author: PER CURIAM.

text:
    Charles A. BOSWELL, as Com’r of Revenue of the State of Alabama v. Anthony NAMAN et al.
    SC 1574.
    Supreme Court of Alabama.
    Aug. 27, 1976.

      William J. Baxley, Atty. Gen., Willard W. Livingston, Counsel, Dept, of Revenue and Asst. Atty. Gen., B. Frank Loeb, Asst. Counsel, Dept, of Revenue and Asst. Atty. Gen., for appellant.
    Mayer W. Perloff, Mobile, for appellees.
   PER CURIAM.

Ñaman is a retail grocer who sells food to nursing homes which house and feed Medicaid recipients pursuant to an agreement between the nursing homes and the State. The nursing homes are reimbursed for services rendered to Medicaid patients on a direct cost-basis by the Medical Services Administration, Department of Public Health.

The Commissioner of Revenue contends that the sale of food by Ñaman to the nursing homes is a sale at retail and is therefore subject to the State sales tax. Ñaman and Heritage Nursing Home brought a bill for declaratory judgment seeking to have declared void Sales Tax Regulation M18-011, as amended September 20,1974, under which the Commissioner claims the tax. That regulation provides in part:

“Hospitals and nursing homes purchasing tangible personal property for use in furnishing services to Medicaid recipients are not exempt from sales or use tax. Hospitals and nursing homes are primarily engaged in the business of rendering services. They are not liable for sales tax with respect to their gross receipts from meals, drugs, or other tangible personal property used in rendering hospital or nursing home service. Hospitals and nursing homes are deemed to be the purchasers for use or consumption of such tangible personal property, and the sellers of these items to hospitals and nursing homes are required to collect the tax on sales of such property to hospitals and nursing homes (see Rule H15-021).

The trial court held that this regulation was void as it relates to Heritage Nursing Home and Ñaman and others similarly situated.

The Commissioner appealed and contends that the regulation is a valid implementation of Title 51, § 786(3)(a), Code, because the sales of food are retail sales to the nursing home, which the Commissioner says is the ultimate purchaser. The taxpayers, on the other hand, argue that, because the ultimate consumer is the Medicaid recipient and the State pays the actual cost by reimbursing the nursing home, the tax is in reality a tax paid by the State, contrary to the provisions of Title 51, § 786(34), which exempts from sales tax “(i) The gross proceeds of sales of tangible personal property to the state of Alabama . . . ”

Obviously, if the sale of food to the nursing home is a sale to the State, it is a sale exempt from the sales tax. This depends upon whether, in making the purchase, the nursing home is acting as agent for the State.

The arrangement between the State and Heritage is embodied in a so-called “Provider Agreement.” Pursuant to that agreement, ^Heritage provides medically necessary skilled nursing home services to eligible beneficiaries for a specified period, and the State reimburses Heritage at the Medicaid rate, established on the basis of a per diem, in turn based on an audit report of operating expenses submitted to the State.

Is Heritage the State’s agent in purchasing food which then becomes part of the services rendered to Medicaid recipients for which Heritage is reimbursed by the State? Or, stating the issue in different terms, does the fact that the State ultimately pays the tax, by reimbursing Heritage on the basis of cost in providing nursing home services to Medicaid recipients, mean that the sale of food to Heritage is a sale of tangible personal property to the State and, therefore, exempt from sales tax under Title 51, § 786(34), Code? We hold that Heritage is not the State’s agent and that the sale of food to it is not a sale to the State. Therefore, the sale is taxable.

Although we have found no cases involving the exact issue involved here, and none has been cited to us, we do find cases involving analogous situations.

Not infrequently contractors supplying goods to a tax exempt entity under a cost-plus arrangement have contended that materials purchased to perform such contracts are not subject to the sales tax either because the contractor, in making such purchases, acts for the tax exempt entity or that the transaction is exempt from the tax because the exempt entity bears the ultimate cost under the contract. This argument was rejected by the Supreme Court of the United States in State of Alabama v. King & Boozer, 314 U.S. 1, 12, 62 S.Ct. 43, 47, 86 L.Ed. 3 (1941), where the court said:

“ . . . [The contractors] were not relieved of the liability to pay the tax either because the contractors in a loose and general sense were acting for the Government in purchasing the lumber or . because the economic burden of the tax imposed upon the purchaser would be shifted to the Government by reason of its contract to reimburse the contractors.”

In Hamm v. Boeing Co., 283 Ala. 310, 216 So.2d 288 (1968), this court held that sales were subject to the sales tax unless the incidence of the tax fell directly upon the tax exempt entity and the fact that the tax exempt entity indirectly bore the burden of the tax and did not invalidate a sales tax assessment.

Thereafter in Rust Engineering Co. v. State, 286 Ala. 589, 597, 243 So.2d 695, 702 (1971), the contractor attempted to invalidate a sales tax assessment, contending that it was acting as an agent for the State in purchasing goods in order to perform a contract with the State. Again, this court rejected that argument, saying:

“ ‘The evidence also undisputedly shows that the [contractor] paid the suppliers for the materials and supplies with its own funds, and with checks drawn on its own private bank account, and was never reimbursed for the cost of any of the specific materials or supplies by the State Docks Department, but was only paid in partial payments the lump sum consideration for the entire job. The [contractor] took possession of the materials, etc., upon same being delivered to them at the State Docks by the suppliers, and remained in possession thereof, until it used them in performing the contract and for its own benefit in earning the consideration paid for the job under the original contract.

Here, too, the facts are undisputed. Heritage pays for all of the food it buys by its own check. It takes possession of the food and uses it in preparing meals for the inhabitants of the nursing home. The State does not reimburse Heritage for the specific item but, instead, periodically reimburses Heritage on a cost-basis for the total nursing home services rendered to Medicaid recipients. We can perceive no material difference between these facts and those involved in Rust Engineering Co. v. State, supra. The undisputed facts will not permit a deduction that Heritage acts as an agent of the State in making the purchases of food from Ñaman, and, as shown by the cited cases, the fact that the State indirectly bears the burden of the tax does not invalidate the assessment thereof.

The judgment appealed from is, therefore, reversed and remanded.

REVERSED AND REMANDED.

HEFLIN, C. J., and MADDOX, JONES, SHORES and BEATTY, JJ., concur.


source: Caselaw Access Project

author: MADDOX, Justice.

license: Public Domain

text:
    Sam B. MAPLES v. Sam RAINE et al.
    SC 1669.
    Supreme Court of Alabama.
    Aug. 27, 1976.
    Rehearing Denied Sept. 24, 1976.
    S. P. Keith, Jr., Birmingham, for appellant.
    Clifford W. Hardy, Jr., Bessemer, for ap-pellees.
   MADDOX, Justice.

The controversy is over the ownership of one share of stock in a closely held family corporation. Plaintiff Sam Maples, at the time the corporation was formed in 1960, was the son-in-law of Sam Raine, Sr., the alleged donor of the share of stock.

There is sharp disagreement about the facts. Maples claims that one share was given to him and delivered. Raine disagrees. Thus, the trial judge had to determine the issue. He found:

(1) That Maples did not prove that he owned the share of stock.
(2) That there was never any delivery of the share.
(3) That there was never any donative intent by Sam Raine, Sr., to give the stock to Maples.
(4) That Maples never gave any consideration for the share.
(5) That Maples never exercised any control over the share.
(6) That Maples was guilty of laches.

We have carefully reviewed the competent evidence and considered the oral arguments of the parties. There is competent evidence to support the trial court’s factual findings and we cannot say that these findings and legal conclusions were palpably wrong. Vol. 2A, Alabama Digest, Appeal and Error, <s=> 1009(1). We affirm.

AFFIRMED.

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


author: EMBRY, Justice.

text:
    Linner VINES, etc., et al., v. PLANTATION MOTOR LODGE et al.
    SC 1807.
    Supreme Court of Alabama.
    Sept. 3, 1976.
    Grover S. McLeod, Birmingham, for appellants.
    No appearance for appellees.
   EMBRY, Justice.

When keys are left in an unlocked vehicle in violation of a city ordinance, the vehicle stolen, and is involved in an accident, should summary judgments be entered for defendant owner in negligence actions brought by injured plaintiffs?

Summary judgments were properly granted, therefore we affirm.

A truck owned by Tommy Wesson (appel-lee, d/b/a Plantation Motor Lodge) was parked in an alley behind his motor lodge and left unlocked with the keys in the ignition; the truck was stolen and a short time later, operated by the thief, collided with the motorcycle that Bobby Dean Vines and her husband, Gary Vines, were riding. Bobby Dean was injured and Gary killed. Actions were fifed, on account of the injuries and death, alleging that Wesson was negligent in violating a Birmingham city ordinance:

“No person having charge or control of a vehicle shall allow such vehicle to stand on any street or alley unattended without first effectively- setting the brakes thereon, stopping the motor of such vehicle, locking the ignition, removing the ignition key and taking such key with him; and when standing upon any grade without turning the front wheels of such vehicle to the curb or side of the street.” Birmingham General Code, § 34-92 (1964).

Wesson’s motions for summary judgments were granted, judgments entered accordingly; Bobby Dean Vines and the adminis-tratrix of Gary’s estate take this appeal.

The issue is whether negligence per se, by the ordinance’s violation, is the proximate cause of injuries and death resulting from the thief’s operation of the stolen vehicle. Appellants say it is; Wesson and the trial judge say it is not.

The facts in this case show that appellee, Wesson, parked his truck behind his motel-bar in a dark alley with the keys in it and the truck not locked. Shortly thereafter, a nineteen-year-old stole the truck and while driving it, apparently under the influence of drugs, he caused it to collide with the Vines’ motorcycle. The location from which the truck was stolen is an area containing many stores and bars; auto theft is a high incident crime of which an alarming number occur when keys are left in the vehicle; a substantial proportion of stolen vehicles are involved in accidents, frequently after high-speed chases through cities, and often result in damage to property and person of innocent victims.

