. We affirmed his action in deciding that Hinton was not guilty of undue influence.

On the second trial of the case, the question before the Chancery Court of Hinds County was whether or not James Smith, in his lifetime, made an inter vivos gift of the twenty-five thousand dollar ($25,000) insurance policy to his wife, Martha Smith. The trial court held that there was no such gift and that Nelda T. Hinton was entitled to the proceeds of the policy. The first question is whether or not the chancellor erred in so holding.

James Smith was married to Martha Smith. He started an extramarital affair with Mrs. Hinton in about July, 1969. Previously, in April, 1969, he had purchased a $25,000 life insurance policy from Mutual of New York with Mrs. Smith designated as beneficiary. He came home with the policy and gave it to his wife with the words, “This is yours.” Mrs. Smith placed the policy in a desk she used, where other papers were kept. She testified, “That’s where we kept all our records, things like cancelled checks, receipts, bank statements, income tax returns and things like that.” She later placed the policy in a small tin lock box obtained from an insurance company and kept the box in a desk drawer. She said, “The policy lay ‘loose’ in the unlocked desk drawer for almost fourteen months before being placed in the lock box.” Mr. Smith was told the combination of the box by his son.

Mrs. Smith paid at least four (4) premiums on the policy, but testified, “Well, if I was the beneficiary, I felt I should contribute to making the payments.” She agreed that she paid premiums on all the policies including those on her own life and the children’s lives as part of the household bills. Mrs. Smith also testified that she never thought she had any right to the policy other than being a beneficiary, that she did not have rights to the cash value or loan value on the policy and that she maintained it in her possession for safekeeping like other family insurance papers such as automobile and home insurance.

On November 14, 1973, Mr. Smith requested his insurance agent to bring a change of beneficiary form to his motel room; he changed the beneficiary in the said insurance policy from Mrs. Smith to Mrs. Hinton, his mistress, and a month later he obtained a loan, assigning the policy as collateral. Mr. Smith died in June, 1975.

Both parties in this cause rely upon Stepson v. Brand, 213 Miss. 826, 58 So.2d 18 (1952), which upheld an inter vivos gift of certain bank notes. We think that the principles enunciated in Stepson apply to the present case. In Stepson, the Court said:

“According to the great weight of authority, however, the parol gift of a life insurance policy is valid where there is delivery of the policy by the donor to the donee and the other essential elements of a gift are present. In 24 Am.Jur., page 766, Sec. 70, it is said:
‘The general, if not the universal, rule is that a policy of insurance on the life of the donor may be made the subject of a gift in the same manner as any other chose in action. All the essential elements of a valid gift must be present. There must be a complete and absolute surrender of all power and dominion over the policy, and there must be an intention on the part of the donor to part absolutely with the title to it. . . . ’
******
We are mindful of the fact that proof of the gift in cases of this character should be clear and convincing so as not to open the way to fraud arising out of the mere possession of a pretended gift at the time of the death of the alleged donor.” 213 Miss. at 822-23, 835, 58 So.2d at 20, 22.

We conclude that the chancellor was manifestly correct in holding that there was no valid inter vivos gift of the insurance policy made by Mr. Smith to appellant.

The other question presented in this appeal is whether or not the trial court erred in ruling that appellant did not have a vested right to, or equitable lien on, the entire proceeds of the policy by reason of paying some of the premiums.

In 2 Appleton, Insurance Law and Practice, § 923 et seq., at 524 (1966) the general rule on this question is stated as follows:

“The usual rule is that a person not the beneficiary of the contract and, therefore, a stranger to it acquires no vested rights by the payment of premiums or assessments, in the absence of a contract with the insured as to this matter, as he is considered to be a mere volunteer. Nor is the mere expectancy on the part of such person that he will be designated as beneficiary sufficient to vest any rights therein.
The same rule has been followed in many cases where the person making such payments is the beneficiary, where such payments are not made as a result of contract between the beneficiary and the insured. When such payments are made in connection with contracts of ordinary life insurance where the power to change is reserved, or in connection with contracts of fraternal insurance, it has been held that the beneficiary acquires no vested rights and cannot prevent the insured from changing the designation of beneficiary. It has even been held that such payments are in the nature of gifts made to the insured by the beneficiary.”

A majority of the jurisdictions over the United States hold that a third person who pays the premiums on a policy of insurance is not entitled to reimbursement against the person entitled to the proceeds unless he makes such payments under an agreement with the insured or the beneficial owner of the policy or unless he pays the premiums in good faith under the belief that he is the beneficiary or has an insurable interest or to keep the policy alive. We conclude that the chancellor below was not manifestly wrong in holding that no agreement existed in the present case and that Mrs. Smith did not have a vested right to or equitable lien on the proceeds of the policy.

For the reasons stated, the judgment of the trial court is affirmed.

AFFIRMED.

PATTERSON, C. J., SMITH and ROBERTSON, P. JJ., and SUGG, WALKER, BROOM, LEE, BOWLING and COFER, JJ., concur.

      . Sitting pursuant to Chapter 430, Laws of 1976. The above opinion is adopted as the opinion of the Court.


author: BEATTY, Justice.

text:
    The FIRST NATIONAL BANK OF MOBILE, etc. v. CESSNA AIRCRAFT COMPANY, a corporation (Two cases). Sarah B. JERNIGAN, etc. v. CESSNA AIRCRAFT COMPANY, a corporation. Chris Elaine D. HUNNICUTT, etc. v. CESSNA AIRCRAFT COMPANY, a corporation.
    CER-14.
    Supreme Court of Alabama.
    Dec. 8, 1978.
    Broox G. Holmes and Norman E. Wal-drop, Jr., Mobile, for plaintiffs The First National Bank of Mobile, ... as Executor under the Last Will and Testament of Clarence Levi, deceased, etc., et al.
    Donald F. Pierce, William C. Roedder, Jr. and James B. Newman, Mobile, for defendant Cessna Aircraft Co.
   CERTIFIED QUESTION FROM UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA, SOUTHERN DIVISION

BEATTY, Justice.

Under Rule 18, ARAP, the United States District Court for the Southern District of Alabama, Southern Division, has requested this Court to answer a question of Alabama law which that court deems determinative of an action before it and on which there is no clear, controlling precedent in the decisions of this Court.

