text:
    Francis R. PENROD and Roberta Penrod v. Hazel J. LAPERE and John R. Murray.
    77-343.
    Supreme Court of Alabama.
    March 2, 1979.

      Charles J. Kettler, Jr., Luverne, for appellants.
    Ben H. Lightfoot, Luverne, for appellees.
   TORBERT, Chief Justice.

This appeal is from a suit to set aside a ninety-nine-year lease and to restrain the lessees from doing certain acts. On October 1, 1976, appellants Francis and Roberta Penrod, husband and wife, executed a written lease of one acre of real property to appellees Hazel Lapere and John Murray. The property is located in Brantley, Alabama. Mrs. Lapere is the sister of Francis Penrod. Several years before, Mr. Penrod told Mrs. Lapere that she could select one acre out of the ninety he owned to retire on.

Sometime in 1975, Mrs. Lapere, while residing in Pompano Beach, Florida, called Mr. Penrod to determine if the property was still available; Mr. Penrod replied that it was available. Several telephone conversations ensued. During one such conversation, appellee Murray was introduced to Mr. Penrod. At the time, no explanation was given as to the relationship of Mrs. Lapere and John Murray. In reality, the parties were not married, although they were living together, and Murray had a wife and two children “up north somewhere.”

Subsequently, Lapere and Murray traveled to Brantley to examine the property. Appellees selected the acre they wanted and made arrangements to move a mobile home onto it. At this time, Francis Penrod told his sister that he would give her a lease on the property. Three attempts to lease the property were made. The last effort resulted in the alleged lease dated October 1, 1976. It was signed by Francis and Roberta Penrod as lessors and by Hazel La-pere and John Murray as lessees. The instrument was witnessed by Mr. Lightfoot and Mr. Nichols both of whom are attorneys. There is a conflict in the testimony as to when Francis Penrod and John Murray signed the instrument although it is uncontroverted that both parties did in fact sign. It appears from the record that John Murray, and possibly Francis Penrod, did not sign the lease in the presence of the witnesses, but signed at a later time after the witnesses had already affixed their signatures to the instrument attesting the execution of the lease.

The lease was of one acre of real property for ninety-nine years; the recited consideration was one dollar. The testimony is conflicting as to whether the dollar was ever paid. It is also disputed as to whether appellants were aware of the relationship between appellees prior to the execution of the lease.

The parties experienced various disagreements and disputes culminating in appellants being placed under a peace bond. Appellants then brought suit seeking cancellation of the lease. They asserted, as grounds for cancellation, failure of consideration, material misrepresentation of appellees’ marital status, and undue influence. Appellants also sought an order restraining appellees from engaging in any type of conduct inclined to harass, intimidate, threaten, defame, libel, slander, or interfere with the quiet peace and enjoyment of appellants. Appellees filed an answer and asserted a counterclaim for $30,000 for improvements to the property. Appellants amended their petition asserting as additional grounds for cancellation that the lease was not properly witnessed as required by law and is therefore a nullity; appellants also filed an answer to the counterclaim. Appellees then filed an amended answer alleging that the lease, if not valid, is an agreement to execute a lease and is specifically enforceable as such. Appellants then amended their petition claiming that appellees are not entitled to specific performance because the transaction was without consideration and was induced by fraud and undue influence. Appellees again amended their answer alleging that the consideration of one dollar had been paid — a fact which was denied in the original answer.

The trial court heard the evidence ore tenus and ruled that appellants were not entitled to cancellation of the lease, but were entitled to the injunctive relief sought. The trial court further ordered specific performance of the lease:

[T]he Court . . . is of the opinion that the petitioners are not entitled to have the purported lease dated January 30, 1976, cancelled and set aside, that they are, however, entitled to the injunc-tive relief prayed for; the Coart further finds that the instrument dated January 30, 1976 and signed by all of the parties has the effect of a lease agreement and that the respondents are entitled to specific performance of the lease agreement as prayed for in their counter-claim, it is, therefore,
ORDERED AND ADJUDGED by the Court that the cancellation prayed for by the petitioners of said lease agreement be and the same is hereby denied.
IT IS FURTHER ORDERED by the Court that the respondents are entitled to a valid lease on the property described in the lease agreement signed by all of the parties on January 30,1976, and that said lease agreement dated January 30, 1976, recorded in Deed Book 105, page 195, Probate Office, Crenshaw County, Alabama, is hereby declared to be a valid and binding lease on all of the parties who executed the same. [Emphasis added.]

By statute in Alabama, for a lease to be valid for a term longer than twenty years, the lease must be attested and recorded. Section 35-4-6 provides:

No leasehold estate can be created for a longer term than 99 years. Leases for more than 20 years shall be void for the excess over said period unless acknowledged or approved as required by law in conveyances of real estate and recorded within one year after execution in the office of the judge of probate in the county in which the property leased is situated.

§ 35-4-6, Ala.Code 1975.

Section 35-4-20 governing conveyances of land provides that “the execution of such conveyances must be attested by one witness.” The central question in this appeal, then, is whether the execution of the lease was properly witnessed as required by sections 35-4-6 and 35-4-20.