Whether a vehicle owner who fails to remove keys from the ignition switch of his parked vehicle can be held liable for personal injury or property damage, resulting from the negligent operation of the vehicle by a thief, is a question which the courts answer in different ways. In Alabama, the issue of the owner’s liability is complicated by the existence of a statute and, in this case an ordinance, which expressly proscribes the failure to remove the ignition key from a parked vehicle. Tit. 36, § 27, Code of Ala. The majority of jurisdictions do not hold the owner liable. The question is one of first impression in Alabama, as far as we can determine. We view the matter, as do a majority of jurisdictions, to be de-; cided under traditional concepts of proximate cause.

Negligence alone does not afford a cause of action. Liability will be imposed only when negligence is the proximate cause of injury; injury must be a natural and probable consequence of the negligent act or omission which an ordinarily prudent person ought reasonably to foresee would result in injury. If, between the alleged negligent act or omission and the injury, there occurs an independent, intervening, unforeseeable event, the causal connection between the alleged negligence and the injury is broken. Mobile City Lines, Inc. v. Proctor, 272 Ala. 217, 130 So.2d 388 (1961); Mahone v. Birmingham Electric Co., 261 Ala. 132, 73 So.2d 378 (1954).

The key here is foreseeability. This court has held many times that a person, who by some act or omission sets in motion a series of events, is not responsible for consequences of intervention of another agency, unless at the time of his original act or omission, the act of the intervening agency could reasonably be foreseen. If so, the causal chain is not broken. If the injury results from an independent intervening, efficient cause, not reasonably foreseeable, the original negligent act or omission is not the proximate cause of injury. Liberty National Life Insurance Co. v. Weldon, 267 Ala. 171, 100 So.2d 696 (1958); Watt v. Combs, 244 Ala. 31, 12 So.2d 189 (1943); Hammett v. Birmingham Railway, Light & Power Co., 202 Ala. 520, 81 So. 22 (1919).

It is generally accepted that violation of statutes or ordinances may be negligence. However, to recover, a causal connection must be established between the violation and injury. In this case, the consequences of the theft were too remote to be reasonably foreseeable by the defendant when he left the truck unattended with the keys in the ignition. We conclude that the negligent or wanton act of the thief resulting in the injury and in the death, could not be reasonably foreseen by the defendant; it is sufficient to break the chain of causation. The majority of our sister states are in accord. Surratt v. Petrol, Inc. (Ind.App.), 312 N.E.2d 487, rehearing denied (Ind.App.), 316 N.E.2d 453 (1974) (summary judgment in favor of defendant upheld); Stone v. Bethea, 251 S.C. 157, 161 S.E.2d 171 (1968); Berluchaux v. Employers Mutual of Wausau (La.App.), 194 So.2d 463, writ refused, 250 La. 533, 197 So.2d 79 (1967); Call v. Huffman (La.App.), 163 So.2d 397, writ refused, 246 La. 376, 164 So.2d 361 (1964); Ross v. Nutt, 177 Ohio St. 113, 203 N.E. 118 (1964); Permenter v. Milner Chevrolet Co., 229 Miss. 385, 91 So.2d 243 (1956); Anderson v. Theisen, 231 Minn. 369, 43 N.W.2d 272 (1950); Castay v. Katz & Besthoff (La.App.), 148 So. 76 (1933).

Plaintiffs contend that this court has held a criminal act not to be a sufficient intervening agency to break the chain of causation and cites Liberty National Life Insurance Co. v. Weldon, supra, in support. This case is distinguishable on the facts. Also the rule adopted in Weldon is inapplicable for other reasons given in that opinion.

In this case, we hold the negligent driving of the thief was the proximate cause of the injuries; defendant’s negligence, if any, was too remote to be a proximate cause of those injuries. Therefore, violation of the ordinance, under the facts in this case, cannot be considered a proximate cause of the accident as a matter of law.

The judgments are

AFFIRMED.

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


author: ALMON, Justice.

text:
    Winifred Laatsch BISHOP et al. v. Faroy SALES et al.
    Div. CER-5.
    Supreme Court of Alabama.
    Sept. 10, 1976.
    Smith, Huckaby & Graves, Huntsville, for Winifred Laatsch Bishop, and others.

      Neely, Freeman & Hawkins, and A. Timothy Jon<?s and Alan F. Herman, Atlanta, Ga., for Van Horn-Hayward Co.
    Troutman, Sanders, Loekerman & Ash-more and Stanley A. Coburn, Atlanta, Ga., for Faroy Sales.
   ALMON, Justice.

This is a certified question from the United States District Court for the Northern District of Georgia, Atlanta Division. The sole issue is whether § 2-318 of Tit. 7A, Code of Alabama 1940, Recompiled 1958, eliminates the “vertical privity” requirement in personal injury actions based on breach of warranty. We answer this question in the affirmative.

The question arose out of a suit brought by Winifred Laatsch Bishop and Marvin D. Bishop against Faroy Sales, a Georgia corporation, and Van Horn-Hayward Company, a Texas corporation, for personal injuries received by Mrs. Bishop when a candle-holder allegedly ignited and burned her. Van Horn is the manufacturer of the can-dleholder; Faroy is the distributor.

The Bishops are principal shareholders, officers and employees of Bishop’s Flower and Garden Center, Inc., a retail florist and gift shop in Huntsville, Alabama. Mrs. Bishop, who was buyer for the business, was introduced to the “Number 23 Multi-Flame Clear 3” candleholder when she visited the Atlanta, Georgia, showroom of Faroy on a buying trip for Bishop’s Flowers in 1968 or 1969. At that time she placed an order for several candleholders through Fa-roy, Van Horn’s exclusive sales representative. Van Horn shipped and billed the can-dleholders directly to Bishop’s Flowers.

Approximately three or four years after Mrs. Bishop first ordered the candleholders for Bishop’s Flowers, she purchased a pair of candleholders for personal use in her home. From the time Mrs. Bishop brought them into her home until the time of the accident (approximately six months to one year), the candleholders were used continuously by the Bishop family.

On April 14,1973, the Bishops were burning a candle in one of the candleholders without difficulty when it allegedly ignited and exploded, injuring Mrs. Bishop. The Bishops filed suit alleging that the fire occurred as a result of a defect in the candle-holder. They are attempting to hold Faroy Sales and Van Horn responsible on two theories: negligence and breach of implied warranty.

On March 7, 1975, Faroy filed a Motion for Total Summary Judgment; on April 10, 1975, Van Horn filed a Motion for Partial Summary Judgment. On August 28, 1975, the United States Federal District Court for the Northern District of Georgia, Atlanta Division, finding that the law of Alabama requires privity in a suit for personal injuries in breach of warranty actions, granted partial summary judgment for Fa-roy and Van Horn by dismissing the breach of warranty action. Subsequently, appellants filed a motion to reconsider, in response to which the court granted the motion and certified the above question to this court.

Historically, vertical privity has been required for a suit in contract. See Cotton v. John Deere Plow Co., 246 Ala. 36, 39, 18 So.2d 727 (1944); Attalla Oil & Fertilizer Co. v. Goddard, 207 Ala. 287, 289, 92 So. 794 (1922); Birmingham Chero-Cola Bottling Co. v. Clark, 205 Ala. 678, 680, 89 So. 64, 17 A.L.R. 667 (1921). The last time this court addressed the question was in Harnischfeger Corp. v. Harris, 280 Ala. 93, 190 So.2d 286 (1966), where an employee was suing the manufacturer and the retailer who had sold a motor truck crane to plaintiff’s employer:

“ . . . Although this is a ‘judge-made’ rule [the requirement of privity of contract] which could be changed by another ‘judge-made’ rule, we entertain the view that, because of its long existence as a part of the jurisprudence of this State, it would be more appropriate for its demise to be effectuated by legislative action, if it is to be overturned.” Id. at 97, 190 So.2d 286, 290.

In 1965, prior to Harnischfeger, the Alabama Legislature enacted the Alabama Commercial Code, Tit. 7A, Code of Alabama 1940, Recompiled 1958, but did not make it effective until midnight, December 31,1966, after Harnischfeger. Title 7A, § 2-318 (Act No. 549, General Acts of Alabama, Regular Session, Vol. 1 (1965) p. 836, approved August 23, 1965) reads as follows:

“§ 2-318. Third party beneficiaries of warranties express or implied. — A sellers’ warranty, whether express or implied, extends to any natural person if it is reasonable to expect that such person may use, consume or be affected by the goods and who is injured in person by breach of the warranty. A seller may not exclude or limit the operation of this section.”

§ 2-318, as enacted differed from the proposed § 2-318 of the 1962 version of the Uniform Commercial Code. The proposed section read as follows:

“A seller’s warranty whether express or implied extends to any natural person who is in the family or household of his buyer or who is a guest in his home if it is reasonable to expect that such person may use, consume or be affected by the goods and who is injured in person by breach of the warranty. A seller may not exclude or limit the operation of this section.”

The proposed § 2-318 loosened the privity requirements. Its intent was to place the buyer’s family or household, or a guest in the buyer’s home in the same shoes as the buyer with respect to injuries in person. Official Comment No. 3 to the section made it clear that “[bjeyond this, the section is neutral and is not intended to enlarge or restrict the developing case law on whether the seller’s warranties, given to his buyer who resells, extend to other persons in the distributive chain.” The Official Comments to the 1962 version of the U.C.C. were placed in the Alabama Commercial Code immediately following § 2-318; however, comments numbered 2 and 3 are inappropriate to the section as enacted in view of Alabama’s modified version.

§ 2-318, as enacted, excluded the words, “who is in the family or household of his buyer or who is a guest in his home.” By removing these words, the legislature intended to remove the privity requirement horizontally from more situations than did the uniform version. However, the question here is whether the legislature by enacting a modified version of § 2-318 also eliminated the requirements of vertical privity.

Tit. 7A, § 2-103(l)(d) defines “seller” as “a person who sells or contracts to sell goods.” A “buyer” is “a person who buys or contracts to buy goods.” Tit. 7A, § 2-103(l)(a). Sellers and buyers are not limited by definition to retailers and consumers. By its terms, a seller is anyone who sells, including a manufacturer or distributor. Thus, a manufacturer’s or distributor’s warranty extends to “any natural person if it is reasonable to expect that such person may use, consume, or be affected by the goods and who is injured in person by the breach of the warranty.” A manufacturer or distributor intends the products he sells to eventually arrive in the hands of consumers. Thus, by the terms of the statute, a manufacturer’s or distributor’s warranty would extend to the final buyer-consumer of the product (as well as to other possible parties horizontally) if he is injured in person by the breach of the warranty.

