author: HOLMES, Judge.

text:
    Renee Bissell CLIFT v. Jack Thomas CLIFT.
    Civ. 974.
    Court of Civil Appeals of Alabama.
    Feb. 9, 1977.
    Rehearing Denied March 30, 1977.

      Edward L. Hopper, Huntsville, for appellant.
    Ralph H. Ford and Elbert H. Parsons, Jr., Huntsville, for appellee.
   HOLMES, Judge.

From a divorce decree rendered by the Circuit Court of Madison County awarding custody of the minor child to the father, the mother, Renee Bissell Clift, prosecutes this appeal.

She contends the trial court erred to reversal by:

(1) Allowing introduction of testimony regarding her religious beliefs;

(2) Granting custody of a child of tender years to the father, in the absence of a showing that the mother was unsatisfactory or unfit;

(3) Failing to award sufficient alimony in gross to a woman with no job, income, or estate. We are in agreement with the wife with respect to her first and third contentions. Accordingly, as stated below, the judgment of the trial court is to be affirmed in part and reversed and remanded in part.

The record reveals the following:

The parties met at the University of Alabama, and after a courtship of approximately four years, were married on December 26,1970. Their son, John Thomas Clift, was born on December 3, 1971.

After their marriage, the couple lived in a residence on a farm in Madison County, Alabama. The residence is located on a 60 acre tract of which the appellee-husband, Jack Thomas Clift, Jr., and the appellant-wife each own a 23/128 interest. They obtained this interest by gift from the husband’s aunt. Appellant-wife valued her property interest at $3,000. The remainder of the interest in the 60 acre tract is owned by the husband’s parents, who additionally own approximately 690 acres of adjacent farmland.

Sometime in 1972, the appellant-wife became a member of the religious sect known as Jehovah’s Witnesses. The appellee-hus-band did not become affiliated with this group. By March 4,1976, the parties’ marital relationship had so deteriorated that the wife left her husband. She took their child, John, with her. On March 5,1976, she filed a complaint for divorce in which she sought to have custody of John vested in her. On April 7, appellee-husband filed an answer and counterclaim in which he alleged:

“[TJhat the plaintiff [wife] is not fit to exercise the custody, care and control of the parties’ minor child and it would not be in the best interests of the child for her to be granted the custody, care and control of said child because the plaintiff is a member of the religious sect known as Jehovah’s Witnesses and defendant avers that the principles and teachings of that religion which the plaintiff has adopted, are such that it would be in the best interests of said child for his father to be granted his custody, care and control.”

At the trial, conducted on June 8, 9, and 10, 1976, the appellant-wife testified as follows about the appellee-husband: that he taught the. child to disrespect his mother; that he became embarrassingly drunk three times a year; that he attempted to induce his wife to make false statements to enable him to be absent from National Guard activities; that he had killed kittens with a hoe and thereafter, had eaten without washing his hands; that he had locked his wife out of the house and threatened to shoot her as a burglar if she ever again entered the dwelling through. a window; that he had kicked his wife in the buttocks and made derogatory remarks to her in front of the child; that he had experimented with marijuana; that he had gone to church one time in five years.

Concerning her conduct, she stated: that she had drunk with her husband on some occasions when he had become so intoxicated that she had had to drive the couple home; that neither party habitually drank at home in the evenings; that she had also experimented with marijuana in 1972-73, when her husband had used the substance; that she had never .been arrested.

Appellee-husband’s testimony regarding these incidents varied somewhat from those of the wife. He expressly denied both asking her to make a false statement regarding his National Guard activities and also threatening to shoot her. He admitted that he and his brother-in-law had exterminated some kittens because of the excessive number present at the farm, although he denied having done it with a hoe in front of the wife. He stated that he might have kicked his wife in the buttocks when she disobeyed him and admitted having told John that his mother was “messed up in the head.” On at least two occasions, he stated that after consuming alcoholic beverages his wife had driven them home in their automobile. He estimated his church attendance at six times in four years.

The appellant-wife was not working at the time of trial. She stated that she was not trained for any type of employment but had approximately three years of credit toward a secondary teaching certificate in the subject of biology. She declared a willingness to try to work and indicated she might complete her college education. She said it would take approximately a year and one quarter and $1,000 to $1,500 to obtain her degree. At the time of trial, she had neither inquired about completing her education nor interviewed to procure employment.

Subsequent to the separation, appellant-wife and John shared .a bedroom in her mother’s six bedroom home. Her mother is an unemployed schoolteacher, who is also a member of the Jehovah’s Witnesses. In addition to appellant-wife, her mother, and John, four other individuals lived in the house; two of appellant-wife’s sisters, her younger brother, and a seventeen year old who had been placed with her mother by the Department of Pensions and Security. The two sisters are aged 25 and 14. The 25 year old works as a “nanny” for another couple taking care of their children. The 14 year old attends public school. Appellant-wife’s 16 year old brother does not attend public school but is enrolled in a correspondence school. The 17 year old also attends public school. Thus, the record reveals that the only employed member of the group is the 25 year old sister.

Appellee-father is a self-employed farmer. From the time of the parties’ marriage until 1976, he had managed his father’s farm. His adjusted gross income for 1972, 1973, 1974, and 1975, was approximately $9,000, $10,000, $13,000, and $11,000, respectively. Commencing in 1976, he entered into a new agreement with his father whereby he leased 500 of his father’s 1,600 acres for farming. Payment consisted of 25% of the cotton he produced on the 500 acres. Appellee-husband stated that the 1976-1977 cotton crop had “black root” and the profit to be derived from its harvest was uncertain. As of June, 1976, sale of soybeans harvested in 1975 earned $2,000 in gross income for him for the year. At the time of trial, appellee-husband’s indebtedness on the cotton crop totaled $37,000; $12,000 to his father and $25,000 to a bank. His line of credit with the bank was limited to $95,000. He also had made arrangements to purchase $70,000 worth of farm equipment from his father. Appellee-hus-band’s monthly living expenses totaled approximately $350 per month. He made no cash disbursements for rent.

According to the appellee-husband, the nature of his work would allow him to spend approximately 75% of his time with the child. He stated that he had hired laborers to do most of the actual farming and that his duties were principally managerial and supervisory in nature. Appellant-wife confirmed that prior to the separation, the husband and child spent more time together than did father and child in the average home.

Appellee-husband testified that if he were awarded custody of the child they would continue to live in the house on the farm where the three had lived prior to the parties’ separation. He stated that there were streams and ponds on the farm where he and the child could fish. He noted that his parents’ house was approximately 4V2 miles away, and they had a swimming pool and horses which were freely accessible to John and him.

He stated that on those occasions when he would be unable to be with John, three options were available to him. His mother could care for the child; or his sister and her husband who were building a home two miles from his residence and who had two boys, ages 6 and 3, could keep John. He said he also had looked into the possibility of sending John to a nursery school operated by a Baptist Church in Madison, Alabama.

In addition to the above testimony, the court, over her counsel’s timely objection, compelled the appellant-wife and allowed the appellee-husband to answer certain questions concerning the wife’s religious beliefs. It is this action which constitutes the basis for two of her contentions on appeal.

As previously noted, appellant-wife is a Jehovah’s Witness and professes to believe in certain religious tenets held by members of that faith. In the trial below, she stated that she does not celebrate Christmas; that she would not have a birthday party for the child; and that she would not give him a birthday present as such, although she might otherwise give him gifts. She admitted having made statements to the appel-lee-husband within a year prior to the divorce to the effect that all churches and governmental organizations were led by the devil and that she therefore would not vote or otherwise participate in the electoral process. She said she hoped that she would be able to teach the child not to kill and, if necessary, to prove himself a conscientious objector in court to enforce this conviction and avoid military service. She also stated that she would teach the child to respect and' obey the law.

Jehovah’s Witnesses apparently believe that the end of the world is imminent, and in conjunction with this belief, the appellant-wife stated her belief that long range plans are unnecessary and fruitless. She was uncertain as to whether she would have already begun a college education fund for the child, as had the appellee-husband.

The record also reveals the following testimony by appellant-wife:

“Q Would your religious beliefs prohibit you from allowing John, your son, to receive a blood transfusion if one were recommended by competent medical authority?
“A If placed in the situation, again, all I can say is, in my heart I say I would not give him blood; but, in actuality, I don’t know what I would do until I am faced with that. I can’t say what I will do. That’s all I can say. Even for my own self, I don’t know what I would do.”

Appellee-husband’s testimony concerning his wife’s religious convictions corresponded to her testimony.

Prior to rendering his decree, the learned trial judge stated:

“Now, when I deal with the custody of this child, the Court, of course, must not do it on a religious basis as has been mentioned in this case many times. I should not deny the mother custody of the child because she is a Jehovah’s Witness, and I should not deny the father custody of the child because he is a Baptist. If either of these religions by proof should show that there is something that may happen to the child that is not in its best interest, of course, the Court should consider it and the Court has considered it.”

He then granted the divorce and awarded custody of the child to appellee-husband. Appellant-wife was given visitation privileges on the first and third weekend of each month and from June 15 through July 31 of each year. Holiday custody privileges were equally divided between the parties. Additionally, the decree provided:

“2. That the personal property owned by the parties or accumulated by them during the marriage shall be equally divided. .
“3. That the defendant shall pay to the plaintiff as alimony in gross the sum of One Thousand Two Hundred ($1,200.00) Dollars, payable Two Hundred ($200.00) Dollars a month for a period of six (6) months, the first payment to be due within ten (10) days of the date of this decree and a like payment on the same day of each of the following five (5) months, the Court taking into consideration in making this award the fact that at the time the parties separated on or about March 5, 1976, plaintiff took Two Thousand Five Hundred ($2,500.00) Dollars which belonged to the parties, which the Court does hereby award to plaintiff in addition to the said One Thousand Two Hundred ($1,200.00) Dollars.
“5. Plaintiff shall pay the fees of her attorney and the Court finds a reasonable fee for his services to be $1,500.00.”