The word “execution,” when used in connection with instruments conveying title to real property, includes performance of all acts necessary to render the instrument valid or to carry it into effect including signing, sealing when necessary, and delivery. Illinois National Bank & Trust Co. v. Holmes, 311 Ill.App. 286, 35 N.E.2d 823, 825 (1941). In order for a lease to be effective, and properly executed, the written instrument must be signed by the lessor or lessors. 51C C.J.S. Landlord & Tenant § 217. Therefore, one of the requisites of execution, and an event which must be attested, is the signature of the lessor. The lessor may either sign in the presence of the witness, or, if he signs out of their presence, acknowledge his signature to the witness at the time he attests the execution of the lease. Cf. Reynolds v. Massey, 219 Ala. 265, 122 So. 29 (1929).

In the instant case, the evidence was conflicting as to whether Francis Penrod signed the lease in the presence of the witnesses. Roberta Penrod testified that she and Mrs. Lapere signed the lease in Mr. Lightfoot’s office where the instrument was attested. She testified that neither Francis Penrod nor John Murray was present. Francis Penrod testified that he was not present at Mr. Lightfoot’s office and signed the lease that night at Mrs. Lapere’s trailer. Mrs. Lapere, however, testified that Francis Penrod was at Mr. Lightfoot’s office and did sign the lease in the presence of the witnesses. She further testified that John Murray was not present and did not sign at that time.

It is not clear from the trial court’s order whether it included a finding that Francis Penrod did not sign in the presence of the witnesses. If he did not, then the lease was not properly attested as required by section 35-4 — 6 and, pursuant to such section, is valid only for a twenty-year term. Since the lease is valid for a twenty-year term and lessees are in possession, there is no basis for a decree of specific performance.

Furthermore, it is immaterial when John Murray signed the instrument since, generally, the signature of the lessee is not essential to the validity of the lease where, as here, the lessee accepts delivery and takes possession. 49 Am.Jur.2d Landlord & Tenant § 31. Since the signature of the lessee is not essential to the validity of the lease, it is not essential to execution and is not a fact which must be attested.

Therefore, if Francis Penrod signed the lease in the presence of the witnesses, then they did in fact witness his signature and a valid ninety-nine-year lease was created. However, if Penrod did not sign in the presence of the witnesses, but at a subsequent time, then by statute the lease is only valid for twenty years.

Accordingly, this case is reversed and remanded for further findings and entry of an order consistent with the views expressed herein.

REVERSED AND REMANDED.

MADDOX, JONES, SHORES and BEAT-TY, JJ., concur.

      . On November 7, 1977, the trial court entered an order granting appellees’ motion to correct a clerical mistake in the order listing the date of the lease as January 30, 1976, instead of October 1, 1976, the actual date.

      . Although the trial court’s order does not contain any findings of fact, apparently, as noted by appellants in brief, the court found that the lease was not properly attested as required by law and, though ineffectual as a lease, was an agreement to execute a lease capable of specific performance. Otherwise, specific performance seems inapplicable because the lease was executed and appellees were placed in possession.


source: Caselaw Access Project

author: MADDOX, Justice.

license: Public Domain

text:
    James HUGHES v. C. E. HUGHES, Alabama Power Company, a corporation, and United States Fidelity & Guaranty Company, an insurance corporation.
    77-381.
    Supreme Court of Alabama.
    March 2, 1979.

      John A. Taber, Greenville, for appellant.
    Alan C. Livingston, of Lee & Mclnish, Dothan, for appellees.
   MADDOX, Justice.

This is an appeal of the trial court’s judgment granting directed verdicts in favor of Alabama Power Company, and its Workmen’s Compensation carrier, United States Fidelity and Guaranty Company.

James Hughes was an employee of Daniel Construction Company (Daniel), which was building the Farley Nuclear Power Plant in Houston County. He was working on a scaffold when he slipped on debris scattered about the work area, and injured his back. He eventually had surgery to remove a ruptured disc.

Hughes claimed: (1) that the contract between Alabama Power and Daniel was worded in such a manner that Alabama Power was, in fact and in law, the prime contractor of the construction project and Daniel was a subcontractor; therefore, Alabama Power had a duty to provide him, as one of Daniel’s employees, with a safe place to work, the negligent breach of which caused his injury; and (2) that USF&G had undertaken to inspect the construction area and to provide safety engineering services, but that it had failed to inspect, report on, or render in a safe condition the lights or scaffold on which he was working and that he was injured as a result of that negligence.

Directed verdicts were granted to both Alabama Power and USF&G.

I

As previously indicated, Hughes claimed that Alabama Power was the prime contractor on the project, not just the owner. He argues, therefore, that the duty Alabama Power owed was the duty of providing the employees of its subcontractors a safe place to work.

The issue here then is whether Alabama Power and Daniel were in an owner-independent contractor relationship or in a prime contractor-subcontractor relationship.

This Court has recognized that:

“ ‘It is the reserved right of control rather than its actual exercise that furnishes the true test of whether the relation between the parties is that of an independent contractor or of employer and employee — -master and servant. Moore-Handley Hardware Co. v. Williams, 238 Ala. 189, 189 So. 757.’ Solmica of Gulf Coast, Inc. v. Braggs, 285 Ala. 396, 232 So.2d 638 (1970).” Hodges & Company v. Albrecht, 288 Ala. 281, 259 So.2d 829 (1972).