The federal district court has certified the following question (CER-14):

Whether as a matter of law the Alabama Extended Manufacturer’s Liability Doctrine applies where an injury or death results from the use of a defective product, an aircraft, where it is claimed that the product was placed in the stream of commerce by demonstration but no sale of the product has been made.

In Casrell v. Altec Industries, Inc., 335 So.2d 128 (Ala.1976) and in Atkins v. American Motors Corp., 335 So.2d 134 (Ala.1976), this jurisdiction adopted the Extended Manufacturer’s Liability Doctrine which imputes negligence as a matter of law to a manufacturer, or supplier, or seller who markets a product not reasonably safe when applied to its intended use in the usual and customary manner.

With reliance on Casrell and Atkins, supra, it has been argued that this doctrine should apply only in those cases in which there has been a sale in fact. This Court was careful to point out in Atkins, however, that we deliberately declined at that time to foreclose similar applications >f the Extended Manufacturer’s Liabilit Doctrine. Atkins at 144. Admittedly, Ga •ell and Atkins involved situations in wh: h sales had taken place. They did not px ..'port to encompass every application of the doctrine. Indeed, we carefully noted in Atkins that “the gravamen of the action is that the defendant manufactured or designed r.r sold a defective product which, because of its unreasonably unsafe condition, injured the plaintiff or damaged his property when such product, substantially unaltered, was put to its intended use.” Atkins at 139 (emphasis added). The disjunctive “or” indicated, at least inferentially, that liability might ensue whether or not an actual sale had taken place.

Nor do we consider that the Restatement of Torts 2d § 402A, on which the Extended Manufacturer’s Liability Doctrine is based, limits the principle to sales situations. The Restatement does speak in terms of “one who sells” and the “seller” as being liable. Perhaps a sale is the most common situation in which application of § 402A arises, but the policy behind § 402A supports the extension of liability to situations other than sales. Comment c. to § 402A is instructive:

On whatever theory, the justification for the strict liability has been said to be that the seller, by marketing his product for use and consumption, has undertaken and assumed a special responsibility toward any member of the consuming public who may be injured by it; that the public has the right to and does expect, in the case of products which it needs and for which it is forced to rely upon the seller, that reputable sellers will stand behind their goods; that public policy demands that the burden of accidental injuries caused by products intended for consumption be placed upon those who market them, and be treated as a cost of production against which liability insurance can be obtained; and that the consumer of such products is entitled to the maximum of protection at the hands of someone, and the proper persons to afford it are those who market the products. (emphasis added)

Marketing is defined as:

[A]n aggregate of functions involved in transferring title and in moving goods from producer to consumer including among others buying, selling, storing, transporting, standardizing, financing, risk bearing, and supplying market information. Webster’s Third New International Dictionary (G. & C. Merriam Co., 1971). (emphasis added)

The fact that a technical sale has not taken place should not relieve a manufacturer who has placed defective merchandise on the market. Quite the contrary, the manufacturer’s liability arises because he has placed the product on the market. A fortiori, having placed the product on the market, if the manufacturer still retains some measure of control, he should be liable under the doctrine.

The tendency of strict liability cases in other jurisdictions is to extend liability in non-sale situations: Delaney v. Towmotor Corp., 339 F.2d 4 (2d Cir. 1964) (demonstration of fork lift truck); Cintrone v. Hertz Truck Leasing and Rental Service, 45 N.J. 434, 212 A.2d 769 (1965) (lease of a truck); McKisson v. Sales Affiliates, Inc., 416 S.W.2d 787 (Tex.1967) (free sample given to prospective customer); Perfection Paint and Color Co. v. Konduris, 147 Ind.App. 106, 258 N.E.2d 681 (Ind.1970) (free lacquer reducer furnished following sale).

In Delaney v. Towmotor Corp., supra, the plaintiff sustained injuries from defective equipment which had been lent to his employer for a demonstration. Applying New York law, the court found that liability of the manufacturer arose from “ ‘[hjaving invited and solicited the use’ ” of the machine. 339 F.2d 6.

Perfection Paint and Color Co. v. Konduris, supra, involved an action against a supplier who had sold paint which did not properly adhere to the purchaser’s floor. To remove the paint the supplier furnished a paint remover and lacquer reducer free of charge. The highly volatile lacquer reducer was ignited by a hot water heater and the resulting fire fatally injured the purchaser’s employee. In holding the supplier liable, the court adopted the approach of Delaney, that when a manufacturer or supplier had placed a defective article in the “stream of commerce,” whether an actual sale had taken place or not, the manufacturer or supplier owed a special duty and responsibility to protect prospective customers.

Not only does decisional authority emphasize the “stream of commerce” in fixing liability, but it is also the more reasonable view. When a product is placed in the “stream of commerce,” the marketing cycle as it were, whether by demonstration, lease, free sample or sale, the doctrine should attach. In each of these situations the profit motive of the manufacturer is apparent whether or not a “sale” in the strict sense takes place. Moreover, the manufacturer who enters the market is in a better position to know and correct defects in his product and as between him and his prospective consumers should bear the risk of injury to those prospective consumers when any such defects enter the market uncorrected. Justification for this doctrine is founded on “broader moral notions of consumer protection and on economic and social grounds, placing the burden to compensate for loss incurred by defective products on the one best able to prevent the distribution of those products.” Atkins at 139.

CERTIFIED QUESTION ANSWERED IN THE AFFIRMATIVE.

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


author: EMBRY, Justice.

text:
    CONSOLIDATED PIPE AND SUPPLY COMPANY, INC. v. STOCKHAM VALVES AND FITTINGS, INC., and Louisiana Valve and Fittings Company, Inc. LOUISIANA VALVE AND FITTINGS COMPANY, INC. v. STOCKHAM VALVES AND FITTINGS, INC.
    77-291-77-294.
    Supreme Court of Alabama.
    Dec. 22, 1978.

      Larry W. Harper and Jack B. Porterfield, Jr., of Dunn, Porterfield, Scholl & Clark, Birmingham, for appellant, Consol. Pipe & Supply Co., Inc. (77-291, 77-292).
    H. H. Grooms, Jr., and H. L. Ferguson, Jr., of Spain, Gillon, Riley, Tate & Ether-edge, Birmingham, for appellant, Louisiana Valve & Fittings Co., Inc. (77-293, 77-294).
    Edward 0. Conerly, Birmingham, for ap-pellee, Stockham Valves & Fittings, Inc. (77-291, 77-292, 77-293, 77-294).
   EMBRY, Justice.