Appellant-wife had withdrawn the $2,500 mentioned in the decree from one of her and appellee-husband’s joint accounts without the latter’s knowledge. At the time of trial, she had $500 from this sum remaining. She had paid her attorney $1,000 and had utilized the remaining $1,000 for her and John’s support during the three month separation. Appellee-husband gave her no money in the three month period between the separation and divorce.

Appellant-wife filed a motion for a new trial on July 7, 1976; subsequent to the August 25th denial of that motion, she filed this appeal.

I

As previously stated, appellant-wife contends that the trial court erred to reversal in allowing introduction of evidence pertaining to her religious beliefs. She contends that consideration of such evidence in a child custody proceeding is an unconstitutional infringement on her right to pursue religious beliefs of her choice. Authorities she cites for this proposition do not support her contention.

66 A.L.R.2d 1410, 1413-14, states:

“[T]he view taken in the great majority of the decisions which have touched upon the matter seems to be that while the courts in a child custody proceeding cannot pass upon the comparative merits of various religions and controlling effect must be given to the temporal welfare of the child, religious questions may well be bound up in the issue of temporal welfare and, if so, may properly be considered by the court.”

Similarly, it has been said:

“Religion may be an element in the award of custody of infants insofar as it remains a secondary factor to be considered along with all other circumstances weighed to promote the child’s best interest and general welfare; in no case may religion be the sole basis upon which a parent or other person is to be deprived of custody.” (Religion — A Factor In Awarding Custody Of Infants, 31 S.Cal.L. Rev. 313, 319 (1958).)

We deem this to be the applicable statement of the law.

The Constitution guarantees that citizens of the United States shall be free to pursue the religious beliefs of their choice. Consonant with this First Amendment right, courts have repeatedly declared that religious beliefs alone shall not constitute the sole determinant in child custody awards. Mollish v. Mollish, Tenn.App., 494 S.W.2d 145 (1972); Sinclair v. Sinclair, 204 Kan. 240, 461 P.2d 750 (1969); Quiner v. Quiner, Cal.App., 59 Cal.Rptr. 503 (1967); Welker v. Welker, 24 Wis.2d 570, 129 N.W.2d 134 (1964); Frantzen v. Frantzen, Tex.Civ.App., 349 S.W.2d 765 (1961); Sal- vaggio v. Barnett, Tex.Civ.App., 248 S.W.2d 244 (1952), cert. denied, 344 U.S. 879, 73 S.Ct. 176, 97 L.Ed. 681 (1952); Jackson v. Jackson, 181 Kan. 1, 309 P.2d 705 (1957); Smith v. Smith, 90 Ariz. 190, 367 P.2d 230 (1961); Cory v. Cory, 70 Cal.App.2d 563, 161 P.2d 385 (1945); Stone v. Stone, 16 Wash.2d 315, 133 P.2d 526 (1943); Reynolds v. Rayborn, Tex.Civ.App., 116 S.W.2d 836 (1938).

However, that one’s religious beliefs may not serve as the sole consideration in a child custody proceeding does not necessarily preclude exploration into those beliefs. In this state, as in other jurisdictions, the ultimate consideration in determining the proper custody of the child is what is in his best interests. Strickland v. Strickland, 285 Ala. 693, 235 So.2d 833 (1970); Williams v. Williams, 54 Ala.App. 703, 312 So.2d 396 (1975). Religious beliefs are as diverse as the individuals who comprise the citizenry of this country. Unfortunately, some of these beliefs embrace .philosophies which, contrary to being in the best interests of the child, might actually imperil his physical or mental health. Albeit courts are forbidden from weighing the merits of the religious tenets of the various faiths, they nevertheless are not precluded from inquiring into the beliefs of the parties who are seeking custody of the child in order to insure that such beliefs do not endanger the child.

“When custody of a child is in issue, the court has a narrow scope of inquiry regarding the religious concepts of the parents: Does the prospective custodian hold views which might reasonably be considered dangerous to the child’s health or morals? Thus a court would be warranted in denying custody to a parent whose religious notions would prevent such child’s receiving vaccinations or blood transfusions.” (Welker, supra, 129 N.W.2d at 138)

Where the court prohibited from hearing all testimony regarding religious beliefs, it would never learn of any religious ideas which might reasonably be construed as inimical to the child. We hold that questions concerning religious convictions, when reasonably related to the determination of whether the prospective custodian’s convictions might result in physical or mental harm to the child, are proper considerations for the trial court in a child custody proceeding.

Applying this standard to the facts of this case shows the trial court erred. Questions regarding the celebration of Christmas and birthdays or relating to participation in the electoral process or military service are not within the ambit of religious views which may reasonably be construed as endangering the mental or physical health of the child.

However, as shown infra, we do not deem the admission of this evidence to mandate reversal; for the decree of the trial court is supported by other evidence.

II

Appellant-wife contends that the trial court deprived her of custody of her child solely on the basis of her religious convictions. She also states that the trial court erred by awarding custody of a child of tender years to the father, in the absence of a showing that she was unsuitable or unfit to have custody. We disagree.

That testimony concerning one parent’s religious convictions has been introduced does not warrant reversal of the trial court’s decree awarding custody to the other parent when the decree is sustainable on other evidence. Meredith v. Meredith, 91 Idaho 898, 434 P.2d 116 (1967); Commonwealth ex rel. Derr v. Derr, 148 Pa.Super. 511, 25 A.2d 769 (1942), cert. denied, 317 U.S. 631, 63 S.Ct. 57, 87 L.Ed. 509 (1942); Sinclair and Salvaggio, supra.

In Salvaggio, the trial court changed custody of a child from her father and the latter’s second wife to the child’s natural mother, her father’s first wife. The trial court made the following findings of fact:

“During all the time Lee Salvaggio [father] had the custody of the child he has eared for her with kindness and attention, and has provided a home for the child and also has adequately provided for all her physical needs. Both Lee Sal-vaggio and his present wife are devoted to the child and have given it love and care. .
“ ‘Lee Salvaggio is a fit and proper person to have the custody of his child except that he and his present wife, because of their belief that the Bible requires it, propose to teach [the child] that it is wrong to salute the American Flag, and that it is wrong to celebrate and exchange gifts at Christmas and that it is wrong to kill others even in defense of the United States. Lee Salvaggio did not formerly follow such beliefs and was in the late war during which time he was in several battles and saluted the flag.’ ” (248 S.W.2d at 245-46)

The court’s “Conclusions of Law” stated:

“ ‘The Court is of the opinion that conditions affecting the welfare of [the child] since the rendition of the decree of divorce have materially changed so that it is now to the best interests of said child that her natural mother should have the custody of said child. The changes of condition affecting the welfare of such child include the change in the financial circumstances of [the mother] and her ability to provide a suitable home for her child. However, in arriving at its conclusions, the Court is primarily influenced by the proposed teachings of Lee Salvaggio and his present wife with reference to saluting the flag, fighting in defense of the United States and celebration of Christmas. . . .’” (248 S.W.2d at 246) [Emphasis supplied]

The Texas Court of Civil Appeals noted that religious teachings cannot serve as the basis for determining a child’s custody but went on to affirm the trial court’s decree, stating:

“[I]nsofar as the court’s order giving the custody to the mother is based on his discretion that a mother’s care and attention for a young female child is for that child’s best interest, the court’s order finds ample legal support.” (248 S.W.2d at 247)

As the trial court’s findings of fact and conclusions of law demonstrate, the principal consideration in awarding custody of the child to the mother was the father’s religious views. Despite the fact that the husband had had custody of the child, was able to adequately support the child, and was not shown to be adversely affecting the child in any manner, the appellate court affirmed the decision of the trial court.

Here, the trial court specifically stated that its decree was not predicated solely on religious convictions, although it did point out that they had been considered. The evidence reveals that the husband will be able to spend approximately 75% of his time with his son. They will live on a farm where they will be able to fish and go horseback riding together. Appellee-hus-band has had a stable income for five years and will be able to adequately provide for the physical needs of his son. On those occasions when he cannot be physically present with the child, John will be able to stay with his grandmother, aunt and two cousins, or in a day nursery.

On the other hand, the mother’s economic future is uncertain. She is untrained and has not worked since the marriage of the parties. There was no showing of what custody arrangements were likely if she obtained employment. In any event, it does not appear that she would be able to spend 75% of her time with John, as would appel-lee-husband. More evidence for affirmance of the trial court’s decree is contained herein than was present in Salvaggio, supra, a case in which the Supreme Court of the United States denied certiorari. 344 U.S. 879, 73 S.Ct. 176, 97 L.Ed. 681 (1952). Also, see Battaglia v. Battaglia, 9 Misc.2d 1067, 172 N.Y.S.2d 361 (Sup.Ct.1958).

The wife also contends that her statements regarding the husband, i. e., his killing of the kittens, his drinking, etc., display his unfitness as a parent and reveal that the trial court abused its discretion in awarding custody of the child to the husband. . She contends the principle of law which requires that custody of children of tender years be vested in their mother, absent a showing of unfitness or unsuitability on her part, governs in this instance. Messer v. Messer, 280 Ala. 395, 194 So.2d 552 (1967); Pettis v. Pettis, Ala.Civ.App., 334 So.2d 913 (1976).