The question for the trial court was whether Alabama Power retained the right to direct the manner in which Daniel performed its construction work. Solmica of Gulf Coast, Inc. v. Braggs, 285 Ala. 396, 232 So.2d 638 (1970).

Hughes argues that he presented at least a scintilla of evidence that Alabama Power did, in fact retain the right to control Daniel. In order to determine whether a jury issue was made as to the relationship between the parties, we have examined the record, and we conclude that there was not a scintilla of evidence that Alabama Power exercised any authority or control over the work performed by Daniel. Hughes contends that the contract between Alabama Power and Daniel itself shows the retained right of control. We disagree. The contract terms do not show the existence of any relationship other than that of owner and independent contractor. This Court has often stated that when the terms of a contract are clear and unambiguous, it is incumbent upon the trial court to analyze and determine the force and effect of those terms, as a matter of law. Johnson-Rast & Hays, Inc. v. Cole, 294 Ala. 32, 310 So.2d 885 (1975); Metzger Bros., Inc. v. Friedman, 288 Ala. 386, 261 So.2d 398 (1971).

Alabama Power, as the owner of the premises, was charged with certain duties under the contract. These duties have been discussed recently in Chrysler Corporation v. Wells, 358 So.2d 426 (Ala.1978). Quoting the well-established rule, this Court stated:

“ ‘The owner of premises is not responsible to an independent contractor for injury from defects or dangers which the contractor knows of, or ought to know of. But if the defect or danger is hidden and known to the owner, and neither known to the contractor, nor such as he ought to know, it is the duty of the owner to warn the contractor, and if he does not do this he is liable for resultant injury. Crawford Johnson & Co. v. Duffner, 279 Ala. 678, 189 So.2d 474 .. . .’ (Emphasis supplied). ([Veal v. Phillips] 285 Ala. [655] at 656, 235 So.2d [799] at 802).”

Applying this test, we conclude that Hughes failed to provide a scintilla of evidence to show that Alabama Power breached a duty owed to him because the undisputed evidence is that Hughes was an employee of Daniel, who we have determined, under the evidence, was the prime contractor. Hughes was working upon scaffolding supplied and erected by Daniel and engaged in a project supervised by Daniel. It is clear from Hughes’ own testimony that he knew about the debris at his feet. It had been left there by the previous shift. The owner of premises owes no duty of care to the employees of an independent contractor with respect to conditions arising in the progress of the work on the contract. United States Cast Iron Pipe and Foundry Co. v. Fuller, 212 Ala. 177, 102 So. 25 (1924).

Hughes claims that his theory of recovery is supported by Alabama Power Co. v. Henderson, 342 So.2d 323 (Ala.1976). We do not agree. There, the evidence showed that Alabama Power, as owner of the premises, retained active control over the manner in which the work was to be performed by the independent contractor. The facts here are different. There is no evidence that Alabama Power exercised control over the performance of the work by Daniel in this case.

Having found that the plaintiff failed to present evidence establishing a duty owed by Alabama Power Company, we conclude that the trial court was correct in granting Alabama Power’s motion for a directed verdict.

II

USF&G, as the Workmen’s Compensation carrier for Daniel, had the right to inspect the construction site and facilities for hazardous conditions in an effort to reduce compensation claims. It is clear from the evidence that USF&G had made inspections on a regular monthly basis for several years prior to the subject accident. It also appears that the scaffold area was periodically inspected.

In his complaint, Hughes alleged that USF&G had undertaken to inspect the project and provide safety engineering services but that USF&G had “negligently failed to perform said safety engineering service properly, and that said defendant’s said employee or employees knew of the unsafe or dangerous condition of said scaffold and the dangerous conditions occasioned by non-sufficient light, and negligently failed to render said scaffold and lights upon which plaintiff was invited to work in a reasonably safe condition.”

This case is governed by the most recent pronouncements of this Court on the issue of negligent inspection by Workmen’s Compensation carriers, United States Fidelity & Guaranty v. Jones, 356 So.2d 596 (Ala.1977).

The issue is whether Hughes presented any evidence at trial that USF&G had negligently inspected the construction project.

In a suit of this type the complainant must prove that the defendant had (1) undertaken to inspect the construction site, particularly the area in which the injury-causing hazard is located, (2) performed such inspection negligently, and (3) that such negligence was the proximate cause of his injuries.

It is uncontradicted, as stated above, that USF&G conducted periodic inspections of the area in which the accident occurred. The first question then is whether the appellant presented any evidence at trial that USF&G had inspected the construction site negligently.

The appellant testified that he slipped upon debris scattered about the scaffold area and that he was aware that it was underfoot. USF&G’s periodic reports which are included in the record before us show that a “housekeeping” problem existed and that the seriousness of the problem varied from report period to report period. Rebar and piping, which caused appellant’s fall, were specifically mentioned in some reports. Copies of these reports were forwarded to the insured, Daniel.

In Jones, supra, this Court stated: “The law, simply stated, is that one who volunteers to act, though under no duty to do so, is thereafter charged with the duty of acting with due care.” Although it was not required to, USF&G undertook to make inspections of the Farley Nuclear Plant construction site and to report hazardous conditions to the management. The duty it undertook was to inspect and report. There is no evidence that USF&G ever had or undertook a duty to correct the safety hazards which it discovered. This Court has never imposed such a duty.