“The Alabama legislature refused to equivocate on the privity question in the manner of the 1962 edition of the Code. Before passing the Code it amended 2-318. Aside from immaterial matters of punctuation, its only change was to drop the limiting language, ‘who is in the family or household of his buyer or who is a guest in his home.’ The Alabama warranty thus runs to anyone sustaining personal injury ‘if it is reasonable to expect that such person may use, consume or be affected by the goods.’ In making this amendment, the legislature chose a privity provision similar to that contained in the pre-1962 drafts of the Code. Indeed, the language had its origins in a 1944 version of the Uniform Revised Sales Act. The Revised Sales Act subsequently became the basis for the sales articles of the Commercial Code, and the concept of extending warranty to anyone who could be reasonably expected to use, consume, or be affected by the goods was retained in the 1950 draft. The proposed comments to that version throw light on the intention of the drafters. They stated that the section was ‘intended to broaden the right and the remedy of the consumer in warranty, to free them from any technical rules as to “privity” and to make them, insofar as feasible, directly enforceable against the party ultimately responsible for any injury.’ The comments further indicate that groups such as employees of the buyer are covered and that the consumer has the choice of proceeding directly against the party ultimately responsible for the injury.
“Comparing these early drafts and their comments with the 1962 edition and its comments, it is obvious that the scope of the earlier version is of a wholly different order. The original intent of the Code drafters was to abolish the privity concept entirely in both its horizontal and vertical aspects. . . . ” McDonnell, The New Privity Puzzle: Products Liability under Alabama’s Uniform Commercial Code, 22 Ala.L.Rev. 455, 481-482 (1970).

See also Sales — Proposed Uniform Commercial Code — Consumer Protection and Privity of Contract, 26 N.Y.U.L.Rev. 352 (1951).

The conclusion that § 2-318, as enacted, eliminates the vertical privity requirement has also been reached by courts of other states where their legislatures decided against enactment of the uniform version of § 2-318. Vermont’s and Kansas’ §§ 2-318 are substantially identical to ours. Vermont St.Anno., Tit. 9A, § 2-318, enacted 1966; K.S.A., Chapter 84, § 84-2-318. While the Vermont and Kansas Supreme Courts apparently have not yet addressed the question, federal courts in Vermont have used the section as support for allowing the theory of strict liability to be applied directly against a manufacturer. Wasik v. Borg, 423 F.2d 44 (2d Cir., 1970). The statutes of Wyoming (Wyo.St.Anno., Tit. 34, § 34-2-318,1975 Cum.Supp. enacted 1961), Colorado (Col.Rev.St.1973, Tit. 4, § 4-2-318, enacted 1963), South Carolina (Code of S.C., 1962, Tit. 10.2, § 10.2-318, enacted 1966), South Dakota (S.D. Compiled Laws 1967 Anno., Tit. 57, § 57-4-41, enacted 1966); Delaware (Del.Code Anno.Rev.1974, Tit. 6, § 2-318, enacted 1967); North Dakota (N.D.Cen.Code, Tit. 41, § 41-02-35, enacted 1967); and Minnesota (Minn.St.1974, Chapt. 336, § 336.2-318, enacted 1969) are also similar to the Alabama version, though they do not specifically require an injury “in person;” the South Carolina section specifically applies to damage to the “person or property” while the remaining statutes merely apply to one who “is injured.” With the exceptions of South Dakota, North Dakota, and Minnesota, which have apparently not yet ruled on the question, the respective state courts or federal courts interpreting state law have concluded that each of the respective sections has eliminated the vertical privity requirement. Colorado Serum Co. v. Arp, 504 P.2d 801 (Wyo., 1972); Larson v. Clark Equipment Co., 33 Colo.App. 277, 518 P.2d 308 (1974) (by inference); McHugh v. Carlton, 369 P.Supp. 1271 (D.S.C., 1974); Springfield v. Williams Plumbing Supply Co., 249 S.C. 130, 153 S.E.2d 184 (1967) (by inference); Nacci v. Volkswagen of America, Inc., 325 A.2d 617, Del.Super. (1974).

Other states have eliminated the requirement of vertical privity by judicial extension of Alternative A of the present version of § 2-318 of the U.C.C. (see footnote 1; same as the 1962 version of § 2-318). Picker X-Ray Corp. v. General Motors Corp., 185 A.2d 919 (D.C.Mun. of App., 1962); Kassab v. Central Soya, 432 Pa. 217, 246 A.2d 848 (1968); Manheim v. Ford Motor Co., 201 So.2d 440 (Fla., 1967); Autry v. Chemtrust Industries Corp., 362 F.Supp. 1085 (D.C.Del., 1973), applying Florida law; Chairaluce v. Stanley Warner Management Corp., 236 F.Supp. 385 (D.C.Conn., 1964), applying Connecticut law.

Still others have reached the same result without the aid of statute. Conolly v. Hagi, 24 Conn.Sup. 198, 188 A.2d 884 (1963); Dealers Transport Co. v. Battery Distribution Co., 402 S.W.2d 441 (Ky.App., 1966).

In addition to altering § 2-318, the Alabama Legislature altered four other sections of the proposed U.C.C. — §§ 2-316, 2-714(2), 2-719(4), and 2-725(2). The manner in which these sections were altered lends further support to the conclusion that the legislature intended to expand the right of the consumer in personal injury cases.

Moreover, if § 2-318 had not eliminated the vertical privity requirement, a distributor and/or manufacturer would in appropriate cases still find himself a party to the suit, via an impleader third party action as allowed by Rule 14(a) of the Alabama Rules of Civil Procedure (or Rule 14(a) of the Federal Rules of Civil Procedure when the suit is in federal court). See Wasik v. Borg, supra.

We conclude that § 2-318 of Tit. 7A, Code of Alabama 1940, Recompiled 1958, eliminates the vertical privity requirement in a suit for breach of warranty if it is reasonable to expect that such person may use, consume or be affected by the goods and is injured in person by breach of the warranty.

CERTIFIED QUESTION ANSWERED.

HEFLIN, C. J., and BLOODWORTH, MADDOX, FAULKNER, JONES, SHORES, EMBRY and BEATTY, JJ., concur.

      . In 1966 the Permanent Editorial Board for the Uniform Commercial Code amended the official text as follows:

        “Alternative A

      “A seller’s warranty whether express or implied extends to any natural person who is in the family or household of his buyer or who is a guest in his home if it is reasonable to expect that such person may use, consume or be affected by the goods and who is injured in person by breach of the warranty. A seller may not exclude or limit the operation of this section.

        “Alternative B

      “A seller’s warranty whether express or implied extends to any natural person who may reasonably be expected to use, consume or be affected by the goods and who is injured in person by breach of the warranty. A seller may not exclude or limit the operation of this section.

        “Alternative C

      “A seller’s warranty whether express or implied extends to any person who may reasonably be expected to use, consume or be affected by the goods and who is injured by breach of the warranty. A seller may not exclude or limit the operation of this section with respect to injury to the person of an individual to whom the warranty extends.
      “OFFICIAL COMMENT

        “Prior Uniform Statutory Provision: None. “Purposes:

      “1. The last sentence of this section does not mean that a seller is precluded from excluding or disclaiming a warranty which might otherwise arise in connection with the sale provided such exclusion or modification is permitted by Section 2-316. Nor does that sentence preclude the seller from limiting the remedies of his own buyer and of any beneficiaries, in any manner provided in Sections 2-718 or 2-719. To the extent that the contract of sale contains provisions under which warranties are excluded or modified, or remedies for breach are limited, such provisions are equally operative against beneficiaries of warranties under this section. What this last sentence forbids is exclusion of liability by the seller to the persons to whom the warranties which he has made to his buyer would extend under this section.
      “2. The purpose of this section is to give certain beneficiaries the benefit of the same warranty which the buyer received in the contract of sale, thereby freeing any such beneficiaries from any technical rules as to ‘privity.’ It seeks to accomplish this purpose without any derogation of any right or remedy resting on negligence. It rests primarily upon the merchant-seller’s warranty under this Article that the goods sold are merchantable and fit for the ordinary purposes for which such goods are used rather than the warranty of fitness for a particular purpose. Implicit in the section is that any beneficiary of a warranty may bring a direct action for breach of warranty against the seller whose warranty extends to him.
      “3. The first alternative expressly includes as beneficiaries within its provisions the family, household, and guests of the purchaser. Beyond this, the section in this form is neutral and is not intended to enlarge or restrict the developing case law on whether the seller’s warranties, given to his buyer who resells, extend to other persons in the distributive chain. The second alternative is designed for states where the case law has already developed further and for those that desire to expand the class of beneficiaries. The third alternative goes further, following the trend of modern decisions as indicated by Restatements of Torts 2d § 402A (Tentative Draft No. 10, 1965) in extending the rule beyond injuries to the person.

        “Cross References:

      “Point 1: Sections 2-316, 2-718 and 2-719.
      “Point 2: Section 2-314.

        “Definitional Cross References:

      “ ‘Buyer’. Section 2-103.
      “ ‘Goods’. Section 2-105.
      “ ‘Seller’. Section 2-103.
      “PERMANENT EDITORIAL BOARD NOTE ON 1966 AMENDMENT

        “Source: Colorado, Delaware, South Carolina, South Dakota, Vermont, Wyoming. Compare Proposed Final Draft, Spring 1950, and non-uniform versions enacted in Alabama, Arkansas, Texas, Virginia. The section was omitted in California and Utah. “Reason for Change: This section as drawn in 1950 was substantially in the form of the new Alternative B. The form shown as Alternative A was substituted in 1951, limiting beneficiaries to the family, household and guests of the buyer. Beyond this, according to Comment 3, the section was neutral and was not intended to enlarge or restrict ‘the developing case law.’ The section was criticized in California as ‘a step backward,’ and was omitted from the Code as enacted in California and in Utah. Non-uniform versions were enacted in ten states, and proposals for amendment have been made elsewhere. There appears to be no national consensus as to the scope of warranty protection which is proper, but the promulgation of alternatives may prevent further proliferation of separate variations in state after state. Alternative B is therefore promulgated in substantially the 1950 form, and Alternative C is drawn to reflect the trend of more recent decisions as indicated by Restatements of Torts 2d § 402A (Tentative Draft No. 10, 1965), extending the rule beyond personal injuries.”
      Alternative B was apparently based at least in part on the Alabama version of § 2-318.