These suits were commenced by Retha Cunningham and Dorothy Thomas, the widows of two men who were killed by the explosion of an underground steam valve while working for Alabama-Power Company. Although several defendants were initially named, the suits when consolidated, tried, and submitted to the jury were against Stockham Valves and Fittings Company, Inc. (Stockham), the valve’s manufacturer, Louisiana Valve and Fittings Company, Inc. (Louisiana), an intermediate distributor, and Consolidated Pipe and Supply Company, Inc. (Consolidated), a local distributor. Consolidated cross-claimed against Louisiana and Stockham, and Louisiana cross-claimed against Stockham, for indemnity in the event they would be held liable to Cunningham and Thomas. Alabama Power intervened claiming the amounts paid each of the two widows under the Workmen’s Compensation Act.

At the close of all the evidence the trial court directed verdicts in favor of Stoekham and Louisiana on Consolidated’s cross-claim against them and in favor of Stoekham on Louisiana’s cross-claim against it. The case was submitted to the jury on theory of the Alabama Extended Manufacturer’s Liability Doctrine (AEMLD). Verdicts were returned in favor of the plaintiffs and Alabama Power Company. Stoekham ánd Louisiana each moved for JNOV and new trial. Consolidated only moved for a new trial. The trial court found the verdicts to be excessive and overruled the motions after Cunningham and Thomas each filed remitti-turs. The judgments were paid by Stock-ham, Louisiana and Consolidated and are not appealed.

Louisiana and Consolidated appeal claiming as error the trial court’s directed verdict denying their cross-claims for indemnity. They contend there is an exception to the rule prohibiting contribution among joint tortfeasors in Alabama where one tort-feasor is guilty of only passive or constructive negligence and the other of active negligence. See City of Mobile v. George, 253 Ala. 591, 45 So.2d 778 (1950); Walter L. Couse and Co. v. Hardy Corporation, 49 Ala.App. 552, 274 So.2d 316 (1972); Mallory S. S. Co. v. Druhan, 17 Ala.App. 365, 84 So. 874 (1920). Appellants Consolidated and Louisiana each contend they presented a scintilla of evidence showing they were only constructively or passively negligent, therefore, the trial court should have allowed their cross-claims to go to the jury.

We disagree.

No authority need be cited to support the proposition that there is no contribution among joint tortfeasors in Alabama. The cases cited by Louisiana and Consolidated to show the existence of an exception to the rule are distinguishable from this case. In City of Mobile, Walter L. Couse and Co., and Mallory S. S. Co., supra, in each instance the indemnitee was under an absolute or non-delegable duty to the injured plaintiff. In this case Louisiana and Consolidated were not liable to the deceased consumers under any absolute or strict liability doctrine, but rather under AEMLD. In Casrell v. Altec Industries, Inc., 335 So.2d 128 (Ala.1976), this court specifically retained the tort concept of fault in AEMLD.

Louisiana and Consolidated further argue, however, that because there was a scintilla of evidence to show that Stoekham created a latent defect which no inspection by them, short of destroying the valve, would have revealed they were held absolutely liable even though the cause of action was under AEMLD. Stoekham responds to appellants’ contention by asserting appellants were not held absolutely liable because under AEMLD they had available to them the “no causal relation” defense. In Atkins v. American Motors Corp., 335 So.2d 134, 143 (Ala.1976), this court set out the elements of that defense.

“Causal Relation. The defendant may establish that there is no causal relation in fact between his activities in connection with handling the product and its defective condition. For example, the defendant may show that he is in the business of either distributing or processing for distribution finished products; he received a product already in a defective condition; he did not contribute to this defective condition; he had neither knowledge of the defective condition, nor an opportunity to inspect the product which was superior to the knowledge or opportunity of the consumer.” (emphasis added)

Louisiana and Consolidated contend that although they had presented a scintilla of evidence to show the product was received in a defective condition; they had not contributed to it or known of it; that no inspection would have revealed the defect, nonetheless the defense was unavailable to them because they did have an opportunity to inspect the valve which was superior to that of the deceased consumers. They further claim that since the valve, once installed, contained steam at a pressure of 150 pounds per square inch, at a temperature of 350° F, the consumers could have made no inspection of any kind.

Appellants have misconstrued this element of the “no causal relation” defense. The “superior opportunity” must be a meaningful one. If the defect was latent and could not have been discovered by either consumer or distributor by a reasonable inspection, neither had a superior opportunity. Thus, appellants did have this defense available to them and cannot be said to have been held to an absolute duty. The trial court instructed the jury about this defense and any error committed in instructing the jury concerning the meaning of “superior opportunity” should have been preserved at trial.

Louisiana and Consolidated, therefore, come under no exception to the rule prohibiting contribution among joint tort-feasors and have no right of indemnity in this case. Therefore, the directed verdicts of the circuit court denying their cross-claims against Stockham were proper.

Consolidated further contends its cross-claim against Louisiana for indemnity should have been allowed to go to the jury. Consolidated bases its claim on a breach of warranty. Notice is a condition precedent to any claim for breach of warranty. § 7-2-607, Code 1975; Page v. Camper City & Mobile Home Sales, 292 Ala. 562, 297 So.2d 810 (1974). Consolidated offered no evidence to show it had given Louisiana notice of the breach. Therefore, the trial court’s direction of a verdict denying its cross-claim against Louisiana was without error.

To permit appellants to prevail on this appeal would be to permit that which cannot be done directly to be done indirectly; contribution between tortfeasors.

The judgments in these cases are due to be, and are hereby, affirmed.

AFFIRMED.

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


author: BEATTY, Justice. MADDOX, Justice

text:
    Julia E. THOMPSON v. Johnnie Mae KEITH, as Executrix, etc.
    77-454.
    Supreme Court of Alabama.
    Dec. 22, 1978.

      Robert A. Jones, Jr., Birmingham, for appellant.
    Donald W. Lang, Sylacauga, for appel-lees.
   BEATTY, Justice.