USF&G discovered and reported the very hazard which resulted in the Hughes fall. We are of the opinion that Hughes failed to introduce even a scintilla of evidence that he was injured as a result of USF&G’s negligent inspection; therefore, the trial court did not err in granting a directed verdict in favor of USF&G.

AFFIRMED.

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

      . The accident here occurred before the adoption of Act No. 86, 4th Ex.Sess.1975, p. 2729; codified as § 25-5-11, Code 1975; which purports to grant immunity to Workmen’s Compensation carriers. We express no opinion here, of course, on the effect of this statute. It is inapplicable here.


author: EMBRY, Justice.

text:
    Isaac BRACY d/b/a Bracy Construction Company et al., v. SIPPIAL ELECTRIC COMPANY, INC.
    77-637.
    Supreme Court of Alabama.
    March 2, 1979.
    Charles P. Miller, Montgomery, for appellants.
    Rick A. Williams, Thomas T. Gallion, III, Montgomery, for appellee.
   EMBRY, Justice.

This appeal is dismissed on the authority of Thames v. Gunter-Dunn, Inc., 365 So.2d 1216 (Ala.1979).

APPEAL DISMISSED.

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


author: SHORES, Justice.

text:
    Mozelle SHIRLEY, as Admr’x., etc. v. GETTY OIL COMPANY et al.
    77-721.
    Supreme Court of Alabama.
    March 2, 1979.

      Alva C. Caine, Birmingham, and Nicholas S. Hare, Monroeville, for appellant.
    J. Milton Coxwell, Jr. of Coxwell & Cox-well, Monroeville, for E. L. Smith.
   SHORES, Justice.

Alvin C. Shirley died in a gas fire on October 13, 1975, at a scrubber station belonging to the Conecuh-Monroe Counties Gas District. On April 29, 1976, his admin-istratrix, Mozelle Shirley, brought a wrongful death action against the Getty Oil Company and other fictitious parties described as “. . . the resident of the State of Alabama being that person, firm or corporation who designed and maintained the Conecuh-Monroe Counties Gas System . .” She later amended this complaint to substitute Control, Inc. for one of the fictitious parties.

On November 29, 1976, the plaintiff took E. L. Smith’s deposition (Smith was the manager of the facility and a co-employee of the decedent). His testimony indicated that William E. Bright, William E. Bright, Inc. and Peerless Manufacturing Company had either contributed to the design of the scrubber station or manufactured equipment used in the station. Concerning his part in the management and design of the scrubber station, Smith testified:

“Q All right, sir. As manager, what were your duties?
“A Well, as the Manager, it is my duty to see that the system runs, and see that it operates in an efficient manner, and to direct the activities of the people who are immediately under me, like Mr. Parker, and the cashiers.
“Q Well, did you have anything to do with the responsibility for the design and engineering of this system?
“A Yes, sir.
“Q Other than just say — look, I want to order a new house or something?
“A My capacity as the Manager, is to discuss with Mr. Bright what I need.
“Q All right.
“A And, it is his function as an engineer to provide me with that. And, it is my function as the Manager to see that it conforms to the building — I mean, to the Codes like we have to operate under, pressure — operating pressures have to be a certain — the wall thickness of the pipe has to meet certain requirements, and I checked all of those to be sure it would conform to that.
“In addition to that, I called the Peerless people direct and talked to them about this, whether it would remove certain liquids — this type of scrubber. And, I explained to them in depth what we were going to do, and this is the way we put the project together, and the way the project was built.
“Q All right. Who prepared the final plans and specifications for the system? “A The plans and specifications — this was prepared and this was the final drawing (indicating) by Control Incorporated, and then I approved it.”

Following this deposition, Shirley again amended her complaint to substitute for fictitious parties the names of William E. Bright, William E. Bright, Inc. and Peerless Manufacturing Company.

On May 5, 1978, Grantham v. Denke, 359 So.2d 785 (Ala.1978), was decided by this court, declaring unconstitutional Title 26, § 312, Code of Alabama 1940, as amended by Act No. 86, 4th Ex.Sess., § 10, page 2748, Acts of Alabama 1975. Shortly thereafter, Smith was again deposed. On May 11, 1978, Shirley filed a motion to amend her complaint to add Smith as an additional defendant.

Following argument on the motion, the trial court entered the following order:

“ORDER DENYING MOTION TO AMEND
“This matter comes on to be heard on the motion of the Plaintiff, filed herein on the 12th day of May, 1978, seeking to amend the complaint in this cause to add as a party defendant one, E. L. Smith, and the said E. L. Smith having appeared and made an oral motion to strike the aforesaid motion to amend, and the Court having considered the arguments of counsel for the Plaintiff and the said E. L. Smith, together with the various depositions on file in the cause, the Court makes the following findings:
“That the name of the said E. L. Smith was never unknown to the Plaintiff; that as early as the 29th day of November, 1976, by virtue of the deposition of the said E. L. Smith, Plaintiff had knowledge of the involvement of the said Smith in the activity complained of in the complaint; that the institution of a suit against Smith on the 12th day of May, 1978, for the acts complained of in the complaint, would be affirmatively barred by all applicable Statutes of Limitation; that the provisions of Title 26, § 312 of the Code of Alabama did not preclude Plaintiff from making Smith a party Defendant to this cause at an earlier date, in that the statute, being unconstitutional, is void as a matter of law from its inception; that Plaintiff’s motion seeking to add Smith as a party Defendant is not timely made and that the allowance of the amendment would be manifestly prejudicial to the ability of the said E. L. Smith to conduct his defense in the cause, especially in view of the fact that Plaintiff’s motion comes on to be considered when the cause is pending on the current trial docket.
“Based upon the foregoing findings, the Court is of the opinion that Plaintiff’s motion seeking to amend the complaint so as to add E. L. Smith as a party defendant is without merit and is due to be denied, and it is therefore
“ORDERED, ADJUDGED AND DECREED that the said motion to amend be, and hereby is overruled and denied.
“Done at Monroeville this 1st day of June, 1978.
/s/ R. E. L. Key
CIRCUIT JUDGE”