      . Appellants note in brief that the Alabama version of § 2-318 uses the term “sellers’ ” rather than “seller’s.” From this they argue that the “legislature envisioned all of the sellers of a product as opposed to the consumer’s (buyer) immediate seller.” However, we conclude that “sellers’ ” is merely a clerical error as the rest of the sentence is written in the singular — “A,” “warranty,” “extends” — and, hence, give no weight to the use of the plural form of the word.

      . Some courts have construed their version of § 2-318 to be limited in its operation to personal injury actions only. That matter is not now before us and we express no opinion.

      . Virginia, Arkansas, Maine and Rhode Island have specifically eliminated the vertical privity requirement:
      “Lack of privity between plaintiff and defendant shall be no defense in any action brought against the manufacturer or seller of goods to recover damages for breach of warranty, express or implied, or for negligence, although the plaintiff did not purchase the goods from the defendant, if the plaintiff was a person whom the manufacturer or seller might reasonably have expected to use, consume, or be affected by the goods ...” Code of Virginia, Tit. 8.2, § 8.2-318; Ark.St. 1947, Tit. 85, § 85-2-318.”
      Maine’s statute (Me.R.S.1964, Tit. 11, § 2-318) differs slightly. Rhode Island’s statute reads as follows:
      “A seller’s or a manufacturer’s or a packer’s warranty whether express or implied including but not limited to a warranty of merchantability provided for in § 6A-2-314, extends to any person who may reasonably be expected to use, consume or be affected by the goods and who is injured by breach of the warranty. A seller or manufacturer or a packer may not exclude or limit the operation of this section.” R.I.G.L.1956, Tit. 6A, § 6A-2-318.


author: WRIGHT, Presiding Judge.

text:
    William A. WELCH v. G. F. C. CREDIT CORPORATION.
    Civ. 875.
    Court of Civil Appeals of Alabama.
    Aug. 11, 1976.

      Stone & Partin, Bay Minette, for appellant.
    Sam W. Irby, Fairhope, Thomas J. Stein, Mobile, for appellee.
   WRIGHT, Presiding Judge.

This is an appeal from denial of a Rule 60(b), ARCP, motion to set aside a default judgment. We reverse.

Denial of a rule 60(b) motion to set aside a default judgment is a final order and is appealable. Bros, Inc. v. W. E. Grace Mfg. Co., C.A. 5th, 320 F.2d 594, 601. See 11 Wright & Miller, Federal Practice & Procedure, Sec. 2871 at 258.

Plaintiff filed suit upon a note. The complaint stated that a copy of the note was attached as an exhibit and made a part thereof. The exhibit attached was not a note but a security agreement which listed no secured property. The complaint averred that by the terms of the note rights of exemption were waived and defendant agreed to pay a reasonable attorney fee.

Defendant filed answer and a jury demand. Subsequently, attorney for defendant withdrew with leave of court and with notice of his withdrawal to defendant. More than 13 months after filing suit plaintiff moved for default judgment. Affidavit was made by plaintiff under Rule 55(a) that defendant had failed to appear or otherwise defend. Judgment was demanded from the clerk in an amount certain, to-wit: $2,553.10.

More than a month after the request for default, a judgment was entered, not by the clerk, but by the court. The judgment entry stated that defendant had failed to appear, plead or otherwise defend and judgment was rendered against him for $2,553.10 and costs on a waive promissory note pursuant to Rule 55(b)(2) ARCP. There was no entry of taking of testimony upon the complaint.

Some eight months after judgment, defendant, by different counsel, filed motion to vacate the judgment under Rule 60(b)(4), ARCP. There were three grounds set out. These were as follows:

(1) The judgment is void for failure of plaintiff to comply with the provisions of Title 5, Sec. 322, Code of Alabama (1940).
(2) The judgment is void because the complaint was upon a promissory note attached as ’’Exhibit A.” “Exhibit A” is not a promissory note. Therefore there was no evidence before the court to sustain a judgment.
(3) The judgment is void because it is a default under Rule 55(a), ARCP, but defendant had filed an answer, was not given three days’ notice of taking judgment and the judgment was not entered on a day the case was set for trial, all contrary to Rule 55(b)(2), ARCP.

The motion to vacate was denied after hearing. Defendant appealed.

The issues presented by this appeal raise questions as to the meaning and effect of provisions of Title 5, Sec. 322 (Mini-Code) and of Rule 55, ARCP, which have not previously been considered by an appellate court of this state. Title 5, Sec. 322 is as follows:

“No creditor under this chapter shall bring suit on any debt for collection, and no judgment by default or otherwise shall be rendered until the creditor shall file an affidavit stating that (a) there has not been a violation of provisions of this chapter, and (b) that the debtor (if a resident of this state) on information and belief of creditor is a resident of the county in which the suit is filed. If such violation exists or if the debtor is not a resident of the county in which suit is filed, the suit shall be abated.”

As this court indicated in Jefferson v. Mitchell Select Furniture Co., 56 Ala.App. 259, 321 So.2d 216, the compilation of statutes known as the “Mini-Code” cannot be referred to as model legislation. However, Sec. 322 contains definite prohibitions against both creditor and court. The creditor is prohibited from bringing suit without filing the required affidavit. If he should disregard the prohibition, the court is prohibited from entering judgment thereon until such affidavit is filed. In effect, the penalty upon the creditor for suing without the affidavit is that the court may not enter judgment until it is filed. We consider the prohibition upon the court to be a limitation of its authority to exercise jurisdiction if not waived affirmatively. However, a judgment rendered without such affidavit, but with jurisdiction of the parties is not void but voidable. In this case, the filing of an answer may be considered as a waiver.

The prohibitive provisions of Sec. 322 may be compared with those of 50 U.S.C.A.App. Sec. 520 (Soldiers’ & Sailors’ Civil Relief Act). The failure to file required affidavit under that statute has been held not to make a judgment void but voidable. People v. Vogel, 46 Cal.2d 798, 299 P.2d 850.

The record in this case shows several actions violating Rule 55, ARCP. First: the motion and affidavit for default were made under 55(a) and state the defendant failed to appear, answer or otherwise defend. Such is contrary to the record. Defendant did appear and filed answer and jury demand. Plaintiff was not entitled to default under 55(a). Second: the application for default was to the clerk. The clerk did enter default. No such authority existed in the clerk after defensive pleading was filed. Rule 55(a). Third: Judgment by default was entered by the court and recited that motion was made for default judgment under Rule 55(b)(2). The record does not contain a motion for default judgment to the court but only to the clerk under 55(a). Fourth: The judgment recites that default had previously been entered for failure to plead or otherwise defend. Such finding is contrary to the record. As previously noted, answer and jury demand had been filed. Such was not withdrawn by the withdrawal of counsel. Fifth: Judgment was not entered on a day set for trial and there was not notice of application for default as required by Rule 55(b)(2). That portion of the rule is as follows:

“If the party against whom judgment by default is sought has appeared in the action, he (or, if appearing by representative, his representative) shall be served with written notice of the application for judgment at least 3 days prior to the hearing on such application, provided, however, that judgment by default may be entered by the court on the day the case is set for trial without such 3 days notice.”

The federal courts which have considered the provisions of Rule 55(b)(2) as to notice of application for default seem to consider absence of notice ground for relief upon appeal or upon a Rule 60(b) motion. However, there are differences of opinion as to whether a judgment entered without notice is void. (Not void) Winfield Associates, Inc. v. Stonecipher, C.A.10th, 429 F.2d 1087. (Void) Bass v. Hoagland, C.A.5th, 172 F.2d 205, cert. den. 338 U.S. 816, 70 S.Ct. 57, 94 L.Ed. 494; Ken-Mar Airpark, Inc. v. Toth Aircraft & Accessories Co., W.D.Mo., 12 F.R.D. 399. A sixth matter disclosed by the record relates to the defendant’s jury demand. According to the record, after counsel for defendant withdrew the case was transferred to the non-jury docket by order of the court. At the time of the order, the defendant was not in default in any fashion. The reason for such transferal is not disclosed. Rule 38(d), ARCP provides as follows:

“A demand for trial by jury made as herein provided may not be withdrawn without the consent of the parties except where an opposing party is in default under Rule 55(a). The failure to appear, in person or by counsel, at the trial is a waiver of trial by jury.”

As the defendant was not in default by failure to appear under 55(a), was not given notice that default was to be sought and the case was not set for a trial at which he failed to appear, we find no waiver of a jury trial under Rule 38 or Rule 55.

A seventh matter missing from the record is notice of judgment from the clerk to defendant under Rule 77(d). Such notice is not substantive, but as made clear by the rule and Committee Comments, it is for the convenience of a party who would not otherwise know of the entry of judgment. Failure to send such notice does permit extension of time for taking appeal for a period of up to 30 days.

The primary principle of the Alabama Rules of Civil Procedure is to afford to the parties to every action a prompt and fair trial upon the merits. Within that principle it is inherent that judgments by default are not favored. Hutton v. Fisher, C.A.3rd, 359 F.2d 913. Any doubts as to propriety in any case should be resolved in favor of the defaulting party. Davis v. Parkhill-Goodloe Co., C.A.5th, 302 F.2d 489. Rule 55 epitomizes the proposition that the duty is upon the court to determine that default is due particularly after filing of defensive pleadings. It is clear that the entry of judgment by the court under Rule 55(b)(2) is discretionary with the court and that a moving party is not entitled to such judgment as a matter of right. Davis v. Parkhill-Goodloe Co., supra. Even after entry of default, further opportunity for exercise of discretion may come to the court under Rules 55(c) and 60(b).