This is an appeal from the denial of plaintiff’s motion for new trial and/or motion to vacate the judgment. We dismiss the appeal.

The facts of this case are not uncomplicated. In 1970 certain real property was deeded to plaintiff, Julia Thompson, by Rosa Jones. On April 18, 1972, however, Rosa filed a suit to set aside the deed. Thereafter a decree pro confesso was entered against Julia by the register in equity. Rosa died in 1973, and two years later on September 17,1975 a substitution of parties was made pursuant to a motion by the present defendant, Johnnie Mae Keith, executrix of Rosa’s estate. That same day a judgment was entered against Julia Thompson declaring the deed null and void.

The present action was brought two years later on April 15, 1977 seeking to set aside the earlier judgment. On November 10,1977 the court entered judgment against plaintiff holding that a determination against plaintiff on the issue of service of process operated as a final determination of the matter.

On December 2, 1977 plaintiff filed a motion for new trial. At the January 10, 1978 hearing on that motion the plaintiff filed an amended motion for new trial and/or a motion to vacate the judgment. The motion for new trial was overruled that same day. No notice of that ruling was given to either party. Several weeks later the plaintiff discovered the January 10 ruling on that motion and asked the court to rule on the amended motion. The court obliged and overruled the amended motion. From the ruling denying the amended motion for a new trial the plaintiff appeals.

The following dates are pertinent to this discussion:

November 10, 1977 - Final judgment adverse to plaintiff.
December 2, 1977 - Motion for new trial filed.
January 10, 1978-Hearing on pending motion. Amended motion for new trial and/or motion to vacate filed. Motion of December 2 shown by record to have been overruled.
March 1, 1978 - Amended motion overruled.
April 12, 1978 - Plaintiff filed notice of appeal.

The timely filing of the notice of appeal, is a jurisdictional act. Holmes v. Powell, 363 So.2d 760 (Ala.1978); Morris v. Merchants National Bank, 359 So.2d 371 (Ala.1978); See Committee Comments to Rule 3, ARAP.

Rule 4(a), ARAP provides in part:

(1) Except as otherwise provided herein, in all cases in which an appeal is permitted by law as of right to the Supreme Court or to a court of appeals, the notice of appeal required by Rule 3 shall be filed with the clerk of the trial court within 42 days (6 weeks) of the date of the entry of the judgment or order appealed from. .
(3) The filing of a post-trial motion pursuant to Rules 50, 52 and 59 . (ARCP) shall suspend the running of the time for filing a notice of appeal. In cases where post-trial motions are filed, the full time fixed for filing a notice of appeal shall be computed from the date of the entry in the civil docket of an order granting or denying such motion.

It is undisputed that the December 2, 1977 motion for new trial was timely made under Rule 59(b), ARCP. Because it was a timely post-trial motion within the meaning of Rule 4(a)(3), ARAP, the 42-day period of Rule 4(a)(1) was tolled. Difficulties sometime arise over the fact that the 42-day period is not tolled indefinitely but begins to run again on the happening of certain events. For example, as we held in Board of Water & Sewer Commissioners of Mobile v. Alabama Power Company, 363 So.2d 304 (Ala.1978) where there has been no entry of an order granting or denying an appropriate post-trial motion the period for appeal begins to run 90 days from the filing of the motion because at that point the motion is deemed denied by operation of law. Rule 59.1, ARCP. Where, however, there has been the entry of an order denying the post-trial motion then the period for notice of appeal begins to run at that point in time. The crucial issue then is at what point did the period for this appeal begin to run. This issue is complicated by the presence of the amended motion for new trial and/or motion to vacate the judgment.

The plaintiff’s contentions concerning the “amended motion” are in essence two-pronged. On the one hand she argues that her motion of January 10 was an amendment to the already pending motion for new trial. On the other hand she appears to argue that the “amended motion” was a separate post-trial motion. In either case we hold that the 42-day period of Rule 4, ARCP began to run from January 10, 1978 and therefore the April 12, 1978 filing of the notice of appeal was untimely leav-. ing us without jurisdiction to review. Holmes v. Powell, supra. This follows because if the motion for new trial of December 2, 1977 was amended by the “amended motion” on January 10, 1978 then, of course, when the motion was denied, the amendments to that motion were denied as well. The record shows that the pending motion of December 2, 1977 was overruled and denied by order entered on January 10, 1978. Therefore under Rule 4 the 42-day period would begin to run from that date. Counting then from the next day pursuant to Rule 6(a), ARCP the period for timely appeal was exhausted on the 21st day of February, 1978. Clearly then, under this prong of plaintiff’s assertion the appeal was not timely. As for the second possibility concerning the “amended motion” we need only direct the plaintiff to Rule 59(b), (e), ARCP. That rule requires that a motion for new trial, and a motion to alter, amend or vacate a judgment be filed not later than 30 days after the entry of judgment. In this case judgment was entered on November 10, 1977. Therefore 30 days from that date the time in which to make a timely post-trial motion under this rule had run. As we have shown Rule 4(a)(3), ARAP instructs that only a post-trial motion filed pursuant to Rules 50, 52, and as in this case, Rule 59 will toll the period for appeal. See also Seale v. Seale, 339 So.2d 1028 (Ala.Civ.App.1976), cert. den. 339 So.2d 1029 (Ala.1976). Here the only timely post-trial motion filed was the motion for new trial of December 2, 1978. Hence only that motion could affect the time for appeal and when that motion was denied on January 10,1978 the period for appeal under Rule 4, ARAP began to run.