The plaintiff then filed a motion for final judgment under Rule 54(b), ARCP. The trial court granted this motion and the plaintiff appealed. We affirm.

The sole issue presented is whether the trial court erred in refusing to allow the amendment adding Smith as a party defendant more than two years after the death of Shirley. The plaintiff advances two theories in support of her argument that the amendment should have been allowed. First, she says adding Smith as a defendant was allowable under ARCP 9(h) as a substitute for a fictitious party. That rule permits substitution:

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

We held in Browning v. City of Gadsden, 359 So.2d 361, 364, (Ala.1978), that where the plaintiff knew the identity of the party she later sought to substitute for a fictitious party but was unaware of the factual basis giving rise to a claim for relief against that party, this lack of knowledge “. was ‘[ignorance] of the name of the opposing party’ within the meaning of Rule 9(h) at the time of the filing of the original complaint . . . .”

In the instant case, the plaintiff took Smith’s deposition well in advance of the expiration of the two-year period for commencement of her action. This deposition was before the trial court when it considered the plaintiff’s motion to substitute Smith for a fictitious party. Smith’s deposition clearly demonstrates that he revealed sufficient facts from which Shirley might have decided to bring a claim for relief against him. Because Shirley knew Smith’s identity and had sufficient factual basis to give rise to the action against him, she may not now claim to have been “ignorant of the name of [the] opposing party” within the meaning of Rule 9(h). Browning v. City of Gadsden, supra; Hinton v. Hobbs, 349 So.2d 28 (Ala.1977).

Shirley also argues that substitution of the party’s real name for a fictitious party should be allowed in those cases in which the law did not provide a claim for relief against the defendant at the time the action was commenced but a later change in the law, while the suit was pending, provided the claim for relief.

Some California cases support the plaintiff’s argument, but we need not decide whether we would adopt that rule in a different context. Grantham v. Denke, supra, held that the act immunizing co-employees from liability was unconstitutional. The law was not changed in the sense claimed by the plaintiff. If the act is unconstitutional, it was void from the beginning. The plaintiff here could have challenged its constitutionality as did the plaintiff in Grantham. This she did not do. Instead, more than two years after her husband’s death she seeks to bring her claim relying on that decision. Nothing in that case suggests that claims not timely filed may be entertained against co-employees.

Finally, the plaintiff argues that because her action against Smith was statutorily prohibited at the time it accrued, the period from the date of death and the rendering of the decision in Grantham, supra, should be disregarded. She argues that § 6-2-12, Code of Alabama 1975, supports her contention. That section provides:

“When the commencement of an action is stayed by injunction or statutory prohibition, the time of the continuance of the injunction or prohibition is not computed as a part of the limitation time.”

The action here is a wrongful death action. Its timeliness is not controlled by a statute of limitations but, rather, by the two-year period contained within the provision creating the right of recovery. We need not decide whether § 6 — 2—12 would toll the statute of limitation on an action controlled by § 25 — 5—11(a), Code of Alabama 1975, since it has no effect on the time period for commencement of a wrongful death action under § 6-5-410, Code of Alabama 1975. Nicholson v. Lockwood Greene Engineers, Inc., 278 Ala. 497, 179 So.2d 76 (1965); Larry v. Taylor, 227 Ala. 90, 149 So. 104 (1933).

The judgment appealed from is affirmed.

AFFIRMED.

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


author: MADDOX, Justice. MADDOX, Justice.

text:
    McKESSON ROBBINS, A Division of Foremost-McKesson, Inc. v. BRUNO’S, INC., d/b/a Big B Discount Store and First Alabama Bank of Birmingham.
    77-391.
    Supreme Court of Alabama.
    Jan. 26, 1979.
    Rehearing Denied March 2, 1979.
    W. B. Hairston of Engel, Hairston, Moses & Johanson, Leonard M. Schwartz, Birmingham, for appellant.
    Thomas H. Brown of Sirote, Permutt, Friend, Friedman, Held & Apolinsky, Birmingham, for appellee, Bruno’s, Inc., d/b/a Big B Discount Store.
    Joseph W. Mathews, Jr., Birmingham, for appellee, First Alabama Bank of Birmingham.
   MADDOX, Justice.