Appellee-husband counters with the following language from Linderman v. Linderman, 49 Ala.App. 662, 664-65, 275 So.2d 342, 343-44 (1973):

“Cases dealing with custody of children are among the hardest to deal with and courts are seldom satisfied in all respects with the results reached; however, the overwhelming consideration in cases of this nature is the welfare of the children. The trial court heard the evidence, observed the witnesses, and based its decision of these factors in arriving at its determination that the welfare of the children would be best served by [the father] having primary custody of the children. There is a strong presumption favoring the trial court’s findings in cases of this class. . . . We are further mindful [that] . . . there is no law in this state which gives either parent priority as to the right of custody. It is usually that a child or children, particularly a girl of tender years, is considered to need the peculiar care of the mother, but such consideration is subject to the predominant rule of the best interest and welfare of the child or children. .
“As the Supreme Court of Alabama has stated, ‘ . . . it is not necessarily a question as to what view the reviewing court might have of the evidence, but that if, under any reasonable aspect, the decree below is fairly supported by credible evidence, it is our duty to affirm.’ See Lamar v. Lamar, 263 Ala. 391, 82 So.2d 558; Rodgers v. Thornton, 254 Ala. 66, 46 So.2d 809.”

In applying the above principles, which in this instance are conflicting, to the facts of this case, we deem the latter must prevail. “All things being equal, the mother is presumed to be best fitted to guide and care for children of tender years.” Messer, supra, 280 Ala. at 397, 194 So.2d at 554. Here, we cannot say all things are equal. As previously stated, the mother will presumably be compelled to work and be away from the child. At its inception, the presumption of a mother’s being best suited to care for a child of tender years was premised on a different society, wherein the mother’s place was in the home where she attended to the children. See Anonymous, 55 Ala. 428 (1876); Striplin v. Ware, 36 Ala. 87 (1860). In a case such as this, where the father’s work will enable him to spend 75% of his time with his child and the mother, should she find employment, would quite likely be separated from the child, the presumption is not to be accorded the significance it might in other circumstances.

Moreover, appellee-husband has been engaged in the business in which he has demonstrated a capacity to earn a reasonably stable income. He has already begun planning for the child’s future. He has made arrangements for someone to keep John in those instances when physical separation is necessary.

Appellant-wife, to the contrary, is doubtful as to what the future holds for her. She is currently untrained and is uncertain what type employment she may eventually find. Although tentative, it seems certain she will be required to work. Custody arrangements for the child at such time were not revealed.

Child custody may be altered at any time upon a showing of changed circumstances. Presently, however, the record does not reveal the plain error or manifest injustice such as to warrant reversal. Turner v. Turner, 46 Ala.App. 350, 242 So.2d 397 (1970).

Ill

Appellant-wife also states the trial court abused its discretion in failing to make adequate award of alimony. The record sustains her contention.

This court is cognizant of the established principle of law in this state which declares that where evidence in a divorce case is heard ore terms by the trial court, the decree rendered therein is presumed correct and will not be reversed on appeal unless shown to be an abuse of discretion and plainly and palpably wrong. Meyers v. Meyers, 55 Ala.App. 697, 318 So.2d 725 (1975). Similarly, we recognize that there is no fixed formula for ascertaining the correctness of the trial court’s award of alimony. Caldwell v. Caldwell, 54 Ala.App. 479, 309 So.2d 833 (1975). However,

“It must depend upon . . . what is just and reasonable.
“The court may and should inquire into the earning ability of the parties and their probable future prospects, their age, sex, health and station in life; the duration of the marriage, . . . ” (Davis v. Davis, 274 Ala. 277, 278-79, 147 So.2d 828, 830 (1962)

Examination of these criteria with regard to the facts of this case convinces us that, in this instance, the trial court abused its discretion in the award of alimony in gross.

Appellee-husband’s average income for the four years preceding the divorce averaged nearly $11,000. Appellant-wife had not obtained employment during the marriage, ostensibly in compliance with her husband’s wishes. He desired that she be a full time mother. While the amount of appellee-husband’s income for 1976 was tenuous, data from prior years indicates that his earnings will approach $11,000. One neither acquires a $95,000 line of credit with a lending institution nor plans to purchase $70,000 worth of equipment if virtually no income is anticipated. In short, appel-lee-husband’s prospects appear good.

Appellant-wife’s prospects do not appear so favorable. After five years of marriage and due in part at least to her husband’s wishes, she finds herself unable to procure anything other than menial labor. She has indicated a desire to complete her college education, but the alimony in gross awarded below would not enable her to accomplish this task.

Educational needs are a proper consideration for the trial court in awarding alimony. Phillips v. Phillips, 49 Ala.App. 514, 274 So.2d 71 (1973), cert. denied, 290 Ala. 370, 274 So.2d 80 (1973). Moreover, here it does not appear that requiring the husband to pay periodic alimony would overburden him financially. His annual expenses are only $4,200. An increase in the award of alimony would assist appellant-wife in acquiring a degree, thereby providing her an opportunity for a fresh start and a career in her new capacity as an unmarried woman. We realize there was other property involved, but we believe an increase in the award of alimony in gross is required.

Having taken into account the current status of the parties, their future prospects and the reasons therefor, we conclude that in this instance, fairness and justice require appellee-husband to render appellant-wife financial assistance whereby she may at least have the opportunity to acquire a college degree. Accordingly, we hold that the trial court erred to reversal in its award of alimony in gross. The judgment is reversed and the cause remanded for entry of a judgment awarding $200 per month for 12 months as alimony in gross.

Appellant-wife’s attorney has also requested that the court award him a fee for representing the wife on appeal. A fee of $500 is hereby awarded.

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

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


source: Caselaw Access Project

author: MADDOX, Justice.

license: Public Domain

text:
    Ex parte Renee Bissell CLIFT.
    SC 2478.
    Supreme Court of Alabama.
    June 3, 1977.
   MADDOX, Justice.

WRIT DENIED.

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


text:
    The ST. PAUL FIRE AND MARINE INSURANCE COMPANY, a Corporation v. Graham C. THOMPSON.
    Civ. 1062.
    Court of Civil Appeals of Alabama.
    March 23, 1977.
    Rehearing Denied April 20, 1977.

      Eyster, Eyster & Key, Decatur, for appellant.
    W. H. Rogers, Moulton, for appellee.
   HOLMES, Judge.

The plaintiff recovered from the defendant insurance company under the theft provisions of a policy of insurance. The jury awarded plaintiff $3,248 and the defendant has taken this appeal.

The only issue on appeal is whether the trial court erred in refusing to grant the insurance company’s motion for a directed verdict. Put another way, in view of the policy provisions, was sufficient evidence presented to allow the jury to consider whether or not a theft had occurred?

The pertinent policy provision regarding coverage is as follows:

“B. Theft, but excluding escape or mysterious disappearance.”

The facts as revealed by the record are virtually undisputed and reveal that the plaintiff owned 34 brood cows. These cows were three and four years old and were raised from calves by the plaintiff. These cows and others were kept on plaintiff’s 200 plus acre farm. Seventy acres of the farm were in pasture and all the acreage was under good fence.

In April 1976, the plaintiff discovered that 14 cows were missing. At the time of the loss, the plaintiff was feeding the cows himself and would count the cows every day. The cows were counted every day because they were springing.

Immediately upon discovery of the loss, the plaintiff began a diligent search of his property and the surrounding area. A friend assisted him in the search. This diligent search was conducted for weeks and revealed nothing. The plaintiff specifically testified that he checked all gaps in the fence and none were open. Furthermore, the fence was in good condition and he discovered no place where the cows could have “gotten out.”

There was evidence that approximately two weeks prior to the loss, a tornado had struck in the area. However, the cows were accounted for after this event. The loss was reported to the sheriff’s office. In the testimony regarding the report to the sheriff, the following is found:

“Q. All right. To your knowledge did the Sheriff come out there or any of his Deputies come out there to investigate?
“A. No, sir, I don’t know whether he come out or not. I asked him to come out and come by this Old Trinity Road out by Smyrna there, that there had been a beef slaughtered over there stole out of a pasture adjoining mine, and he said that they had been riding that road pretty regular and that they would check it over.
“Q. All right, sir. Had you had any cattle to go missing from your pasture before this?
“A. Yes, sir.”

Our research reveals that the precise policy terms, as we now have before us, have not been defined by the courts of Alabama. However, the Supreme Court of Nebraska, speaking through the distinguished jurist, Mr. Justice Harry Spencer, has addressed this problem.

In Raff v. Farm Bureau Insurance Company of Nebraska, 181 Neb. 444, 149 N.W.2d 52 (1967), we find the following:

“In popular usage, the word ‘theft’ is another name for ‘larceny.’ As a general rule, however, the term as used in an insurance policy is not necessarily synonymous with larceny, but may have a much broader and more inclusive meaning. It could cover pilferage, swindling, embezzlement, conversion, and other unlawful appropriations as well as larceny. Here, however, it is apparent that the term is used in a much more restricted sense than is usually the case. While it is not necessary to arrive at a precise definition herein, it is evident ‘theft’ must be construed to mean something other than escape, [or] mysterious disappearance, ... because these are specific exclusions in the policy.
“ ‘Escape’ is defined in Black’s Law Dictionary (4th Ed.), p. 639, as a flight from custody. In Webster’s New International Dictionary (2d Ed.), Unabridged, p. 871, the word ‘escape’ is defined as: ‘To get away * * *; to break away, get free, or get clear * * *.’ As used in this policy pertaining to livestock, ‘escape’ must be construed to mean straying from or leaving the place of confinement.
“ ‘Mysterious disappearance,’ under the terms of a theft policy, has been defined as disappearance under unknown, puzzling, and baffling circumstances which arouse wonder, curiosity, or speculation or under circumstances which are difficult or hard to explain. Conlin v. Dakota Fire Ins. Co., N.D., 126 N.W.2d 421.” (149 N.W.2d at 55)

With the above in mind, was there sufficient evidence to warrant the submission of the case to the jury? We find there was not, even though we have viewed the evidence and the trial court’s action in denying the motion for directed verdict in light of the scintilla rule. See Rule 50(e), ARCP.