Plaintiff argues, though, that her motion to correct or modify the record and affidavits thereto pursuant to Rule 10(f), ARAP establish that the motion as amended was not denied until March 1, 1978, 90 days from the filing of the December 2 motion for new trial, and that therefore the 42-day period began at that time. Rule 10(f), ARAP provides:

If any difference arises as to whether the record truly discloses what occurred in the trial court, the difference shall be submitted to and settled by that court and the record made to conform to the truth. If anything material to either party is omitted from the record by error or accident or is misstated therein, the parties by stipulation, or the trial court either before or after the record is transmitted to the appellate court, or the appellate court, on proper suggestion or of its own initiative, may direct that the omission or misstatement be corrected, and if necessary that a supplemental record be certified and transmitted. All other questions as to the form and content of the record shall be presented to the appellate court, (emphasis added)

We do not find that plaintiff is aided by her motion under 10(f) because it is apparent that the record was not corrected or changed to reflect that the motion was not overruled on January 10,1978. What plaintiff has shown by use of her affidavits is merely that the trial court attempted to overrule on March 1, 1978 the same motion it had previously overruled on January 10, 1978 or a post-trial motion untimely filed under Rule 59, ARCP. That there was no notice to the parties of the January 10,1978 denial of the motion is indeed regrettable, but this alone cannot affect the outcome of this case. Rule 77(d), ARCP is specific on that point:

Lack of notice of the entry by the clerk does not affect the time to appeal or relieve or authorize the court to relieve a party for failure to appeal within the time allowed, except that upon a showing of excusable neglect, based on a failure of the party to learn of the entry of the judgment or order the circuit court in any action may extend the time for appeal not exceeding 30 days from the expiration of the original time now provided for appeals in civil actions, (emphasis added)

The record does not show that appellant made the required showing of excusable neglect to the trial court or that the court extended the time period in which to make an appeal. But even if this had occurred the appeal would still have been untimely because 30 days added to the 42-day period which ended the 21st day of February would have only extended the period to March 23, 1978. As we have shown, however, plaintiff’s notice of appeal was not filed until April 12, 1978 clearly beyond the time period of Rule 4, ARAP under this or any of the above set of circumstances. Accordingly, the appeal must be dismissed.

APPEAL DISMISSED.

JONES and SHORES, JJ., concur.

TORBERT, C. J., and MADDOX, J., concur specially.

MADDOX, Justice

(concurring specially).

While the record does not affirmatively show that the amendment to the motion for a new trial was made prior to the court’s order overruling the motion on January 10, I assume that the amendment was filed prior to the time the trial judge ruled on the motion for new trial. A trial judge has discretion, of course, to allow an amendment to a motion to state an additional ground for the granting of the motion even beyond the 30-day period if the original motion was timely. Moore’s Federal Practice and Procedure, para. 59.09[2]; See Pogue v. Int’l Industries, Inc., 524 F.2d 342 (6 Cir. 1975).

The trial court’s ruling on January 10, in my opinion, applied to the motion, as amended; therefore, the 42-day time period for appeal began to run on January 10. In view of this, the order of March 1, was a nullity.

TORBERT, C. J., concurs.


author: FAULKNER, Justice.

text:
    Eugene W. CHILDS, etc. v. AIR PRODUCTS, INC.
    77-658.
    Supreme Court of Alabama.
    Dec. 22, 1978.
    John C. Dowling of Dowling & Carmichael, Enterprise, for appellant.
    J. E. Sawyer, Jr., of Rowe, Rowe & Sawyer, Enterprise, for appellee.
   FAULKNER, Justice.

Plaintiff Air Products brought suit against Eugene W. Childs, d/b/a Farmers Agricultural Services, Inc., on open account and on a promissory note. The corporation itself was not included as a defendant. The trial court granted summary judgment for Air Products. We reverse.

It appears from materials submitted on summary judgment, apparently, by plaintiffs themselves, that Air Products was not entitled to summary judgment against Childs individually. The original complaint sought recovery on open account. Invoices completed by Air Products made reference only to Farmers Agricultural Services and in no way showed that Childs was individually liable on the account. The amended complaint sought recovery on a promissory note. The note stated, “For value received, Eugene W. Child [sic], individually for Farmers Agricultural Service [sic], Inc., the undersigned promises to pay . . .” The note was signed by “Eugene W. Child(s) for Farmers Agricultural Service [sic], Inc.” A space for the signature of “Eugene W. Child [sic], Individually” was left blank. Thus, the note itself presented a question of fact of whether or not Childs was individually liable on the note.

On summary judgment the moving party “must clearly establish that the other party could not recover under ‘any discernible circumstances.’ ” Folmar v. Montgomery Fair Co., Inc., 293 Ala. 686, 690, 309 So.2d 818, 822 (1975). Plaintiff has not done that here. In fact, Air Products has shown by its own supporting material that there is a question of fact of any individual liability on the part of Childs. Consequently, summary judgment was inappropriate.

REVERSED AND REMANDED.

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


author: PER CURIAM.

text:
    James H. DODD v. BOARD OF COMMISSIONERS OF the ALABAMA STATE BAR.
    BAR 77-4.
    Supreme Court of Alabama.
    Jan. 5, 1979.

      J. Louis Wilkinson, William Brent Dodd, Birmingham, for appellant.
    William H. Morrow, Jr., Gen. Counsel Alabama State Bar, Montgomery, for appel-lee.
    Francis H. Hare, Sr., Birmingham, ami-cus curiae, for appellant.
   PER CURIAM.

Four charges were filed against James H. Dodd for solicitation in violation of Disciplinary Rule 2-103(A)(l), Code of Professional Responsibility. Two of these charges were subsequently nol prossed. The Board of Bar Commissioners found Dodd not guilty on one of the remaining charges and guilty on the other charge. He was suspended from the practice of law for two years. He appealed.

This proceeding before the Board of Bar Commissioners occurred prior to the effective date of the new Rules of Disciplinary Enforcement, published in Alabama Reporter, 353-355 So.2d XXXVII (1977-78). The Board of Bar Commissioners, therefore, had before it only a written record of proceedings held before one commissioner. In other words, the Board of Bar Commissioners did not hear the evidence at first hand, but only reviewed a record. Therefore, no presumption of correctness attaches to the Commissioners’ findings of fact. The rule of review in such cases has been stated many times. Where testimony is not taken orally before the Board of Bar Commissioners, but instead was taken before a commissioner, reduced to writing and reviewed in that form by the Board of Commissioners and then appealed, it then becomes the duty of this court to examine all of the evidence and to form its own judgment as to its probative force without any presumption in favor of the finding of the Board. Smiley v. Board of Commissioners of Alabama State Bar, 286 Ala. 216, 238 So.2d 716 (1970); Ex parte Acton, 283 Ala. 121, 214 So.2d 685 (1968); Norden v. Capps, 272 Ala. 473, 131 So.2d 679 (1959); Loveman v. Lay, 271 Ala. 385, 124 So.2d 93 (1960); Carnegie v. Carnegie, 261 Ala. 146, 73 So.2d 556 (1954); Adams v. Logan, 260 Ala. 346, 70 So.2d 786 (1954); Tanner v. Dobbins, 255 Ala. 671, 53 So.2d 549 (1951).