This case comes upon the pleadings. The substance of the allegations in the pleadings, in narrative and conclusionary form, are as follows:

Sav-On Drugs operated a drugstore in Clanton, Alabama. It owed First Alabama Bank of Birmingham a substantial debt for a loan of money which was personally guaranteed by its president, Donald R. Dennis. Dennis had obligations to First Alabama other than this guaranty. Except for the personal guarantee, these debts were not secured.

At the request of First Alabama Bank, Sav-On Drugs sold all, or a major portion of, its inventory to Bruno’s, Inc. d/b/a Big B Discount Store for $82,500.00. The proceeds from this sale were by endorsement, paid to the First Alabama Bank in the form received. These proceeds were applied by the bank to the debts due the bank by the Sav-On Drugs and to the debts due the bank by Donald R. Dennis.

Prior to the sale of the inventory, Sav-On Drugs did not give Bruno’s a list of the names and addresses of its creditors.

Prior to the sale, Bruno’s did not cause a notice of the sale to be sent to the creditors of Sav-On Drugs.

At the time of the transfer, McKesson Robbins was a creditor of Sav-On Drugs, having an obligation of $11,260.44 due by account for the sale and purchase of inventory.

The trial judge granted a motion to dismiss by the defendants. The record does not show that the trial judge considered matters outside the motion in dismissing the cause. He entered a Rule 54(b) judgment. Plaintiff appealed.

Plaintiff McKesson Robbins claims these questions are presented:

(1) Does the complaint as last amended state a cause of action against Bruno’s Inc., d/b/a Big B Discount?

(2) Does the complaint, as last amended, state a cause of action against First Alabama Bank of Birmingham?

(3) Where there is a bulk transfer of inventory, does the creditor of the transfer- or have any action against the transferee where the transferee has failed to comply with the provisions of Article 6 of the UCC of Alabama on Bulk Transfers (§ 7-6-101 through 7-6-111, Code 1975)?

Plaintiff's main argument is that the trial judge considered only the allegations of the complaint, as amended, and the motions to dismiss, and did not consider anything outside the pleadings, and that its complaint, as amended, alleges facts that give rise to the conclusion that the appellees, along with those defendants who were not dismissed as defendants, participated in a scheme, artifice or device to hinder or delay the appellant in the collection of its debt by a secret conversion of Sav-On Drugs’ assets into proceeds that were placed beyond the reach of the ordinary processes of law.

Appellees claim that the complaint was due to be dismissed because it failed to allege fraud, much less with particularity, and that there was a failure to state a claim for relief for damages for violation of the Commercial Code’s Bulk Sale requirement.

We reverse and remand.

Rule 8 provides that all pleadings shall be so construed as to do substantial justice. We conclude that plaintiff, McKesson-Rob-bins’ allegations are “more than bare bones pleadings. The meat thereon more than satisfies Rule 8.” Brunswick Corp. v. Vineberg, 370 F.2d 605 (5 Cir., 1967), at page 610; Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957).

REVERSED AND REMANDED.

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

ON REHEARING

MADDOX, Justice.

On application for rehearing, First Alabama Bank contends that the original opinion claims the bank violated the Bulk Sales Act. The opinion does nothing of the kind. The holding of the original opinion is quite simple.

A complaint which alleges, in substance, that a party or parties “participated in a scheme, artifice or device to hinder or delay [a creditor] in the collection of a debt,” is more than “bare bones pleading.” The trial judge was faced with a motion to dismiss which alleges (1) that the complaint fails to state a claim and (2) that the complaint does not allege fraud with particularity. He considered nothing outside the pleading; therefore, he should not have dismissed the complaint.

The original opinion deals with a question of law relative to pleading, not liability. We expressed no opinion on whether the plaintiff could or could not succeed on its complaint, or at what stage the action might be correctly terminated, only that the plaintiff, under our new rules of procedure, should not have been thrown out of court by a mere motion to dismiss its complaint.

The original opinion is extended and the application for rehearing is denied.

OPINION EXTENDED; APPLICATION FOR REHEARING DENIED.

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


text:
    Theresa KANE v. SOUTH CENTRAL BELL TELEPHONE COMPANY, INC., a corporation, and H. M. Dawson, et al.
    77-394.
    Supreme Court of Alabama.
    Jan. 26, 1979.
    Rehearing Denied March 2, 1979.
    Edward J. Kirst, Birmingham, for appellant.
    John B. Tally, Jr., Richard F. Browne, Birmingham, for appellee, South Central Bell Telephone Co.
   MADDOX, Justice.

Does the gradual inhalation of paint fumes constitute an “accident” as that word is used in the Workmen’s Compensation Act? We answer in the affirmative, and affirm the trial court’s grant of summary judgment in favor of the defendant employer on this aspect of the employee’s claim.

Appellant, Theresa Kane, had been an employee of the Bell System for several years, and at the time of her alleged injury was working in Birmingham. In February, 1976, she was transferred into a room which was in the process of being renovated. She claimed that filing cabinets located nearby were being painted in the evening while she was not at work, and that her work area had poor ventilation, causing fumes from the paint to collect and remain within the room. She contends that the fumes caused her discomfort and pain, but when she asked to be relocated, she was told to remain at her location. She alleged that she became ill and had to be driven home, that she received treatment by a physician for an acute sinus infection, and was confined to her bed. Several weeks later, she claimed that she experienced serious chest pains and was informed by a specialist that she had suffered a heart attack. She remained confined to the hospital for three weeks, and she claimed that while she was there, she was harassed by personnel of South Central Bell.