We are of the opinion that a theft loss, under the terms of the policy here, may be proved by circumstantial evidence and ordinarily, whether a theft has occurred within the meaning of the policy, is a question of fact for the jury. See State Farm Mutual Automobile Ins. Co. v. Barrow, 46 Ala.App. 392, 243 So.2d 376 (1971). However, the circumstantial evidence presented must be of a theft. Otherwise, the verdict would be based on conjecture or speculation. The law in Alabama is clear that a verdict cannot rest upon speculation or conjecture. State v. Mims, 249 Ala. 217, 30 So.2d 673 (1947). The scintilla doctrine does not conflict with this rule. Georgia Power Co. v. Edmunds, 233 Ala. 273, 171 So. 256 (1936). See also, 9 Ala. Digest Evidence &wkey;597.

Here, keeping in mind the provision of the policy, we have evidence that the plaintiff had missing 14 cows; that he made a diligent search; that the cows were under good fence with no gaps found in the fence; and that the only evidence at all concerning a theft is that regarding the prior slaughter of a cow on the adjoining property. Suffice it to say that this evidence, standing alone, cannot support a verdict for plaintiff. To do so would be to base a verdict on the aforementioned speculation or conjecture.

We have no evidence, circumstantial or otherwise, of a theft. Such evidence of a theft in this instance might be tracks, the gate left open, some sign that unauthorized persons had been on the property of the plaintiff or other appropriate evidence. Here, from the evidence presented, we have what appears to be a “mysterious disappearance” which is excluded by the terms of the policy.

In accord with our decision, see Meinecke v. State Farmers Mutual Ins. Co. of Missouri, Mo.App., 525 S.W.2d 442 (1975); Gifford v. M.F.A. Mutual Ins. Co., Mo.App., 437 S.W.2d 714 (1969); Adler v. Lumber Mutual Fire Insurance Company, 280 N.C. 146, 185 S.E.2d 144 (1971); Davis v. St. Paul Mercury & Indemnity Co., 227 N.C. 80, 40 S.E.2d 609 (1946).

To hold otherwise would be to convert the insurance policy in question to what might be described as an “all risk” policy. We cannot make a new contract for the parties. Maryland Cas. Co. v. Allstate Ins. Co., 281 Ala. 671, 207 So.2d 657 (1968).

We would be remiss if we did not comment that both counsel have favored this court with excellent briefs for which we are grateful.

The only issues raised have been resolved in favor of the defendant. The case is due to be reversed and rendered for the learned trial judge’s failure to grant the defendant’s motion for a directed verdict.

REVERSED AND RENDERED.

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

      . After the jury’s verdict, the learned trial judge ex mero motu set aside the judgment and ordered a new trial. The action of the trial court was entered after notice of appeal. The trial court no longer had jurisdiction to enter its order in view of the notice of appeal. Maya Corp. v. Smith 239 Ala. 470, 196 So. 125 (1940). The defendant persisted in this appeal and no issue of this aspect is made by either party.


author: SHORES, Justice.

text:
    Ex parte Graham C. THOMPSON.
    SC 2534.
    Supreme Court of Alabama.
    June 3, 1977.
   SHORES, Justice.

WRIT DENIED.

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


author: WRIGHT, Presiding Judge.

text:
    Brenda Washburn WELLS v. Billy Jack WELLS.
    Civ. 1037.
    Court of Civil Appeals of Alabama.
    March 30, 1977.
    Rehearing Denied April 27, 1977.
    Walter E. Duffey, Huntsville, for appellant.
    W. W. Haralson, Scottsboro, for appellee.
   WRIGHT, Presiding Judge.

This appeal arises from the award of child custody pursuant to a divorce.

Brenda Wells and Billy Jack Wells were married on December 23,1964. A son, Billy Jack Wells, Jr., was born on December 29, 1967. The couple separated on June 1, 1975, and Mrs. Wells took Billy with her. Mrs. Wells filed for divorce on the ground of incompatibility on August 15.

After oral hearing a judgment was entered on April 23, 1976, granting a divorce on the ground of incompatibility and awarding custody of Billy to Mrs. Wells until the school year ended and then to Mr. Wells until August 18, when the court would make a final determination of custody. On August 18, the court awarded permanent custody to Mr. Wells but gave Mrs. Wells custody on alternate weekends, during the summer, and for a week at Christmas.

Mrs. Wells moved for new trial. After hearing further testimony on October 25, the court denied the motion. Mrs. Wells appeals from the judgment as it relates to custody of the minor child.

Mrs. Wells is 34, works as a contract specialist at Redstone Arsenal where she earns $10,000 yearly, and lives in an apartment in Huntsville. Mr. Wells is 35, works on the third shift at Ballet Fabrics in Scottsboro for $3.21 per hour, and lives at Woodville in the home occupied by the family for some three years prior to the separation.

The evidence was that Mrs. Wells worked in Huntsville and attended college at night while she was living at Woodsville and that Mr. Wells or his mother would care for Billy during the time Mrs. Wells was away. After the separation of the parties, Billy was cared for by a baby-sitter when his mother was away. During the period when Mr. Wells had custody, Billy was cared for by his paternal grandmother at night while Mr. Wells was working. Mr. Wells cared for Billy from the time he got out of school until it was time for Mr. Wells to go to work. The testimony indicated that each parent loved the child and provided proper care when in their custody. Further details of the testimony would serve no useful purpose.

Mrs. Wells primarily raises two issues. First, did the court err in granting custody to Mr. Wells without applying the presumption that a mother is best suited to have custody of .a child of tender years? Second, should the trial judge have granted a new trial because of his bias or prejudice against Mrs. Wells?

Alabama cases have often stated the principle that all things being equal, a mother is presumed to be best fitted to provide care, custody and control for children of tender years. Messer v. Messer, 280 Ala. 395, 194 So.2d 552 (1967); Blankenship v. Blankenship, 248 Ala. 489, 28 So.2d 409 (1946). But even this is subject to the predominant rule of the best interests of the child. Linderman v. Linderman, 49 Ala.App. 662, 275 So.2d 342 (1973).

No specific guidelines have been drawn as to what ages are included within the tender years. Each child custody case is decided on the basis of its own facts and circumstances. Kilgore v. Kilgore, 54 Ala.App. 336, 308 So.2d 249 (1975). The court could have determined the child not to have been peculiarly dependent upon the mother. The child in this case was nearly nine years of age at the time of final judgment.

If there is not involved a child of such tender years as to be peculiarly dependent on the mother, there is no presumption favoring custody of the mother rather than the father, when either is a fit and proper custodian. Hammett v. Hammett, 46 Ala.App. 206, 239 So.2d 778 (1970); Turner v. Turner, 46 Ala.App. 350, 242 So.2d 397 (1970).

There is a strong presumption in favor of the finding of the trial court in cases of this class. Hagler v. Hagler, 50 Ala.App. 266, 278 So.2d 715 (1973). We find no plain or palpable error in the findings made by this trial court. Where the decree is fairly supported by the credible evidence, it is our duty to affirm. McGee v. McGee, 284 Ala. 320, 224 So.2d 672 (1969).

Mrs. Wells in her motion for new trial charged bias and prejudice to the trial judge as follows:

“That the Plaintiffs brother, William G. (Bill) Washburn of Route 2, Woodville, Alabama is known to the said Judge as having testified in favor of Hugh Otis Bynum in a recent trial in said county in which the tragic bombing incident resulted in the Judge’s severe injuries and further that the said Judge had opposed the said William G. (Bill) Washburn in a recent political campaign, wherein the said Washburn sought a local political office. That said facts surrounding the previous described encounters between the Court and Plaintiff’s brother may have had such overwhelming influence on the thinking of the Court that the Court was unable in this case to render a decision based upon precedent and upon the presumptions cited by himself in his second paragraph of the custody order sought by this Plaintiff to be set aside for re-hearing.”

Prejudice on the part of a judge is not presumed. Duncan v. Sherrill, 341 So.2d 946 (Ala.1977). But a judge is presumed to be qualified and unbiased with the burden on the moving party to prove the contrary. Street v. Hutto, 46 Ala.App. 324, 241 So.2d 848 (1970). There is no evidence of any partiality or prejudice on the part of the judge here. Nothing indicates that he should have disqualified himself under Canon 3C of the Canons of Judicial Ethics, nor granted a new trial.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


author: FAULKNER, Justice.

text:
    Ex parte Brenda Washburn WELLS.
    SC 2538.
    Supreme Court of Alabama.
    June 3, 1977.
   FAULKNER, Justice.

WRIT DENIED.

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


text:
    STATE of Alabama v. ROCKAWAY CORPORATION.
    Civ. 954.
    Court of Civil Appeals of Alabama.
    April 6, 1977.
    Rehearing Denied May 11, 1977.