As we have previously shown by the listing of the instances of failure to comply with Rule 55, this court considers that the trial court never reached the point of using its discretion. It totally disregarded Rule 55 or permitted the protective procedures of Rule 55 to be disregarded. Whether failure to comply with any one of the requirements of Rule 55 in this case renders the judgment void is not necessary for this court to decide. We conclude that there were so many irregularities in the rendering of judgment in this case, i. e., (1) failure to recognize from the record that answer and jury demand were filed; (2) transfer to the non-jury docket after jury demand; (3) entry of judgment for failure to appear and defend when defense was in the record; (4) failure to give notice of application for default; (5) entry of judgment upon a day not set for trial; (6) entry of judgment without taking testimony in suit upon a note and for attorney fees when there was a jury demand not waived; (7) entry of judgment upon a note and for attorney fees when such note was not before the court; (8) entry of judgment when complaint alleges a waive note as an exhibit, and such exhibit is not a waive note nor even a note; that Rule 55 and Rule 38(d) were rendered useless, the court was without authority, due process was denied and the judgment is void. Winfield Associates, Inc. v. Stonecipher, supra; Bass v. Hoagland, supra.

We have tediously pointed out the many instances of error under the facts of this case. However, the crux of our decision is simply that after appearing and pleading, there could be no default entered under Rule 55(a). Judgment could be entered by the court thereafter only upon the day the case was set for trial. In this case judgment was not authorized by Rule 55 and is void.

REVERSED AND REMANDED.

BRADLEY and HOLMES, JJ., concur.


text:
    STATE of Alabama, DEPARTMENT OF REVENUE OF JEFFERSON COUNTY, Alabama v. ALABAMA LEASING COMPANY, a corporation.
    Civ. 569.
    Court of Civil Appeals of Alabama.
    Sept. 10, 1975.
    Rehearing Denied Oct. 8, 1975.
    William H. Burton, Asst. Atty. Gen. of Ala. and Asst. Counsel, State Dept, of Revenue, John S. Foster, Birmingham, for appellant.
    William M. Acker, Jr., and Carleton P. Ketcham, Jr., Birmingham, for appellee.
    Billy L. Church, Pell City, for St. Clair County, amicus curiae.
   WRIGHT, Presiding Judge.

This case arose from an escape tax assessment levied by the Director of Revenue of Jefferson County against a 1964 International truck. The owner of the truck, Alabama Leasing Company, appealed to the Circuit Court of Jefferson County. From a judgment holding that the truck was not subject to assessment for taxes in Jefferson County, the State appeals. We reverse and remand.

The case was submitted to the circuit court on stipulation. The company was incorporated and has its principal place of business in Jefferson County. The operations of the truck were directed from the company’s office in Jefferson County. The drivers of the truck were directed and paid out of the company’s Birmingham office. The truck was regularly leased to Colonial Refrigerated Transportation, Inc., and sometimes loaded and unloaded at Colonial’s terminal in Birmingham. The truck received and delivered substantially more freight in Jefferson County than in St. Clair County, thereby generating substantially more revenue in Jefferson County. The truck was in Jefferson County substantially more times and for longer periods of time than St. Clair County.

The company maintained no office or communications facility in St. Clair County from which the truck’s operations could be directed. There was no loading dock in St. Clair County at which the truck regularly called. However, the truck was sometimes used in St. Clair County as this was the route available for traffic from Jefferson County to points east.

During the years in question the company assessed the truck for taxes and purchased tags for it in St. Clair County. The company has not assessed or paid taxes on the truck in Jefferson County. The escape assessment issued by the Director of Revenue of Jefferson County concerns only city and county taxes, as state ad valorem taxes are collected at a uniform rate throughout the state.

The circuit court, relying on Brown v. Dixie Highway Express, Inc., 270 Ala. 46, 116 So.2d 369, held that under Title 51, Sections 704 and 877 the company was entitled to assess the truck in St. Clair County because it was used and operated to a substantial extent in St. Clair County. The truck being properly assessed in St. Clair County, Jefferson County could not issue an escape assessment on the vehicle. Title 51, Section 711, Code of Alabama (1940).

Section 877 applies only to Jefferson County. At the time of the Brown decision Sections 704(a) and 877(a) were substantially identical. Brown turned on the meaning of the phrase “county in which said motor vehicle is used or operated” in the first sentence of Sections 704(a) and 877(a).

In 1961, the legislature amended Section 704 by Act 660. The first sentence was left intact. However, the second sentence, requiring the vehicle operator to assess the vehicle, was amended so that Section 704(a) reads as follows:

“To prevent motor vehicles within the meaning of this article from escaping taxation and to provide for a more efficient assessment and collection of taxes due on same, no license shall be issued to operate a motor vehicle on the public highways of this state, nor shall any transfer be made by the probate judge as provided under this article, until the ad valorem tax on such vehicle shall have been paid in the county for the preceding tax year, as evidenced by a receipt of the tax collector where the owner of said vehicle resides, if the vehicle is owned by an individual, or if the vehicle is owned by a firm, corporation or association, then as evidenced by the receipt of the tax collector in the county in which said motor vehicle is used or operated. Every person who desires to operate a motor vehicle on the public highways of Alabama shall first return such motor vehicle for ad valorem taxation to the tax assessor of the county in which he resides, and every firm or corporation that so desires to operate a motor vehicle shall first return such motor vehicle for ad valorem taxation to the tax assessor of the county from which such motor vehicle is used or operated, and the tax assessor of such county shall deliver to the person who makes the return as herein required, a certificate of assessment on a form prescribed by the department of revenue, and such certificate shall be the warrant of the tax collector to collect the tax as shown thereon . . . ” (Emphasis supplied.)

The State contends that the underlined portion requires that a vehicle owned by a corporation be assessed in the county from which it is operated, that being Jefferson in this case.

Act 660 did not amend Section 877 which governs ad valorem taxation of motor vehicles in Jefferson County. As revenue statutes, both Sections 704 and 877 must be construed together in pari materia. Union Central Life Ins. Co. v. State, 226 Ala. 420, 147 So. 187. The legislative intent, expressed in Section 704, to provide for a more efficient assessment and collection of ad valorem taxes on motor vehicles would best be served by construing Act 660 as applicable to Section 877(a), as this provides for a uniform statewide system for assessing and collecting taxes. A construction that Act 660 does not apply to Section 877 would create a different system for assessing or collecting taxes in Jefferson County and would therefore be contrary to Section 104(15) of the Alabama Constitution. We therefore hold that the provisions of Act 660 apply to Title 51, Section 877.

Brown construed Section 704 according to the facts therein presented to mean that “over the road” trucks belonging to a foreign corporation based in Mississippi could lawfully purchase Alabama licenses and pay Alabama ad valorem taxes in a county where its trucks were substantially used and operated. Such construction clearly was based upon a factual comparison of mileage and purchase of fuel between Sumter County and Jefferson County. It was stated therein that the evidence goes to show that “the ‘over the road’ vehicles were used more extensively on the highways of Sumter County than in Jefferson County, so the conclusion could be reached that they were principally used in Sumter County as compared with other counties of the state, including Jefferson County.” Brown further stated, “The appellee, therefore, has the privilege of selecting Sumter County as a place of assessing the property for taxation and the purchase of license tags.”

It appears that the above language in Brown has been understood by the trial court to mean that under Section 704 a motor vehicle has no particular situs for assessment and payment of ad valorem taxes, but its owner may select a situs based upon a criteria of “substantial use and operation.” We do not so construe Brown.

The court in Brown had before it a foreign corporation engaged in interstate commerce operating its ‘over the road’ trucks in and through Alabama. It had several terminals in Alabama where its trucks came to discharge and load cargo. Its “over the road” trucks were not designed to operation of any particular terminal and were not used or operated from a particular terminal but were continually moving through the various terminals and returning ultimately to the home base in Mississippi for layover, repairs and maintenance. It was shown that in moving into and out of Alabama the trucks used the highways of Sumter County and purchased fuel there to a greater extent than in Jefferson County, and, the court stated, to a greater extent than in any other county of the state. Therefore, for tax purposes, the evidence supported a finding that the trucks were principally used and operated in Sumter County.

We do not construe Brown as meaning literally that an owner of motor vehicles has the privilege of selecting its own tax situs. Such situs is prescribed by the taxing authority. Section 704 establishes such situs as the county in which the individual owner resides or the county in which corporate property is used or operated. The amendment of Section 704 in 1961 to provide that a corporate owner must assess its motor vehicles in the county from which they are used or operated does not appear to materially change the meaning of the statute.

As we see it, when the statute provides that taxes shall be paid in the county of residence of the owner or the county in which or from which the vehicle is used or operated, there can be only one such county. The statute does not say a county in which it is used or operated. It says “the county.” Brown says the factual basis of determining “the county” for taxation is principal use and operation as compared to any other county.

In the instant case, we are not dealing, as was Brown, with a foreign corporation, but with a domestic corporation engaged in the business of owning and leasing motor trucks and trailers to companies involved in interstate commerce. Its home office is located in Jefferson County. For the tax year involved the truck involved was leased and its operation directed from the office in Birmingham. It often loaded and unloaded at the terminal of the lessee in Birmingham. Wages of the driver were paid in or sent from the office in Birmingham. Substantially more freight was loaded in Jefferson than in St. Clair County. There was no evidence of the mileage driven or fuel purchased in St. Clair County. There was no terminal from which it loaded or unloaded in St. Clair County. There was no direction of the operation of the truck from St. Clair County. The only material connection that St. Clair County had with the truck was that if it left Jefferson County and proceeded east it by necessity used the highways in St. Clair County. It would appear that it equally used the highways in every other county through which it must by necessity pass to exit the state.

The stated purpose of Section 704 is to prevent motor vehicles from escaping taxation and provide a more efficient assessment and collection of taxes due on same. It provides for two events. First, the probate judge is directed not to issue a license until he is provided with a receipt from the tax collector of the county in which the vehicle is used and operated showing payment of ad valorem taxes for the preceding tax year. Second, every corporation desiring to operate a motor vehicle is directed to return such motor vehicle for ad valorem taxation to the tax assessor of the county from which such motor vehicle is used or operated. It further appears that, under the stipulation, there is no question that Jefferson County was the county in or from which the truck was used and operated — certainly in relation to St. Clair County-

What we have said is that there is a particular situs for assessment and payment of ad valorem taxes of motor vehicles and purchase of license tags. Such situs is determined by the county of an individual’s residence and by the county in or from which a corporate vehicle is used and operated. If the corporate owner assesses its vehicles in a county other than the county from which such vehicle is used or operated it has improperly assessed. It presents no problem for such owner to assess in the proper county. It knows which is the county from which or in which it principally uses and operates its vehicles.