In her complaint against Bell and her supervisor, she asserted five common law causes of action. She was allowed to amend her complaint to include a claim under workmen’s compensation. The defendants moved for summary judgment which the trial judge granted, allowing only the workmen’s compensation claim to stand. The trial court made what we have accepted as a determination under Rule 54(b) that there was no just reason for delay and entered a final judgment on Kane’s claim against her employer that she was injured because of the inhalation of paint fumes. This appeal followed. We affirm.

The sole issue presented by the parties for our review is whether the absorption of paint fumes over a two-day period constitutes an “accident” as that term is used in the Alabama Workmen’s Compensation Act, Sections 25-5-1(8), -31 Code (1975), in which case the Act provides the exclusive remedy for appellant’s claim.

Section 25-5-31 provides:
“RIGHT OF ACTION FOR DAMAGES FOR INJURIES OR DEATH OF EMPLOYEE.
“When personal injury or death is caused to an employee by an accident arising out of and in the course of his employment, of which injury the actual or lawfully imputed negligence of the employer is the natural and proximate cause, he, or in case of death, his personal representative, for the exclusive benefit of the surviving spouse and next of kin, shall receive compensation by way of damages therefor from the employer; provided, that the injury or death was not caused by the wilful misconduct of the employee or was not due to misconduct on his part, as defined in section 25-5-51. . . .” (Emphasis added),

and the definitional portion of the Act, section 25-5-1(8), provides:

“ACCIDENT. Such term, as used in the phrases ‘personal injuries due to accident’ or ‘injuries or death caused by accident’ shall, unless a different meaning is clearly indicated by the context, be construed to mean an unexpected or unforeseen event, happening suddenly and violently, with or without human fault, and producing at the time injury to the physical structure of the body or damage to an artificial member of the body by accidental means.”

The employee asks us to find that her injuries were not caused by an “accident,” because she insists they were incurred over an extended period of time and therefore they cannot be covered by the Act which is intended to cover only injuries “happening suddenly and violently.” We disagree.

The “suddenly and violently” language has been in the Alabama Workmen’s Compensation Act since its inception, Section 7596, Code of Alabama (1923). The appellant relies on Gentry v. Swann Chemical Co., 234 Ala. 313, 174 So. 530 (1937), where this Court strictly applied these words. We are of the opinion, however, that Gentry is distinguishable on its facts since in that case the plaintiff’s contact with the injury causing substance was continual over a period of six months. The facts of this case, on the other hand, bring it within the rule as stated in 1A, A. Larson, The Law of Workmen’s Compensation, § 39.20 (1973):

“A review of the cases cited will show virtual agreement [that injury was caused by an accident] when the cause of injury is several hours of excessive inhalation of carbon monoxide or other gas, or a few days’ exposure to harmful dust, fumes or acids.”

In City of Tuscaloosa v. Howard, 55 Ala. App. 701, 318 So.2d 729 (1975), the Court of Civil Appeals reviewed the application of section 25-5-1(8) by the appellate courts of this state:

“. . . Sec. 262 [§ 25-5-1] of the Act defines ‘accident’ as ‘an unexpected or unforeseen event, happening suddenly and violently, . . . producing at the time injury to the physical structure of the body by accidental means.’ The cases applying this definition are legion in this state and others. Many law review articles and treatises have been written concerning its meaning and application. Its application has been particularly difficult in heart attack cases. The results of its application have been varied and often difficult to distinguish on the facts presented. For many years the appellate courts of this state held that ‘accident’ related to the event causing the injury rather than the result, and that such event must happen suddenly and violently, be of an unusual nature and foreign to the usual occurrences on the job. An example of such interpretation is the case of Gentry v. Swann Chemical Co., 234 Ala. 313, 174 So. 530. Beginning with the case of Gulf States Steel Co. v. Christison, 228 Ala. 622, 154 So. 565, and finding full expression in the case of Pow v. Southern Const. Co., 235 Ala. 580, 180 So. 288, our courts came to the conclusion that if the job caused the injury it was an accident under the intent of the Act. The requirement that there must be shown a violent and unusual event which causes the injury was replaced by the principle that there was an accident if the result was unexpected and unforeseen and it was caused by the job. We have arrived at the point of determining if the job caused the injury or death. Southern Cotton Oil Co. v. Wynn, 266 Ala. 327, 96 So.2d 159; Reynolds Metals Co. v. Gray, [278 Ala. 309, 178 So.2d 87] supra; B. F. Goodrich Co. v. Martin, 47 Ala. App. 244, 253 So.2d 37.” (Emphasis added).

In Young v. City of Huntsville, 342 So.2d 918 (Ala.Civ.App.1976) that court restated the test:

“If in the performance of the duties for which he is employed an employee is exposed to a danger or risk materially in excess of that to which people not so employed are exposed, and an injury occurs, such injury may legally be determined to have arisen from his employment and be an accident under the statute. . . . ” 55 Ala.App. at 705, 318 So.2d at 732.