      William J. Baxley, Atty. Gen., State of Ala., Willard W. Livingston, Counsel, Dept, of Revenue, and Asst. Atty. Gen., State of Ala., Herbert I. Burson, Jr., Acting Counsel, Dept, of Revenue, and Asst. Atty. Gen., Philip C. Davis, Asst. Counsel, Dept, of Revenue, and Asst. Atty. Gen., State of Ala., for the State, appellant.
    Oakley W. Melton, Jr., Montgomery, for appellee.
   HOLMES, Judge.

This is an appeal by the State of Alabama from a decree of the Circuit Court of Montgomery County. That court held certain proceeds paid to the taxpayer, Rockaway Corporation, were not subject to Alabama’s lease tax imposed by Tit. 51, § 629(21), et seq. The pertinent part of the statute levies a tax on proceeds “accruing from the leasing or rental of tangible personal property.”

The issue on appeal is whether the proceeds in question were paid to the taxpayer for the rental or lease of tangible personal property within the meaning of the statute.

The taxpayer contends that the proceeds paid to it are for personal services and, hence, not taxable. The State on appeal argues otherwise.

Tit. 51, § 629(22), Code of Alabama (1973 Cum. Pocket Part), in pertinent part provides:

“[Tjhere is hereby levied ... a privilege or license tax on each person engaging or continuing within this state in the business of leasing or renting tangible personal property at the rate of 4% of the gross proceeds derived by the lessor from the lease or rental of tangible personal property; . . .”

The term “gross proceeds” is defined as:

“. . the value proceeding or accruing from the leasing or rental of tangible personal property, without any deduction on account of the cost of the property so leased or rented, the cost of materials used, labor or service cost, interest paid or any other expense whatsoever, . . ” (Tit. 51, § 629(21)(d), Alabama Code (1973 Cum. Pocket Part))

Pursuant to the above statute, the State made a final assessment of taxes against the taxpayer-Rockaway. Taxpayer appealed this assessment to the Circuit Court of Montgomery County, where trial was had on May 13, 1976.

The evidence adduced at the trial is virtually undisputed and reveals the following:

Taxpayer-Rockaway, operating under various names, has been engaged in the development of wirebound boxes and wire-bound box machinery continuously since 1907. The primary machinery which it manufactures is utilized in producing wire-bound boxes. Taxpayer leases this machín-ery to numerous manufacturers located both throughout the continental United States and in twelve foreign countries.

The T. R. Miller Mill Company, Inc., of Brewton, Alabama, is the only company with whom the taxpayer has business dealings in the State of Alabama.

On December 31, 1946, taxpayer and the Miller Company entered into a 25-year “Lease and License Agreement,” which was renewed through exercise of an option by the Miller Company in 1970. Taxpayer is referred to as “Lessor” in the agreement; the Miller Company is termed the “Lessee.” Pertinent portions of this agreement are as follows:

“Lessor is willing to lease box-making machines to Lessee and to license Lessee under said patents on the terms and under the conditions hereinafter set forth.
“1. . . . Lessor hereby gives to Lessee the right and license (a) to make on Lessor’s machines in the factory of Lessee at Brewton, Alabama boxes covered by any one or more of the patents listed in Exhibit A; (b) to use in said factory, for the manufacture of boxes, machines leased hereunder from Lessor; (c) to use in said factory, for the manufacture of boxes on Lessor’s machines, the method inventions covered by any one or more of said patents; and (d) to sell in the United States boxes made under this agreement.
“2. Subject to the terms and conditions herein contained, Lessor hereby leases to Lessee the machines of Lessor now or hereafter delivered to Lessee for use hereunder.
“Lessee hereby agrees to pay to Lessor for the initial right to possess all machines leased hereunder, delivered F.O.B. place of manufacture, a sum of money, to be specified by Lessor, not to exceed the reasonable cost of production of such machines, .
“Lessee agrees that it shall not have or assert any property right in any machine leased under this agreement, but shall have only the right to use the same under the conditions of this agreement.
“3. Lessee agrees to pay to Lessor, in addition to the amounts hereinbefore provided to be paid by Lessee for the initial right to possess the machines leased hereunder, (a) sums of money equal to four per cent (4%) of the gross sales or fair market value, whichever is higher, of all ‘Rock Fastener’, ‘All-Bound’, and ‘James’ boxes made under this agreement, and (b) sums of money equal to two per cent (2%) of the gross sales or fair market value, whichever is higher, of all other boxes made under this agreement; and Lessee agrees to pay such sums as a royalty for the use of any or all of the patented inventions hereunder licensed to be used and/or as a rental for the use of any or all machines leased hereunder; and Lessee agrees to pay such sums ... on or before the fifteenth day of each calendar month, . . . ” [Emphasis supplied.]

In accordance with paragraph 2 of the agreement, the Miller Company paid Rocka-way a $112,500 fee for the initial right to possess the machinery. The factory cost to Rockaway for the machinery it provided to the Miller Company was $176,225. Payments pursuant to clause 3 above for the “use of the patented inventions . and/or as a rental for the use of any or all machines leased” have totaled in excess of $3,000,000 over the years.

David G. Kingsley, a senior vice president for Rockaway, testified that the “patented inventions” referred to in the above quoted portion of paragraph 3 related to patents on boxes. On cross examination, he admitted that patents had expired for three of the boxes on which Rockaway was receiving a 4% “royalty” payment.

Kingsley also testified that in addition to providing the Miller Company with machinery, Rockaway provided numerous additional services to that company and all of Rock-away’s lessees. There were no charges to the Miller Company or any other lessees, other than the two set forth above, for these additional services, which are extensive.

Rockaway develops and designs wire-bound boxes. The wirebound box industry differs from other manufacturing industries in that the boxes are not merely manufactured, placed on shelves, and sold. Rather, boxes usually must be integrated into an already existing user packaging procedure. Rockaway deals directly with these ultimate users, i. e., the customers who purchase boxes from Rockaway’s lessees, to determine their requirements for boxes. In this manner, Rockaway both creates a demand for its patented boxes, which are sold by its lessees, and also insures that its leased machinery possesses the capacity to produce boxes of the desired characteristics.

Taxpayer-Rockaway advertises and prints promotional brochures regarding the boxes for its lessees. Rockaway also operates two laboratories for testing the strength and durability of boxes. The taxpayer additionally conducts “market and box arrival inspections and servicing” whereby it maintains employees in major terminals to check the condition of its lessees’ boxes upon arrival at a receiver’s warehouse.

Taxpayer-Rockaway also provides the following services to its lessees without charge: training courses for box salesmen and plant mechanics: cost systems and cost reduction consultation; and machinery service assistance. Furthermore, Rockaway maintains engineer records regarding the equipment held by each lessee, so that it can respond to inquiries from the various lessee-manufacturers concerning the type boxes their machinery is capable of manufacturing.

Other services relating to the development of machinery and substitute box materials are also provided by Rockaway without cost.

Kingsley, the Rockaway vice president, further testified that Rockaway retained the same agreement with all of its lessees, the pertinent provisions of which have been set forth, supra.

John R. Miller, the president of the T. R. Miller Mill Company, Inc., testified that his company purchases machines and equipment from numerous other companies, none of which provided the type services rendered his company by Rockaway. He stated the Miller Company could not afford to pay the sum of money it did to Rockaway if the latter did not provide the above enumerated services.

Against this background, the trial court found that the lump sum payment of $112,-500, made by the Miller Company to taxpayer-Rockaway for the “initial right to possess” the machinery, was for the lease or rental of tangible personal property and therefore subject to the lease or rental tax imposed by Tit. 51, § 629(22), Code of Alabama.

The $3,000,000 in monthly payments from the Miller Company to Rockaway, the amount of which was determined by the lessee’s gross receipts derived from the sales of its boxes (pursuant to paragraph 3 of the agreement), were held to have been made for services rendered and therefore not subject to the lease or rental tax levied by Tit. 51, § 629(22). It is from this latter finding that the State has taken this appeal.

As previously noted, the State contends the decree of the trial court is clearly erroneous insofar as it fails to tax the variable monthly sums paid by the Miller Company to Rockaway pursuant to paragraph 3 of their agreement. The State argues that the only agreement between Rockaway and the Miller Company is that embodied in the written contract, the substance of which is a lease.

Taxpayer, on the other hand, contends in accordance with the findings of the trial court, that the variable payments, 4% or 2% of the gross sales made by the Miller Company, depending upon the type box involved, are actually for services rendered. Consequently, taxpayer concludes, since the payments are for services rendered, they are not governed by Tit. 51, § 629(22), which only imposes taxes on gross receipts derived from leases or rentals. As shown below, this court is not in absolute agreement with either party.

In order for the variable monthly payments made by the Miller Company to taxpayer-Rockaway to be subject to the tax levied by Tit. 51, § 629(21), et seq., it is mandatory that they have been made for the lease or rental of business machines. To determine whether the payments were so made, it is necessary to ascertain the true nature of the agreement between the parties. Put another way, the intent of the parties to the agreement must be established. Substance must govern over form. Otherwise, evasion of the taxing statutes would be permitted by merely affixing a nontaxable label to an otherwise taxable transaction. Boswell v. Paramount Television Sales, Inc., 291 Ala. 490, 282 So.2d 892 (1973).

The nature of the agreement is determined by the intent of the parties. Wagar v. Marshburn, 241 Ala. 73, 1 So.2d 303 (1941). To ascertain the intention of the parties, regard must be had to the relationship of the parties at the time of the contract. G.F.A. Peanut Ass’n v. W. F. Covington Planter Co., 238 Ala. 562, 192 So. 502 (1939).