We cannot and do not overrule Brown v. Dixie Highway Express, Inc., supra, but consider our decision here in conformity therewith.

Reversed and remanded.

BRADLEY and HOLMES, JJ., concur.


author: MADDOX, Justice. HEFLIN, Chief Justice

text:
    In re STATE of Alabama, DEPARTMENT OF REVENUE OF JEFFERSON COUNTY, Alabama v. ALABAMA LEASING COMPANY, a corp. Ex parte ALABAMA LEASING COMPANY.
    SC 1515.
    Supreme Court of Alabama.
    July 2, 1976.

      William M. Acker, Jr., Carleton P. Ket-cham, Jr., Birmingham, for petitioner.
    William J. Baxley, Atty. Gen., State of Alabama, William H. Burton, Acting Chief Counsel, Dept, of Revenue, Ronald J. Bow-den, Asst. Counsel, Dept, of Revenue, Asst. Attys. Gen., State of Alabama, for the State.
   MADDOX, Justice.

This Court agreed to review this case to consider the following question: May a domestic corporation properly pay the state ad valorem taxes on (and purchase the license tags for) a motor vehicle in any county in which the motor vehicle is used or operated to a substantial extent, or must the taxpayer pay the tax and purchase the tag for such vehicle only in the county from which the corporate taxpayer operates its vehicle?

The trial court ruled that the corporate taxpayer could properly assess its trucks in any county in which it was used or operated to a substantial extent. The Court of Civil Appeals reversed, Ala.App., 336 So.2d 1350, holding that a corporate vehicle has one situs for assessment and payment of ad valorem taxes — the county in or from which the vehicle is used or operated. Both courts based their conflicting decisions upon Brown v. Dixie Highway Express, Inc., 270 Ala. 46, 116 So.2d 369 (1959) and Title 51, Code of Alabama § 704, and § 877, as amended.

The ease is before us upon stipulated facts. The taxpayer, Alabama Leasing Company, was incorporated in Alabama in 1960 with its certificate of incorporation designating Birmingham as its principal place of business. The company was formed for the purpose of operating and leasing motor vehicles in transporting freight for hire. The vehicle involved is a 1964 International truck.

The taxpayer has much more contact with Jefferson County than with St. Clair County. From the company’s principal place of business in Birmingham, it directs the movements of the truck and keeps records of its movements. The company made more money from freight the truck carried to or from Jefferson County than from freight the truck carried to and from St. Clair County. Although the truck was in Jefferson County for longer periods than in St. Clair County, it did not remain in either county for any significant length of time because it traveled throughout the United States on irregular routes. During the years involved, the taxpayer purchased tags and assessed the truck for ad valorem taxes in St. Clair County.

In May of 1970, the Director of Revenue of Jefferson County levied an escape tax assessment against the truck for the three tax years involved. The company appealed the assessments to the Circuit Court, contending that having assessed the truck for taxes in St. Clair County, and having secured the tag from the Probate Judge of St. Clair County, it was not required to assess the truck for taxes in Jefferson County or to secure the tag from the Director of Revenue of Jefferson County.

We conclude that this case is controlled by Brown v. Dixie Highway Express, Inc., 270 Ala. 46, 116 So.2d 369 (1959). The question presented in Brown was whether a carrier, which had a terminal in Birmingham but used the roads of Sumter County more extensively than it used the roads of Jefferson County, could select Sumter County as the place of assessing the property for taxation and the purchase of license tags. This Court held that the carrier could select Sumter County.

Brown interpreted Section 704 of Title 51, which provided, in part:

“To prevent motor vehicles within the meaning of this article from escaping taxation and to provide for the more efficient assessment and collection of taxes due on same, no license shall be issued to operate a motor vehicle on the public highways of this state, nor shall any transfer be made by the probate judge as provided under this article, until the ad valorem tax on such vehicle shall have been paid in the county for the preceding year, as evidenced by a receipt of the tax collector where the owner of said vehicle resides, if the vehicle is owned by an individual, and if the vehicle is owned by a firm, corporation or association, then as evidenced by the receipt of the tax collector in the county in which said motor vehicle is used or operated. . . . ”

The Court of Civil Appeals interpreted Brown as follows:

“Brown says the factual basis of determining ‘the county’ for taxation is principal use and operation as compared to any other county.”

The Court of Civil Appeals has erroneously interpreted the rule announced in Brown. This Court was asked in Brown to base its conclusion upon the fact that the vehicles were principally used in Sumter County. It declined, using the following language:

“It is argued in one of the amicus curiae briefs that to construe the statute to mean substantial use and- operation was incorrect, but to the contrary the statute should be construed to mean that the place of taxation should be where the vehicles were principally used and operated. This argument impresses us as being the difference between ‘tweedle-dum and tweedle-dee’, since the evidence goes to show that the ‘over the road’ vehicles were used more extensively on the highways of Sumter County than in Jefferson County, so the conclusion could be reached that they were principally used in Sumter County as compared with the other counties of the state, including Jefferson County.”

In passing Section 704, the Legislature intended, as this Court held in Brown, to provide an equitable and expedient solution and allow the carrier the privilege of selecting a county in which its vehicles were substantially used.

It is argued that when the Legislature amended Section 704 in 1961, Brown was overruled. We cannot accept that argument. This Court’s decision in Brown was primarily based upon the first sentence of Section 704. In 1961 the Legislature amended several portions of Section 704, but made no significant change in the first sentence of that section. In an Attorney General’s opinion, found at 127 Quarterly Reports of the Attorney General 25 (1967), the view is expressed that by changing the word “in” to “from” in the second sentence of Section 704, the Legislature effectively overruled this Court’s decision in Brown. We disagree. Had the Legislature intended to overrule this Court’s decision in Brown, it could have altered the language this Court relied upon in reaching its decision. In fact, re-enacting the first sentence of Section 704 without substantial change, the Legislature could be said to have adopted this Court’s construction of that sentence. See Nolen v. Clark, 238 Ala. 320, 191 So. 342 (1939). Since Section 704 is a taxing statute, any ambiguity must be construed strictly against the taxing authority and liberally in favor of the taxpayer. S & S Distributing Co. v. Town of New Hope, Ala., 334 So.2d 905 [1976], Alabama Ice & Utilities Co. v. City of Montgomery, 252 Ala. 131, 40 So.2d 198 (1949); Paramount-Richards Theatres v. State, 252 Ala. 54, 39 So.2d 380 (1949).

We hold that a corporate taxpayer may pay ad valorem taxes on, and purchase license tags for, its vehicles in any county with which the vehicles have substantial contact. Therefore, the opinion of the Court of Civil Appeals is reversed.

REVERSED AND REMANDED.

BLOOD WORTH, FAULKNER, ALMON, SHORES, EMBRY and BEATTY, JJ., concur.

HEFLIN, C. J., and JONES, J., dissent.

HEFLIN, Chief Justice

(dissenting).

I agree with the opinion of the Court of Civil Appeals.


text:
    STATE of Alabama, DEPARTMENT OF REVENUE OF JEFFERSON COUNTY, Alabama v. ALABAMA LEASING COMPANY, a corporation.
    Civ. 569.
    Court of Civil Appeals of Alabama.
    Aug. 11, 1976.
   On Remand from Supreme Court.

WRIGHT, Presiding Judge.

Upon remand to this court by the Supreme Court of Alabama, Ala., 336 So.2d 1353, it is considered that this cause should be affirmed in accordance with the opinion rendered by the Supreme Court on July 2, 1976, in the above styled cause, Ala., 336 So.2d 1353.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


author: HOLMES, Judge.

text:
    The B. F. GOODRICH COMPANY v. William Travis BUTLER.
    Civ. 816.
    Court of Civil Appeals of Alabama.
    June 30, 1976.
    Rehearing Denied July 28, 1976.
    Jones, McEachin, Ormond & Fulton, Tuscaloosa, for appellant.
    Edward F. Morgan, Tuscaloosa, for appel-lee.
   HOLMES, Judge.

This is a workmen’s compensation case. The appeal is from the Circuit Court of Tuscaloosa County’s action overruling the petition of appellant B. F. Goodrich entitled “Motion for Relief from Final Decree.” Appellant’s (hereinafter referred to as employer) motion was filed pursuant to Rule 60(b)(6), ARCP.

This case has indeed had a long legal journey. The pertinent facts are as follows: In May of 1973, the appellee-employ-ee William Travis Butler injured his back while in the service of the employer. The employee thereafter filed a workmen’s compensation claim in the Circuit Court of Tuscaloosa County. In September of 1974, the trial court entered a final decree in favor of the employee, which decree provided for a lump-sum payment of the compensation award pursuant to the statutory provisions then in effect, Tit. 26, § 279(C) 9, Code of Alabama 1940. An appeal was then perfected to this court by the employer. In May of 1975, this court affirmed the trial court’s action. That same month, this court extended its opinion and overruled the employer’s application for rehearing. This court’s action may be found at Ala.App., 324 So.2d 776. For a more thorough understanding of this appeal, a reading of the court’s decision at 324 So.2d 776 is suggested.

Thereafter, in June 1975, the employer filed a petition for writ of certiorari in the Supreme Court of Alabama. This writ was granted in July of 1975. The following November, the supreme court quashed the writ as being improvidently granted. This action may be found at Ala., 324 So.2d 788. Within the prescribed time, the employer made application for rehearing to the supreme court. This application was overruled without opinion by the supreme court on January 2, 1976.

On the 28th day of January of 1976, the employer filed with the Circuit Court of Tuscaloosa County the aforementioned motion for relief from final decree.