This procedure is a cumbersome one and casts a heavy burden on this court. Hopefully, it has been materially improved by the adoption recently of the new Rules of Disciplinary Enforcement. However, in this case we have done what we are required to do — we have examined all of the evidence adduced in support of the charge on which Mr. Dodd was found to have violated Rule 2-103(A)(l) of the Code of Professional Responsibility, which provides:

“(A) A lawyer shall not:
“(1) Solicit his employment or professional engagement or the professional employment or engagement of another whose partner he is, or from whose employment there is an expectation of profit or benefit, directly or indirectly, to himself.”

We conclude that the State Bar has failed to carry its burden of proving the charged attorney guilty of violating this rule. The privilege to practice law is a valuable possession. No one should be removed or suspended from the practice of his profession on evidence which leaves his guilt of the charge unclear. In Ex parte Acton, supra, 283 Ala. at 125, 214 So.2d at 688, we said:

“When the burden of proving a fact rests upon a party [here the State Bar], and the evidence leaves the fact in a state of doubt and uncertainty, it cannot be regarded as established. . . . ”

In this case, four witnesses, albeit relatives of Dodd, testified that Mrs. Myrtle Holt, who had been severely injured in an automobile accident, asked that Mr. Dodd be sent to the hospital. It is undisputed that he went and that Mrs. Holt signed a contingent fee contract authorizing Dodd to represent her. Mrs. Holt does not deny that he did represent her to her satisfaction in the settlement of her ease. There was some dispute about Dodd’s fee and he reduced it. Mrs. Holt, the only witness against Dodd, insists that she did not send for him, but acknowledged that she had known him socially for some years and met him through his relatives who testified that she asked them to send him to see her.

Rule 2-103(A)(l) expressly forbids a lawyer’s solicitation of his employment and it should be strictly enforced. Lawyers should be required to observe the rules and should be mindful not to conduct themselves so as to give the appearance of violating them. But the State Bar has the burden in a disciplinary proceeding to show by the evidence that the lawyer has violated the rules. Having reviewed all of the evidence without any presumption, we are not reasonably satisfied from it that Dodd violated the above rule. The State Bar failed to carry the burden placed on it by the law. Its decision is, therefore, reversed and the cause is rendered in favor of appellant.

REVERSED AND RENDERED.

All the Justices concur.


author: WRIGHT, Presiding Judge.

text:
    SUGGS MUSIC COMPANY, INC., a corporation v. STATE of Alabama, DEPARTMENT OF REVENUE.
    Civ. 1529.
    Court of Civil Appeals of Alabama.
    Nov. 1, 1978.
    Rehearing Denied Nov. 29, 1978.

      Virgil K. Sandefer, Birmingham, Daniel E. Morris, Anniston, for appellant.
    William J. Baxley, Atty. Gen. of Ala., and Herbert I. Burson, Jr., Chief Counsel Dept, of Revenue and Asst. Atty. Gen., Ron J. Bowden, Asst. Counsel Dept, of Revenue and Asst. Atty. Gen., John J. Breckenridge, Asst. Counsel Dept, of Revenue and Asst. Atty. Gen., for appellee.
   WRIGHT, Presiding Judge.

The taxpayer-plaintiff in the suit below, Suggs Music Company, Inc., is engaged in the vending machine business. During the years 1970-1974, Suggs purchased a number of used machines. Some of these machines were used as temporary replacements for machines on location, and some were stripped for spare parts. These surplus machines were stored in a warehouse, and licenses were not purchased for them.

Suggs testified that he was in the practice of affixing license decals to his machines on location with Scotch tape so that the decals could be removed and placed on the temporary replacement machines when he was forced to exchange a machine. Suggs defends that practice by contending on appeal that the license fee in question, as required under Tit. 51 § 613, Code of Alabama (1940) (Recomp.1958) (1973 Cum. Pocket Part), is designed to be on a particular location rather than on each machine. With this contention we cannot agree. Section 613 provides in pertinent part:

“And a separate license shall be issued for each such machine, which license shall be prominently displayed on or attached to such machine, . . . ”

The trial court determined that this section required a license for each machine placed on location and operated within the state, even though the machine was only a temporary replacement for another licensed machine. We agree with that determination.

Suggs could not give exact figures as to how many unlicensed machines he had used for replacement purposes during any year in question. The record reflects that Suggs’ testimony was ambiguous and contradictory on this question. He indicated that up to two hundred machines may have been in his warehouse and on his depreciation schedule during the applicable time period. The taxpayer’s records were also inadequate to reflect the number of machines capable of use as replacements during this period because Suggs’ receipt data was broken down by location and not by each machine.

The trial court determined, after hearing the evidence ore tenus, that eighty-five surplus machines could have been used for replacement purposes during each of the years between 1971 and 1974. This court notes that the figure of eighty-five additional machines represents the lesser of the possible estimates that could have been made by the trial court after hearing the evidence. The trial court ordered the Department of Revenue to reassess the amount due from Suggs based on the use of eighty-five additional machines for each of those three years.

It is the general rule that where there is a conflict in the testimony of witnesses, the trier of fact has the duty to resolve it as best he can under the circumstances. Cordell v. Poteete, 57 Ala.App. 645, 331 So.2d 400 (1976). Of course, when a trial court renders judgment after hearing witnesses ore tenus, every presumption will be indulged in favor of the trial court and its findings will not be disturbed unless palpably wrong. Cowden v. Hughes, 353 So.2d 505 (Ala.1977). In the absence of reliable records, which it is the taxpayer’s duty to maintain, and in view of the ambiguous testimony, this court certainly cannot say that the trial court erred. Its judgment is therefore affirmed.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


text:
    Ex parte SUGGS MUSIC COMPANY, INC., a corporation.
    78-151.
    Supreme Court of Alabama.
    Jan. 19, 1979.
   FAULKNER, Justice.

WRIT DENIED.