“And where the parties have reduced their agreement to writing, the writing, in the absence of fraud or mistake, is the sole expositor of the transaction and the agreement of the parties. A court cannot, under the guise of construction, provide a new and different contract for the parties. . . . ” (Canal Insurance Company v. Stidham, 281 Ala. 493, 497, 205 So.2d 516, 519 (1967))

Viewing the circumstances of this case with the above principles in mind, we must conclude that the trial court erred in construing the variable payments to have been made for services rendered.

The terminology of the agreement supports our conclusion. It is termed a “lease and license agreement.” Rockaway and the Miller Company are referred to throughout as “lessor” and “lessee,” respectively.

Rockaway is in the business of developing wirebound boxes and machinery to manufacture these boxes. The payments in clause 3 are unambiguous and plainly in keeping with Rockaway’s business of licensing box patents and rental of machinery for manufacturing these boxes. For reference sake, the pertinent portion of the clause in question is again set forth:

“3. Lessee agrees to pay to Lessor, in addition to the amounts hereinbefore provided to be paid by Lessee for the initial right to possess the machines leased hereunder, (a) sums of money equal to four per cent (4%) of the gross sales or fair market value, whichever is higher, of all ‘Rock Fastener’, ‘All-Bound’, and ‘James’ boxes made under this agreement, and (b) sums of money equal to two per cent (2%) of the gross sales or fair market value, whichever is higher, of all other boxes made under this agreement’ and Lessee agrees to pay such sums as a royalty for the use of any or all of the patented inventions hereunder licensed to be used and/or as a rental for the use of any or all machines leased hereunder; and Lessee agrees to pay such sums ... on or before the fifteenth day of each calendar month . . . ” [Emphasis supplied.]

Under 3(a) the lessee, the Miller Company in this case, is bound to pay Rockaway 4% of the proceeds it derives from the sale of certain named boxes: “ ‘Rock Fastener,’ ‘All-Bound,’ and ‘James’ ” boxes. It is imperative to note that at the time of the agreement between the parties, the patents to these boxes were held by Rockaway. We deem it immaterial that these patents have now expired, for the Miller Company is paying Rockaway for the benefit it derives from the sales of these patented boxes. Hence, it is apparent that the 4% portion of the payment is a “royalty,” as stated by clause 3 of the agreement.

The Miller Company is also obligated under 3(b) to make payments equalling 2% of the gross sales or fair market value, whichever is higher, of all boxes, other than those specifically named above, which it produces.

This 2% figure is computed in one of two methods. If the box produced is one to which Rockaway retains the patent, the 2% is a “royalty” payment for the Miller Company’s utilization of Rockaway’s patent. However, as Rockaway’s vice president testified, Rockaway also receives a 2% sum on all other boxes (those to which Rockaway does not possess the patents) which are produced on machinery leased to the Miller Company by Rockaway. Since Rockaway retains no rights in these latter boxes, payments of this second category cannot be deemed to constitute royalties paid by the Miller Company for the utilization of Rock-away’s patents. It is apparent that payments of this latter category are actually proceeds paid to Rockaway for usage of the machinery. Hence, these amounts are for the lease or rental of tangible personal property.

Such a construction of the agreement is supported by the following portion of paragraph 3:

“[A]nd Lessee agrees to pay such sums as a royalty for the use of any or all of the patented inventions hereunder licensed to be used and/or as a rental for any or all of the machines leased hereunder; . ” [Emphasis supplied.]

To the extent that the amount of the payment made by the Miller Company to Rock-away is based on the gross sales of boxes patented by Rockaway, the payments do constitute a “royalty.” If in any month the Miller Company also produces boxes to which Rockaway does not hold the patents, money thus paid constitutes a “rental for the use of any or all machines leased hereunder.” Thus, the rationale for the “and/or” portion of the agreement is clear. Conceivably, in any given month, the Miller Company might manufacture boxes both patented and not patented by Rockaway. In this case the “and” provision would become effective. However, if either no boxes to which Rockaway held the patent, or only boxes which it had patented were manufactured and sold by the Miller Company, the “or” provision of the clause would govern.

Similarly, other portions of the agreement reveal the trial court erred in finding the payments in question to have been made for services rendered. Nowhere in the agreement do the parties mention the alleged “services,” which Kingsley testified Rockaway provided to its lessees. It is difficult for this court to reconcile the apparent intent of the parties as conveyed by the express meaning of the written words in the agreement with that which the parties would have us believe exists. Put another way, we are hard pressed to believe that parties would draft an agreement under which in excess of $3,000,000 has been paid for “services” to be rendered and not only not mention the nature of these services but actually mislabel them as constituting “royalty” and “rental” payments.

Furthermore, although Rockaway does provide the services described supra, we cannot at this time state that it is contractually bound to do so. As has previously been stated, Rockaway’s business is twofold. It designs and leases machinery for the production of wirebound boxes which it also designs and patents. The majority of the services it supposedly provides to the Miller Company appear to this court to be inherent in conducting a business of this nature. In other words, as opposed to being in the business of providing services to licensees of patents and lessees of machinery, Rockaway is in the licensing and leasing business. The services it performs are incidental to this primary business. We would note that Rockaway does not contend the services it provides are solely for the Miller Company. Rather, they benefit all those leasing Rockaway machinery and using Rockaway patents.

From what we have said above, it is apparent that the trial court erred in finding the payments made pursuant to paragraph 3 of the agreement to have been for services rendered. We hold the amount of the payments made pursuant to clause 3(a) (the 4% clause) of paragraph 3 to constitute royalty payments. Likewise, receipts obtained by Rockaway pursuant to clause 3(b) (the 2% clause) are royalties insofar as the amounts thereof are based on gross receipts from the sale or production of boxes to which Rockaway retains the patents. Neither of the preceding amounts are subject to the tax imposed by Tit. 51, § 629(21), et seq.

However, the amount of the payments made by the Miller Company to Rockaway pursuant to clause 3(b) of the agreement, for the production of boxes for which Rock-away does not possess the patents, is for the lease or rental of tangible personal property. This amount, therefore, is subject to the tax imposed by Tit. 51, § 629(21), et seq.

Taxpayer additionally contends that such taxation is prohibited because the effect thereof would be taxation by the State of Alabama upon services rendered by Rocka-way outside the State of Alabama. Taxpayer asserts such taxation is constitutionally impermissible because the statute fails to use an apportionment formula. This contention is without merit.

We have previously stated that the taxable portion of the payment is for the rental of tangible personal property. This property is located entirely within the State of Alabama. There is no requirement for apportionment of a tax which is levied solely on activities carried on within the state, absent a showing that such taxation places a burden on interstate commerce. International Harvester Co. v. Department of Treasury of State of Indiana, 322 U.S. 340, 64 S.Ct. 1019, 88 L.Ed. 1313, rehearing denied, 322 U.S. 772, 64 S.Ct. 1281, 88 L.Ed. 1597 (1944).

REVERSED AND REMANDED FOR ENTRY OF A JUDGMENT NOT INCONSISTENT WITH THIS OPINION.

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

ON REHEARING

The State of Alabama, in an excellent brief in support of its application for rehearing, contends that we should withdraw our prior opinion in view of the fact that the patents on certain boxes have expired.

Able counsel for the State correctly notes that in our opinion we state, “We deem it immaterial that these patents have now expired, . . . ” It is the State’s position that the fact that the patents have expired is material. The revenue department cites cases which stand for the proposition that the payment of royalties beyond the expiration date of the patent constitutes misuse of the patent and is unlawful.

The appellee-Rockaway correctly points out that the cases cited by the State involve controversies between the holders of patents and their licensees and not between the parties as we have before us.

This court’s opinion is in large measure bottomed on the interpretation of the contract between Miller and Rockaway. The fact that one of the parties may not have to abide by the terms of the contract does not give the State the authority to take advantage of this fact and levy a tax.

This court would further note that since the rendition of our original decree, we have discovered the case of Stone v. Stapling Machines Co., 220 Miss. 470, 71 So.2d 205 (1954). This case involves the exact situation that was before us in our original opinion. Although a somewhat different conclusion was reached, the same rationale employed by this court was used by the Supreme Court of Mississippi in Stone, supra.

In Stone, supra, the Mississippi Supreme Court defined “royalty” as a tax or duty paid to the owner of the patent for the privilege of manufacturing or using the patented article. We perceive no reason why the fact that a party may not be obligated to make such payment allows the State to collect a tax pursuant to the lease tax statute.

OPINION EXTENDED; APPLICATION FOR REHEARING OVERRULED.

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

      . Although not set forth in the above recital of specific contract provisions, the agreement between the parties contains a paragraph which enables the Miller Company to exercise an option and thereby procure production rights to boxes patented by Rockaway subsequent to the execution of the agreement. Payments to Rockaway for this right are governed by the 2% provision of paragraph 3(b).


author: BLOODWORTH, Justice.

text:
    Ex parte STATE of Alabama.
    SC 2591.
    Supreme Court of Alabama.
    June 10, 1977.
   BLOODWORTH, Justice.

WRIT DENIED.

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


author: BRADLEY, Judge.

text:
    Annie L. Monk BUCKALEW, formerly Annie L. Monk Dunagan, Individually and as Administratrix of Estate of Winford Clarence Monk, Deceased v. Frank HASKEW.
    Civ. 1071.
    Court of Civil Appeals of Alabama.
    May 25, 1977.

      Gilmore & Keahey, Grove Hill, John L. Lawler, Howell, Johnston, Langford, Fink-bohner & Lawler, Mobile, for appellant.
    Lee B. Williams, Grove Hill, for appellee.
   BRADLEY, Judge.