The following appears in the employer’s motion and explains his contentions before the trial court and before this court on appeal:

“Defendant files this motion under the following authority:
“1. Rule 60(b), Alabama Rules of Civil Procedure;
“2. Act No. 86, Senate Bill 80, passed during the 1975 Fourth Special session of the Legislature of Alabama, and approved by the Governor on November 13, 1975.
“Act No. 86, above, contains numerous amendments of the Workmen’s Compensation Law of Alabama. Section 5 of the Act repeals the ‘lump sum payment’ provision formerly identified as Title 26, Section 279(C) 9, Payments. Paragraph (C) 9 was eliminated from Section 279. This is the provision that was added by the 1973 amendatory Act 1062 and that was attacked by Defendant in this case. “Section 9 of Act No. 86 re-enacts Section 299, Title 26, Code of Alabama, as last amended. Section 299 is as follows:
“ ‘Payment in lump sum. By agreement of the parties and with approval of the court, the amounts of compensation payable periodically hereunder may be commuted to one or more lump sum payments. No such commutation shall be approved by the court unless the court is satisfied that it is in the best interest of the employee or the employee’s dependents, in case of death, to receive the compensation in a lump sum rather than in periodic payments. In making such commutations, the lump sum payment shall, in the aggregate, amount to a sum equal to the present value of all future installments of compensation calculated on a six percent basis.’
“Therefore, the law permitting lump sum payments is now as it was before the 1973 amendment. Section 20 of Act No. 86 is as follows:
“ ‘The provisions of this act shall be applicable with respect to all accidents occurring after the act shall become effective, except that the provisions of Section 9 amending Section 299 of Title 26, as last amended shall apply to all cases or proceedings pending at the time the act becomes effective or thereafter commenced.’
“The foregoing Section 20 makes Section 299 of Title 26 applicable to all cases pending on November 13, 1975, the date Act No. 86 became effective. The instant case before this Court was pending on November 13, 1975, and, therefore, Section 299 applies to this case and relieves Defendant from the duty to pay to Plaintiff unaccrued payments of Workmen’s Compensation in a lump sum. Defendant has never agreed to pay Plaintiff any compensation.
“Therefore, under the authority set forth above, Defendant respectfully moves this Court to set aside that part of the Court’s final decree ordering Defendant to pay to Plaintiff unaccrued compensation in a lump sum. Defendant moves the Court to order Defendant to pay unaccrued compensation by the week.
“Defendant moves the Court, under authority of Rule 62(b), Alabama Rules of Civil Procedure, to stay the execution of and any proceedings to enforce its final decree of September 17, 1974, pending the disposition of this motion for relief from said final decree.
“Respectfully submitted this 28th day of January, 1976.
“JONES, McEACHIN, ORMOND & FULTON”

On February 19, 1976, the trial court denied the employer’s motion. As such, the trial court found no merit in the employer’s contention as set out above. We agree and affirm.

A pivotal contention made by the employer in brief is that the case was “pending” when Act No. 86 changed the applicable law. We do not pass upon this issue, as it is unnecessary to our disposition of the cause.

We initially note that retrospective application of a law is not favored, and such a construction will not be placed upon a statute unless it is clearly the legislative intent. Mobile Housing Board v. Cross, 285 Ala. 94, 229 So.2d 485; see generally 18 Ala.Dig. Statutes <s=>263.

The employer rests its argument upon § 20 of Act No. 86, which as set out earlier provides that the provisions of the Act apply to all accidents occurring after the Act becomes effective. Section 20 then makes exception for § 9 of the Act, which is to apply to cases then pending or thereafter commenced. To a reader of this section, the natural implication of the provision that the Act shall apply to accidents occurring after its enactment is that it does not apply to accidents which occurred prior to enactment. This is an illustration of negative implication, embodied in the maxim expres-sio unius est exclusio alterius. See Dickerson, The Interpretation and Application of Statutes, pp. 40-42. This conclusion is substantiated by the exception which by its specific terms makes only § 9 of the Act applicable to pending cases.

It can thus be seen that the legislature stated the application of the Act in such a manner as to exclude its operation upon pending cases, and expressly made one provision alone applicable to such cases. Had the legislature intended the entire Act to apply to pending cases, it would not have expressly made only § 9 so applicable, nor would it have described the act only as applying to accidents which occur after enactment.

Section 9 deals only with lump-sum awards by agreement of the parties. Section 5 of the Act repeals Tit. 26, § 279(C)9, of the Code providing for court-ordered lump-sum payments. Section 5 is by the terms of § 20, discussed above, not applicable to accidents occurring before enactment. It is lump-sum payment by court order which is at issue in this case, and it is therefore unaffected by the § 5 repeal. Any other conclusion would do violence to the natural import of § 20 and to accepted modes of language usage.

Able counsel for appellee-employee has filed with this court a motion to dismiss the employer’s appeal. In addition, the employee by his motion seeks the extraordinary remedy of damages and double costs. The motion is filed pursuant to Rule 38, ARAP and is bottomed on the premise that the employer’s appeal is frivolous. Counsel for the employee vigorously argued the motion during oral argument before this court.

We have carefully considered the employee’s motion and are of the opinion that it is due to be denied.

Motion denied and the case is affirmed.

AFFIRMED.

WRIGHT, P. J., and BRADLEY, J., concur.


author: BLOODWORTH, Justice.

text:
    In re the B. F. GOODRICH COMPANY v. William Travis BUTLER. Ex parte the B. F. Goodrich Company.
    SC 1984.
    Supreme Court of Alabama.
    Sept. 3, 1976.
    M. T. Ormond, Tuscaloosa, for petitioner.
    No appearance for respondent.
   BLOODWORTH, Justice.

Petition of the B. F. Goodrich Company for certiorari to the Court of Civil Appeals to review and revise the judgment and decision of that court in The B. F. Goodrich Company v. Butler, Ala.App., 336 So.2d 1357.

Writ denied. In denying this writ we do not wish to be understood as approving or disapproving the language used or the reasoning applied in the opinion although we do agree with the conclusion reached. See In re Lowery v. State, 291 Ala. 787, 286 So.2d 67 (1973).

MOTION OF RESPONDENT “TO DECLARE APPEAL TO BE FRIVOLOUS” DENIED. WRIT DENIED.

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


text:
    Julia Mae Carnes DURHAM v. Hugh Wallace DURHAM.
    Civ. 670.
    Court of Civil Appeals of Alabama.
    Aug. 11, 1976.

      Burns, Shumaker & Davis, and Otis J. Goodwyn, Gadsden, for appellant.
    J. A. Hornsby, Gadsden, for appellee.
   WRIGHT, Presiding Judge.

This is an appeal from a judgment of modification and order for sale and division of real estate.

Parties were divorced by decree of December 17,1973. Other than the usual provisions the decree contained only the following:

“Fourth: That the Plaintiff shall have the use and benefit of the home owned by the parties located at Route # 6, Box 3, Bryant Drive, Gadsden, Alabama, for and during the remainder of her life, and upon her death, all her right, title and interest in said home shall go to the son of the parties, Billie Hughland Durham, and should the Defendant survive the Plaintiff, all his right, title and interest in and to said property shall go to their son, Billy Hughland Durham.
“Fifth: That all right, title and interest in and to the household furnishings, furniture and effects owned by the parties, save and except Defendant’s bed and an air conditioner which shall remain the property of the Defendant, is hereby divested out of the Defendant, and title to the same is invested in the Plaintiff.”

Plaintiff remarried and moved from the home. Defendant filed a petition to modify because of the vacating of the home. The petition alleged that the son had relinquished all rights to the property given him in the divorce by executing a quitclaim deed to the plaintiff. It was further alleged that the original decree was based upon an agreement of the parties but varied therefrom.

Plaintiff filed answer to the petition, denying the material allegations and counterclaiming for half of savings which were alleged to have been withdrawn by defendant. The petition and counterclaim were set for hearing.

According to the testimony, on the date set for hearing, counsel reached agreement that the property would be sold and the proceeds divided equally between the parties. A quitclaim deed was to be obtained from the son and private sale would be held. In pursuance of the agreement, counsel for plaintiff forwarded to the son a quitclaim deed which was executed and returned. The deed was made to plaintiff and placed on record by counsel. Counsel notified plaintiff that the deed had been obtained and the sale was ready to be made. Plaintiff disavowed any agreement to sell and her counsel withdrew as her attorney.

The case was set for another hearing and judgment was entered directing a private sale and equal division of the proceeds between the parties. Plaintiff appeals.

Plaintiff contends that paragraph four of the decree set out above constituted a property settlement between the parties and may not be modified. Defendant contends said paragraph merely gave to plaintiff the use and benefit of the home for her life as alimony and thus is modifiable.

It appears to this court that paragraph four is most unusual. The home at the time of divorce was owned jointly by the parties. The record does not disclose whether the joint ownership was with right of survivorship. Though allegedly based upon an agreement of the parties, said agreement is not in the record. If it were, such agreement lost any contractual relationship when the decree was entered. It was never binding upon the court and was a nullity after decree. Garlington v. Garlington, 246 Ala. 665, 22 So.2d 89. Therefore, whether the agreement of the parties varied from the terms of the decree as entered is of no consequence after time for correction has passed. We can only determine what the decree says and its effect. Let us then examine the decree.

The fourth paragraph provided:

“That the plaintiff shall have the use and benefit of the home . . ., for and during the remainder of her life,

It is our opinion that the award to plaintiff was an award, of alimony in gross and therefore not modifiable. The recent case of Hager v. Hager, 293 Ala. 47, 299 So.2d 743, discusses the history of alimony in this state and distinguishes between periodic alimony and alimony in gross. It is there pointed out that they are distinguished through determination of both source and purpose. Citing the cases of Borton v. Borton, 230 Ala. 630, 162 So. 529 and Thompson v. Thompson, 282 Ala. 248, 210 So.2d 808, the court said as follows:

“ ‘Alimony in gross’ is the present value of the wife’s inchoate marital rights— dower, homestead, quarantine, and distributive share. It is payable out of the husband’s present estate as it exists at the time of the divorce. Borton v. Borton, supra. On the other hand, ‘periodic alimony’ is an allowance for the future support of the wife payable from the current earnings of the husband.”

The decree in this case made no provisions for the future support of the wife payable from the current and future earnings of the husband. In the absence of any evidence as to the estate of the husband at the time of the divorce, it can only be inferred that such estate consisted only of his joint interest in the home. Though his interest was not vested in the wife, the decree did grant to her the use and benefit of it for her life. The value of such use and benefit must be viewed as payment for the wife’s inchoate marital rights which were to be lost after divorce. Such award would survive the death of the husband.

In view of our decision that the award of the use and benefit of the home for her life was alimony in gross, it follows that her vacating therefrom has no effect. The award is vested for her life whether she lives in it or not.