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


text:
    Thomas Donald SHAVER v. Geraldine Odom SHAVER.
    Civ. 1533.
    Court of Civil Appeals of Alabama.
    Nov. 1, 1978.
    Rehearing Denied Nov. 29, 1978.

      Elno A. Smith, Jr., Montgomery, for appellant.
    David B. Byrne, Jr., Montgomery, for ap-pellee.
   WRIGHT, Presiding Judge.

This is a divorce case. The husband appeals from the judgment provisions awarding the wife attorney fees, periodic alimony and an automobile. We affirm.

The parties were divorced upon the petition of the wife alleging a state of incompatibility in the marriage of thirty-eight years due to the drinking and verbal abuse of the husband. The court heard the testimony orally and entered its judgment. There are no unusual facts to remove this case from the general rule that the judgment of the trial court is presumed correct on appeal and may not be reversed except when without support in the evidence or is clearly wrong and unjust. Weed v. Weed, 358 So.2d 459 (Ala.Civ.App.1978); Meyers v. Meyers, 55 Ala.App. 697, 318 So.2d 725 (1975). However, we will deal briefly with the issues presented on appeal.

The first issue is the correctness of i the award to the wife of a 1976 model automobile purchased from funds of the husband. The award of alimony and the division of property are matters within the discretion of the trial court. It is not cause for reversal that property awarded to the wife was purchased with funds belonging solely to the husband. Mullinax v. Mullinax, 56 Ala.App. 676, 325 So.2d 185 (1976); Helms v. Helms, 54 Ala.App. 551, 310 So.2d 475 (1975).

The issue of the correctness of an award,of attorney fees to the wife without proof of reasonableness has been answered by the decisions in Godec v. Godec, 346 So.2d 459 (Ala.Civ.App.1977); Hodson v. Hodson, 276 Ala. 227, 160 So.2d 637 (1964). There was no error.

The issue of the constitutionality of the Alabama alimony statute has been previously answered by the court in the case of Orr v. Orr, 351 So.2d 904 (Ala.Civ.App.1977). That case is now pending before the U. S. Supreme Court. We further respond to that issue by citing the well known rule that constitutional questions will not be considered when first presented on appeal. Caylor v. Caylor, 344 So.2d 173 (Ala.Civ.App.1977).

Upon her request, the wife is awarded the sum of $500 as attorney fee on appeal.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


author: BLOODWORTH, Justice.

text:
    Ex parte Thomas Donald SHAVER.
    78-156.
    Supreme Court of Alabama.
    Jan. 19, 1979.
   BLOODWORTH, Justice.

WRIT DENIED.

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


author: BRADLEY, Judge.

text:
    Johnny T. CARNES v. Dora CARNES (Wedaman).
    Civ. 1621.
    Court of Civil Appeals of Alabama.
    Nov. 1, 1978.
    Rehearing Denied Dec. 6, 1978.

      Fred Blanton, Birmingham, for appellant.
    Roger A. Brown, Birmingham, for appel-lee.
   BRADLEY, Judge.

, Defendant appeals from an order entered by the Circuit Court of the Tenth Judicial Circuit of Alabama, Jefferson County, declaring as void a previous order dated October 31, 1977. We affirm.

The parties to this appeal were divorced in 1970, and later entered into an agreement concerning child support payments, insurance, and payment of certain debts. After a hearing the circuit court entered an order on July 13, 1977 (hereinafter referred to as the “July order”), pertinent portions of which found defendant, Johnny T. Carnes, in arrears in child support payments and in default on payment of a certain debt which defendant had agreed to pay. The order also increased the amount of future child support payments.

Defendant filed a motion for new trial on July 28, 1977. Relevant portions of that motion, i. e. paragraphs number six and number seven, and exhibits attached thereto, tended to show that defendant’s income was somewhat less than the amount stated in the July order, and that the amount of the debt which defendant had agreed to pay was less than the amount stated as outstanding in the July order.

Ninety-five days after defendant’s motion for new trial had been filed, the court, without ordering a new trial or a rehearing, entered an order (dated October 31, 1977, and hereinafter referred to as the “October order”) modifying and in substitution for the July order. The new amounts in the October order found to be owed by defendant represented a recalculation of the previously stated amounts based on the exhibits submitted with defendant’s motion for new trial.

Following the October order defendant again moved for a new trial. On December 16, 1977 plaintiff filed a motion to strike defendant’s second motion for new trial and also to strike the October order. On December 22, 1977 plaintiff petitioned the court for a rule nisi directing defendant to show cause why he should not be held in contempt of court for failure to abide by the July order. On January 4, 1978 the court entered an order (hereinafter referred to as the “January order”) which denied defendant’s second motion for new trial and which, in effect, reaffirmed the October order. Plaintiff’s motion to strike was never ruled on.

Finally, on June 28, 1978, during a hearing on plaintiff’s petition for a rule nisi, the court entered an order (hereinafter referred to as the “June order”) declaring that “the order dated October 31, 1977, amending or further modifying the Court’s prior Order of July 31, 1977, be and the same is hereby declared a nullity and of no force or effect.” The June order was based on ARCP 59.1 which provides in part:

No post-trial motion filed pursuant to Rules 50, 52 or 59 shall remain pending in the trial court for more than 90 days, unless with the express consent of all the parties, which consent shall appear of record, or unless extended by the appellate court to which an appeal of the judgment would lie, and such time may be further extended for good cause shown. A failure by the trial court to dispose of any pending post-trial motion within the time permitted hereunder, or any extension thereof, shall constitute a denial of such motion as of the date of the expiration of the period.

On appeal defendant argues that the court erred in entering the June order which voided the October order. Defendant contends that paragraphs number six and number seven in his motion filed July 28, 1978—which was styled “Motion for New trial”—were valid grounds for a motion under ARCP 60(b)(6), and that those portions of his motion should be treated as a Rule 60(b) motion, thereby removing the motion from the strictures of Rule 59.1 and thus validating the October order. Defendant further contends that paragraphs number six and number seven may be properly viewed as grounds for a motion under ARCP 60(a), and that the October order was merely a correction of the July order which caused the July order “to speak the entire truth from the record,” citing Mickle v. Mickle, Ala., 334 So.2d 900 (1976).