This appeal was initiated when Frank Haskew filed suit in the Circuit Court of Clarke County against Annie L. Monk Buckalew, formerly Annie L. Monk Duna-gan, individually and as administratrix of the estate of Winford Clarence Monk, and the heirs of the deceased Winford Clarence Monk. Haskew asked that he be declared the legal owner of eight Town of Grove Hill First Mortgage Industrial Development Revenue Bonds in the amount of $500 each, and that the estate and heirs of Winford Clarence Monk be divested of any interest they might have in the bonds. The defendants denied Haskew’s claim to the bonds and counterclaimed to be declared the legal owners of the bonds. After a trial without a jury, the circuit court rendered a judgment in favor of Haskew. The administra-trix, Mrs. Buckalew, appeals.

Appellant Buckalew maintains the trial court committed reversible error in two respects: first, the court allowed into evidence testimony which violated the Dead Man’s Statute and second, there was. insufficient legal evidence to support the trial court’s decree.

The portion of Title 7, Section 433, Code of Alabama 1940 (Recomp.1958), otherwise known as the “Dead Man’s Statute,” involved here is as follows:

“In civil suits and proceedings, there must be no exclusion of any witness because he is a party, or interested in the issue tried, except that no person having a pecuniary interest in the result of the suit or proceeding shall be allowed to testify against the party to whom his interest is opposed, as to any transaction with, or statement by, the deceased person whose estate is interested in the result of the suit or proceeding, . ..”

The question to be answered is whether the testimony of Haskew and Mrs. Buckalew, allowed over objection, dealt with any transaction with or statement by the deceased. Hartford Accident & Indemnity Co. v. Kykendall, 287 Ala. 36, 247 So.2d 356 (1971); Gilbreath v. Levi, 268 Ala. 148, 105 So.2d 96 (1958); Gamble v. Whitehead, 94 Ala. 335, 11 So. 293 (1891). If the questioned testimony related to a collateral matter, it is not objectionable and was properly admitted. Solinger v. Solinger, 57 Ala.App. 225, 327 So.2d 721 (1975). However, if the testimony concerned or related to a direct transaction with the deceased, it is objectionable and should have been rejected.

The first objected to question and answer occurred when the witness Mrs. Buckalew was on the stand:

“Q Tell the Court how you first learned of the existence of any bonds?
“A Well, Frank came to me and said that he had the bonds that he had bought.
“MR. KEAHEY: I object and move to exclude any testimony in regard to anything Mr. Haskew had with the deceased in which he had an interest which is adverse to the estate of the deceased.
“It is a violation of the dead man’s statute.
“JUDGE YOUNGER: It is between him and the witness. I overrule.
“MR. KEAHEY: Except.”

This colloquy strikes us as being very similar to that in Gamble v. Whitehead, supra. There the plaintiff-witness, who had brought an action against the administrator of the estate of a deceased person to recover the proceeds of a note which had been intrusted to the deceased for collection, was asked whether she had ever received anything for the note. Over objection, she was permitted to answer no. On appeal the supreme court said: “ . Neither the question nor the answer relates directly to, or sheds any direct light upon any transaction with, or statement by defendant’s intestate. . . . ” 94 Ala. at 336, 11 So. at 294. Likewise in the case at bar, we do not believe that either the question to which Mrs. Buckalew objects or the answer given related to or shed any light upon any transaction with or statement by the deceased Mr. Monk. The objection to this question was properly overruled.

The next objected to question was directed to Haskew while he was on the stand:

“Q Now, the first bond was number 109-D, the first bond called. Do you know who received the proceeds from that bond?
“A I got it.
“MR. KEAHEY: We object and ask it be excluded. It was a transaction he had with the deceased.
“JUDGE YOUNGER: Overrule.
“MR. KEAHEY: Except.”

Again we do not believe that the trial court committed error in allowing Haskew to testify that he received the proceeds from the call of one of the bonds in question, and we rely on the Kuykendall case, supra. There the witness had signed as surety with the deceased two promissory notes which were made payable to two banks in Tuscaloosa. The witness was permitted to testify over objection that he did not receive any of the proceeds from the two notes. The supreme court held that this question did not violate Title 7, Section 433, supra.

The third objected to question was asked of Haskew:

“Q Frank, these bonds that are in this lawsuit, who paid for them?
“A I did.
“MR. KEAHEY: I object and ask that it be excluded as to who paid for the bonds. It is certainly a transaction with the deceased. This man had an interest adverse to the estate of the deceased.
“JUDGE YOUNGER: I’m not sure it is, but if you want to I will hear you on it.
MR. KEAHEY: It is undisputed these bonds were purchased in the name of Winfred Clarence Monk, who is now deceased, and Mrs. Buckalew is his widow and has been appointed administratrix of his estate. We had a lot of testimony about a conversation Mrs. Buckalew had with Mr. Haskew in an effort to let him get around it, and testimony to the transaction he had in the name of the deceased these bonds are in the name of.
“JUDGE YOUNGER: Isn’t there some presumption by virtue of possession?
“MR. KEAHEY: He has got the bonds and won’t give them to us.
“JUDGE YOUNGER: Let me hear from you, Mr. Williams.
“MR. WILLIAMS: First of all, my question to him, the response to that question wouldn’t be any transaction by the deceased.
“JUDGE YOUNGER: I overrule the objection.”

Again, we do not think this colloquy violated section 433 and rely on Gilbreath v. Levi, supra. In that case the plaintiff, who had been in the used car business with the deceased, was permitted to testify that an amount of $1,928.75, which was the amount of a loan evidenced by a check made by plaintiff to deceased, was still due and unpaid. The supreme court held that the question and answer did not violate section 433, supra, for the testimony elicited from the witness did not relate to any transaction with or statement by the deceased. We consider the testimony challenged here to be controlled by the holding in the Levi case and find that the trial court committed no error in overruling the objection and allowing the witness to testify that he paid for the bonds in question.

Having concluded that the testimony objected to by Mrs. Buckalew was properly admitted into evidence, we now turn to the question whether there is sufficient legal evidence in the record to support the judgment of the trial court.

The evidence reveals the following. In 1960 Frank Haskew purchased ten Town of Grove Hill Industrial Development Revenue Bonds, each with a face value of $500. He then gave Winford Clarence Monk a sum of money with which Monk likewise purchased ten Town of Grove Hill Industrial Development Revenue Bonds. At that time Monk was operating a service station and store in Grove Hill. Haskew kept the ten bonds purchased by Monk in his possession. When the first bond of that group was called, Monk cashed the bond and gave Has-kew the proceeds. As the interest coupons matured, Monk would cash those also and give the proceeds to Haskew.

In 1966 Monk died, leaving his wife, now Mrs. Buckalew, and four children. The second bond in the group purchased by Monk was called after Monk’s death. Has-kew asked Mrs. Buckalew to cash the bond and give him the proceeds. When she attempted to cash the bond, Mrs. Buckalew was informed by bank officials that she first would have to be appointed adminis-tratrix of her deceased husband’s estate. She was so appointed and then cashed the bond; however, instead of giving the proceeds to Haskew, she deposited the $500 into the account of the estate.

Mrs. Buckalew testified that she had not seen the bonds in question in the possession of her husband before his death and had no knowledge of these particular bonds until Haskew asked her to cash them, but she had heard her husband mention some bonds. She also stated she did not know who had paid for the bonds in question.

Haskew said he had known Monk for twenty to twenty-five years before Monk’s death and that, in addition to their social relationship, they had joined in some business ventures. He had loaned Monk money “all along.”

Haskew further testified that Mrs. Buck-alew cashed in the first two interest coupons which became due after Monk’s death and gave him the proceeds. Thereafter, he cashed the interest coupons himself. Has-kew also said that when he discovered Mrs. Buckalew had cashed the bond and demanded that she give him the money, she admitted the $500 belonged to him and said she would have to repay it from the children’s Social Security benefits. Mrs. Buckalew denied the truth of this portion of Haskew’s testimony.

We think there is sufficient evidence to support the trial court’s judgment that Haskew is the legal owner of the bonds in question, that Monk’s estate and heirs have no legal claim to these bonds, and that the administratrix, Mrs. Buckalew, is liable to repay to Haskew $500 for the bond which she cashed.

The trial court having committed no reversible error, its judgment is affirmed.

AFFIRMED.

HOLMES, J., and PAUL, Retired Circuit Judge, sitting by special appointment, concur.


author: PAUL, Retired Circuit Judge.

text:
    Guy H. SPEEGLE v. The CITIZENS BANK.
    Civ. 1095.
    Court of Civil Appeals of Alabama.
    May 25, 1977.
    Sherman B. Powell, Jr., Decatur, for appellant.
    Howard Belser, Jr., Decatur, for appellee.
   PAUL, Retired Circuit Judge.

This appeal is from the denial of a motion to set aside a default judgment. We affirm.

Appellee Citizens Bank filed suit in the Circuit Court of Lawrence County against appellant Guy H. Speegle and his son, Guy Jo Speegle, on January 13, 1975, for $2,834.34 due on a promissory note. The case was designated as Civil Action No. 75-108. A default judgment was entered by the clerk of the circuit court under Rule 55(b)(1), ARCP, on April 10, 1975, for $1,881.62.