It is further evident that it is unnecessary for us to decide the correctness or legal effect of the portion of paragraph four disposing of the legal titles of the parties after their deaths. That has no bearing upon the present controversy.

The testimony concerning a pre-judgment agreement of settlement is not pertinent. This is a case of modification not specific performance of a contract. There being no authority in the court to modify, we reverse and render judgment for appellant.

REVERSED AND RENDERED.

BRADLEY and HOLMES, JJ., concur.


text:
    Jack G. HUCKABA v. Frances HUCKABA.
    Civ. 792.
    Court of Civil Appeals of Alabama.
    Aug. 11, 1976.
    Taylor & Taylor, Russellville, for appellant.
    Bedford & Bedford, Russellville, for ap-pellee.
   HOLMES, Judge.

This is a divorce case.

The issues on appeal are: Did the trial court err to reversal in its award of alimony and in requiring the appellant-husband to pay certain expenses for an adult child? We affirm in part and reverse in part.

The original decree in pertinent part ordered the husband to pay $350 per month alimony. The home and furnishings were awarded to the wife. In addition, the husband was required to pay the debts of the parties. The husband retained three house trailers and forty acres of land.

Additionally, the husband was ordered to pay all expenses for his nineteen year old daughter’s college education and to furnish her with a car. The wife was given custody of the daughter. The husband, a retired Army man, was ordered to maintain his U. S. Government health, etc., insurance on the wife and his son and daughter. If this was not possible, he was apparently ordered to either procure comparable insurance for all of them or pay all medical bills which they might incur in the future.

.Thereafter, on motion and a hearing, the alimony payments were reduced to $275 per month. All other pertinent provisions of the original decree alluded to above were to remain in effect.

We do not deem it necessary to set out in detail the evidence regarding the parties’ finances and personal situation. There is evidence that reveals the following:

The wife is forty-three years old and is unemployed. She and the husband have been married since 1952, with one prior divorce in 1970 and remarriage in 1971. She has never worked save as a waitress, apparently in a family business, a local truck stop managed by the husband. She has a sixth grade education. She has high blood pressure and diabetes, and may need a hysterectomy.

The husband nets $480 per month from the U. S. Government as retirement pay from the U. S. Army. He receives some income from the rental of the house trailers. However, there are mortgages on two of the trailers. In addition to his retirement pay, the husband is employed by TVA and earns $5 per hour. The husband testified this work was seasonable. However, his federal income tax return for 1974 revealed an income of approximately $14,000. His returns for the three preceding years show income of from $10,000 to $13,000.

Additionally, there is testimony that the husband committed adultery. There was also considerable testimony by the wife that the husband assaulted and beat her and threatened her life on numerous occasions, both before and after the original divorce decree. The husband tended to portray the wife as a hypochondriac with delusions of persecution and an uncontrollable temper.

Initially, we find the learned trial court erred in granting custody of a nineteen year old child to the wife and in requiring the husband to pay for the nineteen year old child’s education, providing her with a car, and either paying medical bills of her and her brother (the brother is twenty years old), or providing insurance for them. The court has no power to make such orders with respect to adult children. Hardiman v. Hardiman, 48 Ala.App. 427, 265 So.2d 607, and cases cited therein. The cases found in 15A Ala.Dig. Parent and Child <®=>3.1(1), plainly show by its general tenor that a father’s obligation is solely toward his minor children. It affirmatively appears from the complaint that the daughter was then nineteen, on September 19, 1975; the bill making nineteen the age of majority was passed on July 22, 1975.

All such portions of the decree as are invalid as shown by the above are to be reversed.

We have carefully considered the evidence in light of the presumption that the judgment of the trial court after oral hearing is correct. Helms v. Helms, 54 Ala.App. 551, 310 So.2d 475. So viewing, it appears that the husband has an income of approximately $980 per month, not including the income from the rental of house trailers, and expenses of approximately $350. We do not find that the award of alimony, in this instance, when viewed in light of all the evidence, requires reversal. It is not the province of this court on appeal to substitute our view of the testimony for that of the trial court. Lamar v. Lamar, 263 Ala. 391, 82 So.2d 558. That court has broad discretion and will not be reversed except for palpable abuse. Sellers v. Sellers, 50 Ala.App. 158, 277 So.2d 616. We find no such abuse in the judgment below as it relates to alimony.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED FOR ENTRY OF A JUDGMENT NOT INCONSISTENT WITH THIS OPINION.

WRIGHT, P. J., and BRADLEY, J., concur.


text:
    Sara BANKS v. Ralph R. BANKS, Jr.
    Civ. 802.
    Court of Civil Appeals of Alabama.
    Aug. 11, 1976.
    Hubbard, Waldrop & Jenkins, Tuscaloosa, for appellant.
    Zeanah, Donald, Williams & Hust, Tuscaloosa, for appellee.
   WRIGHT, Presiding Judge.

This is an appeal from a divorce decree. We affirm.

Ralph R. Banks, hereinafter called the husband, filed suit against Sara Banks, hereinafter called the wife, in the Circuit Court of Greene County, Alabama, on June 12, 1975. The divorce was granted to the husband on the grounds of incompatibility. The decree provided for alimony in the sum of $450.00 per month for a period of eighteen months, and it further provided that in the event of the wife’s death or remarriage before the expiration of the eighteen months, such payments would cease. The court found that the wife owns substantial amounts of personal property, such as furniture, silver, china and other items; no decree was entered with regard to delivery or division of such personal property; the court specifically reserved jurisdiction in the event that division and delivery cannot be accomplished amicably. The court further found that the husband and wife jointly own substantial amounts of real property. No decree was entered with respect to such real property because the court was of the opinion that the parties would be able to divide or manage it amicably.

The parties were married on June 15, 1949. Their two children are grown. The wife became an alcoholic about six years ago. Prior to her alcoholism, they had had a happy marriage for twenty years. The wife has been hospitalized several times for her condition with no success. However, she has recently made progress in fighting her disease at an institution in Minnesota specializing in the treatment of alcoholics. At the time of the trial on October 31,1975, the wife had not taken a drink for six months. The wife did not work during her marriage except for a brief period in Minnesota as therapy. She received the minimum wage. The wife testified that such an amount is inadequate for her support. She needs further treatment and thus will have medical expenses. If the wife is able to remain sober, she hopes to secure a permanent job as a therapist helping other alcoholics.

The husband is an attorney earning between $19,000.00 and $20,000.00 a year. The parties jointly own their home and a business office and extensive acreage in Greene County. The wife’s interest in this property was appraised at $120,000.00; however, these properties do not produce appreciable income.

The husband separately owns real property valued at approximately $70,000.00. Husband, also, owns stock worth $45,000.00. Wife will be entitled to receive from her mother’s estate a distribution estimated at $70,000.00 to $80,000.00.

Both parties have committed acts of violence upon the other, mainly while under the influence of alcohol. The wife ad'mits that she has given the husband a hard time during the duration of her alcoholism.

The issue for review is whether the court erred in providing that the periodic alimony payments for support and maintenance of the wife would terminate at the end of eighteen months.

Giving full credence to the presumption of correctness of a decree rendered after oral hearing and further considering the grant of liberal discretion to the trial judge, we conclude from our review of the evidence that the decree is not unjust and not plainly wrong. Therefore, we must conclude that the discretion of the court was not abused. Phillips v. Phillips, 277 Ala. 2, 166 So.2d 726; Hendrix v. Hendrix, 56 Ala.App. 178, 320 So.2d 684, cert. denied 294 Ala. 758, 320 So.2d 687.

The wife argues that the judge abused his discretion in that since the award has characteristics of both alimony in gross and periodic alimony, it is uncertain whether the decree is modifiable in the event eighteen months elapse and the wife is unable to work because of alcoholism. We, therefore, address ourselves to this contention. It is well established in Alabama that the court retains jurisdiction over periodic alimony awarded for the indefinite future whether expressly reserved or not. Epps v. Epps, 218 Ala. 667, 120 So. 150. The court can modify terms relating to periodic alimony on a showing that the modification is equitable. Garlington v. Garlington, 246 Ala. 665, 22 So.2d 89. Contrariwise, alimony in gross is vested, and the court retains no jurisdiction to modify it. Hager v. Hager, 293 Ala. 47, 299 So.2d 743. The intent to award alimony in gross should be unequivocally expressed or necessarily inferred from the language used. Thompson v. Thompson, 282 Ala. 248, 210 So.2d 808; Montgomery v. Montgomery, 275 Ala. 364, 155 So.2d 317; Le Maistre v. Baker, 268 Ala. 295, 105 So.2d 867; Hora v. Hora, 46 Ala.App. 513, 244 So.2d 601.

We find no language in the decree, other than a contingent termination date of eighteen months, which bears any relation to alimony in gross. To the contrary, the decree specifically states that the property rights of the parties have not been considered and are specifically reserved. There is no indication of intent to bind the estate in event of his death. Though the various property interests of the parties were projected in the testimony, there is no indication of intent that the relatively small award was intended to be in settlement of the marital rights of the wife. The only reasonable conclusion to be reached from the decree is that the award is for the future support of the wife payable from the current earnings of the husband. The fact that it has a time limitation attached does not appear to affect its character as periodic alimony modifiable prior to its termination date.

We know of no Alabama case dealing with modification of an award of periodic alimony with a time limitation other than death or remarriage. However, other jurisdictions have held that a termination date does not remove the power of modification if done prior to the date of termination. Monroe v. Superior Court of Los Angeles County, 28 Cal.2d 472, 170 P.2d 473; Grenall v. Grenall, 169 Cal.App.2d 748, 337 P.2d 896. This view appears to be in line with the general power of modification of periodic alimony recognized in Alabama courts.

From the testimony and the language of the decree, it is to be reasonably inferred that it was the purpose of the trial court to require support of the wife during a period of recovery from her alcoholism. It is also inferable that the court felt that the termination of support would give the wife an incentive to pursue such recovery and become self-supporting within such time. This court is not of sufficient expertise to determine if such purpose of the court best serves the interest of the wife. Neither can we say it does not. There is no contention by the wife that the monthly award is insufficient or unjust, but only that if it is unmodifiable it is an abuse of discretion.

In view of our conviction that the award is one for periodic alimony and modifiable during its period of continuation, we do not find an abuse of discretion.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.