We believe these contentions are without merit and that the June ordér properly declared the October order void. It is abundantly clear from this record that the court failed to act on defendant’s motion for new trial within ninety days of said motion’s filing, and that defendant failed to obtain an extension of that time limit by securing either consent of all parties to the action or an extension granted by the appellate court. Under these circumstances defendant’s motion for new trial was deemed denied at the expiration of the ninety day period, ARCP 59.1; and any order issued thereafter by the court was void and of no force or effect. See Sparks Construction Co. v. General Mutual Insurance Co., Ala., 334 So.2d 897 (1976).

After the expiration of that ninety day period defendant had several alternatives. He could have appealed from that denial of his motion, or he could have filed a motion under ARCP 60. However, he chose not to pursue these remedies.

The Alabama Rules of Civil Procedure state that motions “shall state with particularity the grounds therefor, and shall set forth the relief or order sought." ARCP 7(b)(1) (emphasis supplied). The relief sought in defendant’s motion of July 28, 1977 was a rehearing and a stay of the July order pending that rehearing. It does not appear either from that motion or from the entire record in this case that defendant intended the motion to be a motion for relief from judgment until this appeal was filed.

Defendant now attempts to escape the consequences of Rule 59.1 by asking this court to treat portions of his motion for new trial as a motion for relief from judgment under ARCP 60(b)(6) which provides:

On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: ... (6) any other reason justifying relief from the operation of the judgment.

Our cases hold that a Rule 60(b) motion cannot be used to extend the time for appeal. Personnel Board for Mobile County v. Bronstein, Ala.Civ.App., 354 So.2d 8 (1977), cert. den Ala., 354 So.2d 12 (1978); State v. Wall, Ala., 348 So.2d 482 (1977). Similarly, we do not believe that defendant should be allowed to argue now for the first time that his motion for new trial was in reality a Rule 60(b) motion simply to avoid the applicability of Rule 59.1. While our Rules of Civil Procedure contemplate a liberal construction of pleadings and motions, we do not think they envision the kind of construction defendant now urges.

Defendant argues that Rule 59.1 should be limited to those cases wherein a party improperly attempts to extend the time for filing notice of appeal, and that courts should be “particularly alert to the possibility that Rule 59.1 philosophy may find its way into Rule 60 and destroy to a large extent that rule.” However, Rule 59.1 by its terms is not so limited, and our assent to defendant’s contention that his motion for new trial should be treated as a Rule 60(b) motion would, in effect, allow Rule 60 to destroy to a large extent Rule 59.1.

Nor do we think ARCP 60(a) is applicable to the case at bar. That rule deals solely with the correction of clerical errors. Errors of a more substantial nature, such as that involved in this case, are to be corrected by a motion under Rules 59(e) or 60(b). A Rule 60(a) motion cannot be used to make the record or judgment say something other than what was originally pronounced. See ARCP 60 and committee comments thereto.

Lastly, defendant contends that during the June 28, 1978 hearing on plaintiff’s petition for rule nisi, plaintiff orally raised the issue of the validity of the October order, rather than properly raising the issue in written motion with service and notice to defendant as required by Rule 5, ARCP. Defendant further argues that the January order — which, in effect, upheld the October order — constituted an implicit denial of plaintiff’s earlier written motion to strike, and thus plaintiff was estopped from interposing the issue of the validity of the October order during the June hearing. We disagree.

The Alabama Supreme Court said in McDonald v. Lyle, 270 Ala. 715, 121 So.2d 885 (1960):

Where it appears on the face of the record that a judgment is void, either from want of jurisdiction of the subject matter or of the defendant, it is the duty of the court, on application by a party having rights and interests immediately involved, to vacate the judgment or decree at any time subsequent to its rendition. [Citations omitted.]

See also, Burks v. Zeanah, 54 Ala.App. 55, 304 So.2d 610 (1974). That plaintiff’s rights and interests were immediately affected by the October order is beyond question.

We think that plaintiff’s oral motion properly raised the issue of the validity of the October order. The Alabama Rules of Civil Procedure provide that an application to the court for an order shall be by written motion, unless made during a hearing or trial. ARCP 7(b)(1).

Plaintiff had filed a written motion to strike the October order more than six months prior to the June hearing. Plaintiff’s petition for a rule nisi requested that the court order defendant to show cause why he should not be held in contempt of court for his disobedience to the July order. The petition made no reference to the October order. Under these circumstances defendant had adequate notice of plaintiff’s contention that the October order was void.

Moreover, the June order states that the court heard and considered arguments by both parties on this issue prior to rendering its decision. Because the validity of the October order was a crucial issue in determining whether defendant should be held in contempt of court, the court acted properly in determining that issue.

There being no reversible error, this case is affirmed.

AFFIRMED.

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

On Rehearing

In the brief filed in support of an application for rehearing, counsel for appellant suggests that we made an incorrect statement of fact in our original opinion. This alleged error concerns the statement indicating that the parties to this appeal were divorced in 1970 and later entered into an agreement concerning child support, insurance, and payment of certain debts. We add the following statements to our original opinion in substitution for this statement.

The parties to this appeal were divorced by a final decree dated April 27, 1970. Incorporated into and attached as apart of that decree was an agreement between the parties dated April 22, 1970. This agreement, drawn in contemplation of the pending divorce action, concerned child custody, child support, visitation rights, property rights pertaining to the parties’ home, household furnishings and motor vehicles, hospitalization insurance for the child, and attorney’s fees for the wife.

In the court’s order filed on July 13,1977, in the petition to modify filed by the wife on May 16, 1977, and in the original brief filed by appellant in this appeal, reference is made to another agreement between these parties. This latter agreement was apparently réached either at the time of the final decree of divorce or shortly thereafter, and apparently involved matters relating to insurance and to the payment of certain debts. However, this agreement is not set forth in the record of this cause and the exact terms of this agreement have not been made known to this court.

OPINION CORRECTED.

APPLICATION FOR REHEARING OVERRULED.

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


text:
    Ex parte Johnny T. CARNES.
    78-159.
    Supreme Court of Alabama.
    Jan. 19, 1979.
   PER CURIAM.

WRIT DENIED. 365 So.2d 981.

TORBERT, C. J., *md BLOODWORTH, FAULKNER, ALMON and EMBRY, JJ., concur.