On July 22, 1975, Guy H. Speegle, one of the defendants against whom default judgment had been rendered, filed a separate suit against Citizens Bank to set aside the judgment in Case No. 75-108 and to return to him funds withheld by a garnishment. The complaint alleged that plaintiff had not been served personally with the summons and complaint and had no knowledge of the action until served with a writ of garnishment. Answer was filed by the defendant and after hearing the witnesses orally, the court rendered a judgment denying the motion to set aside the default judgment. Guy H. Speegle appeals.

Examination of the record reveals that though plaintiff sought relief by means of a separate suit, it is in substance and effect a motion for relief from judgment provided by Rule 60(b) ARCP, and apparently the trial judge so treated it.

The question raised by appellant is whether the trial court abused its discretion in denying the motion to set aside the judgment.

The trial court took judicial notice of the summons and complaint as part of the records of the court. The return is as follows:

“Executed this 22 day of January . 19 75, by serving a copy of the within Summons and Complaint with
Guv Jo Speegle
Guv Speegle
Defendant_
Harold Terrv
Sheriff.
Jerry Hale and Dwight Hale
Deputy Sheriff”

Appellant Guy Speegle testified that he had signed a promissory note with his son to enable him to purchase a car; that around January 22, 1975, he was served with a “summons or subpoena” by deputy Dwight Hale which “had nothing to do with no suit;” that he had twice been served with subpoenas in a criminal action in which he was the prosecuting witness; that the only paper he had ever been served with in relation to this suit had been a note of garnishment that he could not read the summons and complaint when his attorney showed it to him but had never been served anything like that. Mrs. Guy H. Speegle testified she had never seen anyone serve a summons and complaint by the bank against the Speegles, had never found one and had no knowledge of one, and that the same deputy had served two subpoenas on her husband. Guy Jo Speegle testified that deputy Dwight Hale had served him with one copy of the summons and complaint around January of 1975 in the presence of one of his uncles; that he lives in a trailer within sight of his father’s house but never observed the deputy going to his father’s house; that he never said anything to his father about being served with the suit; and that he never answered or contested the claim. Neither party called deputy Dwight Hale to testify.

Appellant’s motion alleges the court lacked personal jurisdiction to render judgment against him and thus the default judgment is void.

Numerous Alabama cases have stated that to set aside a default judgment as void for lack of personal jurisdiction the moving party must aver and prove want of service, notice or knowledge of the suit as well as averring and proving a good, valid or meritorious defense. See Gordon v. Halstead, 283 Ala. 578, 219 So.2d 629 (1969); Colonial Life & Accident Ins. Co. v. Armstrong, 271 Ala. 136, 122 So.2d 517 (1960); Hawkins v. Sanders, 260 Ala. 585, 72 So.2d 81 (1954); Murphree v. International Shoe Co., 246 Ala. 384, 20 So.2d 782 (1945); Jaffe v. Leatherman, 226 Ala. 182, 146 So. 273 (1933); Eidson v. McDaniel, 216 Ala. 610, 114 So. 204 (1927); King v. Dent, 208 Ala. 78, 93 So. 823 (1922); Prudential Cas. Co. v. Kerr, 202 Ala. 259, 80 So. 97 (1918); Ingram v. Alabama Power Co., 201 Ala. 13, 75 So. 304 (1917); McAdams v. Windham, 191 Ala. 287, 68 So. 51 (1915); Fields v. Henderson, 161 Ala. 534, 50 So. 56 (1909); Dunklin v. Wilson, 64 Ala. 162 (1879). This view has continued even after the adoption of the Alabama Rules of Civil Procedure. Modernage Homes v. Wooldridge, 55 Ala.App. 68, 313 So.2d 190 (1975).

There is a strong presumption in favor of the correctness of the sheriff’s return, and the party challenging it has the burden of establishing lack of service by clear and convincing proof. 62 Am.Jur.2d, Process, § 181; 72 C.J.S., Process § 102; Howard v. Drinkard, 261 Ala. 555, 74 So.2d 704 (1954); Bastian-Blessing Co. v. Gewin, 217 Ala. 592, 117 So. 197 (1928); Modernage Homes v. Wooldridge, supra.

The return with which we are concerned here states “a copy” was served on both defendants. This may mean that only one copy was served or that each defendant was served with a copy. Where the return is susceptible of different meanings, that meaning which is most conformable to the officer’s legal duty will be adopted. Farmers’ State Bank v. Inman, 207 Ala. 284, 92 So. 604 (1922). Personal service on each individual defendant was required here. Rule 4(c)(1), ARCP. There is a presumption of regularity that an officer performed his duty, that what ought to have been done was not only done but rightly done. 62 Am.Jr.2d, Process, § 170. The mere fact that a return contains the names of both defendants is not sufficient where the entire return indicates but single service. 62 Am.Jur.2d, Process, § 167. That a copy was executed on the parties is sufficient to give the court jurisdiction to render a default judgment. Florence v. Paschal, 50 Ala. 28 (1873). From the face of the return it could be found that service was had by leaving a copy of the summons and complaint with each of the two defendants.

In a case such as this where the trial court has heard the evidence ore tenus, the findings reach us with a presumption of correctness. Howard v. Drinkard, supra; Bastian-Blessing Co. v. Gewin, supra; Modernage Homes v. Wooldridge, supra. The evidence is insufficient to overcome the presumption.

We therefore affirm the judgment denying the motion to set aside the judgment by default.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.

      . Sitting by order of the Chief Justice pursuant to § 6.10 of the Judicial Article, Amendment No. 328 of the Constitution.


text:
    Joe V. CLAYTON v. Billy SIMPSON.
    Civ. 1110.
    Court of Civil Appeals of Alabama.
    May 25, 1977.

      J. Thomas Mullis of Burke & Mullís, Arab, for appellant.
    Robert W. Hanson, Albertville, for appel-lee.
   HOLMES, Judge.

This is an appeal by the defendant from a jury verdict and judgment thereon. The plaintiff sued the defendant for $5,000 alleging misrepresentation and breach of contract.

Able counsel raises several unrelated issues in brief; however, the dispositive issues are (1) Does the evidence support the verdict and judgment and (2) Did the trial court err in allowing the plaintiff to demand a jury some four months after the original complaint and answer thereto had been filed. We find no reversible error regarding either aspect.

The original complaint was filed by the plaintiff in June, 1975. The defendant’s answer was filed in July, 1975. In December of 1975, the plaintiff filed what we construe to be a Rule 39(b) motion, demanding trial by jury. This motion was granted by the trial court. On appeal, the defendant contends that the trial court erred to reversal in granting such motion.

Rule 39(b), ARCP, in pertinent part provides that:

“[Notwithstanding the failure of a party to demand a jury in an action in which such a demand might have been made of right, the court in its discretion upon motion may order a trial by jury of any or all issues.”

Different views exist as to the appropriate circumstances which warrant invocation of the trial court’s discretionary grant of a jury trial pursuant to Rule 39(b).

“One view is that [the trial court has] broad discretion under this Rule to order jury trials, and that this discretion should be exercised liberally in favor of granting them.
“In other cases it has been pointed out that a court should not allow such a motion as a matter of caprice, and should deny the motion in the absence of adequate grounds, or highly exceptional circumstances, . . . ” 6 A.L.R.Fed. 217, 222.

We deem the former view to be the better. As stated by the United States Court of Appeals, Fifth Circuit, in Swofford v. B & W, Incorporated, 336 F.2d 406, 409 (5th Cir. 1964), cert. denied, 379 U.S. 962, 85 S.Ct. 653, 13 L.Ed.2d 557 (1965):

“The right to a jury . . . is a basic and fundamental feature of our system. And when the discretion of the court is invoked under Rule 39(b), the court should grant a jury trial in the absence of strong and compelling reasons to the contrary. . . . ”

The state of the record before us does not reveal any reason, compelling or otherwise, that the trial court should not have allowed a trial by jury. Hence, there was no error in granting plaintiff’s motion.

Reviewing the record before us, with the attendant presumption of correctness to be accorded the jury’s verdict, the tendencies of the evidence reveal the following:

Plaintiff and defendant orally agreed that plaintiff would purchase an interest in a business establishment known as “Lee Roy’s Restaurant & Lounge.” Defendant owned this establishment. The purchase price was to be $50,000.

At the time of the agreement, the plaintiff paid to defendant $5,000. The instant lawsuit by the plaintiff was to recover the aforesaid $5,000.

The testimony of the plaintiff, with reasonable inferences, was to the effect that he was unable to contact the defendant regarding the details of the purchase. Specifically, he wanted to know exactly what he had purchased and the financial condition of the business. In other words, he stated there was never a completed contract. On the other hand, the defendant testified the contract was in fact completed.

Without detailing additional evidence, suffice it to say that we deem the evidence to be conflicting as to whether there was a contract or a breach of contract. It is the duty of the trier of fact to resolve that conflict. Ingram v. Brookbank, 45 Ala.App. 388, 231 So.2d 164 (1970). It is not our duty to substitute our judgment for that of the trier of fact. McPherson v. Everett, 277 Ala. 519, 172 So.2d 784 (1965).

Able and experienced counsel in brief alludes to an issue of “liquidated damages” versus “penalty.” We have carefully reviewed the record before us and the only manner in which this could be raised was from the trial court’s oral charge as it relates to the aforesaid subject. No pertinent objection to the oral charge was made by either party. Hence, no reversible error can be predicated on the charge. Rule 51, ARCP.

Additionally, defendant argues in his brief that certain amendments to the complaint should not have been allowed. We find no objection to such amendments and therefore perceive no error.

The case is due to be and is affirmed.

AFFIRMED.

BRADLEY, J., and PAUL, Retired Circuit Judge, concur.

      . We note that the evidence regarding the contract and the breach is minimal.