This Court has stated that the Workmen’s Compensation Act must be liberally construed in favor of the workman, Riley v. Perkins, 282 Ala. 629, 213 So.2d 796 (1968), and this rule of construction applies in all cases, even when asserted by a defendant as a limitation upon his liability. In Carraway Methodist Hospital v. Pitts, 256 Ala. 665, 57 So.2d 96 (1952), we spoke to this issue:

“. . . practically all. courts are agreed that there should be accorded to the workmen’s compensation law a broad and liberal construction. But it is also agreed that this law does not mean one thing when it is to the advantage of an employee so to maintain, and something else when an employer invokes the protection of the law in his favor.”

We hold the employee’s injuries were accidental within the meaning of Sections 25-5 — 1(8), and -31 and therefore her exclusive remedy is under the Workmen’s Compensation Act. Slagle v. Reynolds Metal Co., 344 So.2d 1216 (Ala.1977). The circuit court’s grant of summary judgment in favor of South Central Bell is affirmed.

AFFIRMED.

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

ON REHEARING

MADDOX, Justice.

On original submission, appellant Kane stated the issues presented as follows:

“Whether the continuous and gradual absorption of paint fumes by the appellant, Theresa Kane, constitutes an accident for the purposes of Alabama Workmen’s Compensation Act. Gentry v. Swann Chemical Co., 234 Alabama 313, 174 So. 530 (1937). Ala.Code § 25-5-1(8) (1975).”

Our original opinion addressed that sole issue. On application for rehearing, appellant contends that the grant of summary judgment erroneously foreclosed her claim that telephone company employees harassed her while at work and while she was hospitalized. Without deciding whether such a claim was available to her, or whether she presented a scintilla of evidence in opposition to the motion for summary judgment to make a triable issue of fact on the claim, we determine that she cannot now raise here for the first time this point which she failed to raise before submission. 2A Ala. Dig., Appeal and Error, <®=» No. 832(4).

■ OPINION EXTENDED. APPLICATION FOR REHEARING OVERRULED.

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


author: BEATTY, Justice.

text:
    CAVALIER INSURANCE CORPORATION, a corporation v. David C. FAULK.
    77-595.
    Supreme Court of Alabama.
    Jan. 26, 1979.
    Rehearing Denied March 2, 1979.
    Robert C. Black of Hill, Hill, Carter, Franco, Cole & Black, Montgomery, for appellant.
    Tom Radney of Radney, Radney & Barnes, Alexander City, for appellee.
   BEATTY, Justice.

This is an appeal by defendant, Cavalier Insurance Corporation, from a declaratory judgment entered on the strength of a jury verdict for the plaintiff, David C. Faulk. We reverse and remand.

The plaintiff, David Faulk, brought this action praying for a declaration that Cavalier Insurance Corporation [hereinafter Cavalier] had afforded him liability coverage prior to his involvement in an automobile collision in which two persons were killed. A jury trial was demanded by the plaintiff. Following that trial a verdict was returned in the plaintiff’s favor. Cavalier’s motion for a judgment N.O.V. or alternatively a new trial was denied. This appeal followed.

The critical issue on appeal is whether or not the trial court erred to reversal in overruling the defendant’s motion for new trial. This motion was based in pertinent part upon the failure of two jurors to disclose on voir dire the fact that previously they had been represented by the law firm in which the plaintiff’s attorney was a partner when asked such a question by the attorneys for the defendant:

Defendant moves the Court to set aside the verdict and judgment entered in the above styled action on, to-wit: the 23rd day of January, 1978, . . . and grant defendant a new trial on the following grounds:
5. The defendant was not afforded an unbiased or unprejudicial jury in that when the jury venire was asked the question by the counsel for the defendant, viz, ‘Has any member of the jury panel ever been represented in any matter by Mr. Tom Radney, Mr. Larkin Radney, or Mr. Scears Barnes,’ Rudolph Scroggins and wife, Edna R. Scroggins failed to acknowledge or inform counsel for the defendant that on March 6, 1975, they had both filed suit against Casualty Reciprocal Exchange Insurance Company with the law firm of Radney and Radney representing them in that said cause; that said lawsuit is attached hereto and made a part of this said motion as Exhibit A. Defendant contends that the present case is identical to the lawsuit filed by Rudolph Scroggins and Edna Scroggins in that both lawsuits are direct suits against a defendant insurance company and in both suits, the same law firm, to-wit: Radney and Radney, represented the plaintiff’s side. The defendant contends that it has a right to examine jurors as to bias or prejudice which would affect the trial of the case and upon such examination, the defendant is entitled to truthful answers from said jurors and that a failure to answer truthfully entitles the defendant in this cause to a new trial.

An affidavit filed by defense attorney, Mr. Larry Morris, stated that not until after the case had concluded did he discover the discrepancy. Exhibits filed on the motion show that on March 6, 1975 Mr. and Mrs. Scroggins, by and through their attorney, Mr. Larkin Radney of the law firm Radney & Radney, filed suit against Casualty Reciprocal Insurance Company. The suit was apparently settled because on August 12, 1975 an order was entered by the circuit judge dismissing the suit upon agreement.

In Martin v. Mansell, 357 So.2d 964 (Ala.1978) this Court followed an earlier decision which set forth the scope of review in such an instance:

In Freeman v. Hall, 286 Ala. 161, 166-67, 238 So.2d 330, 335-36 (1970), this court stated the following:
We hold that the proper inquiry for the trial court on motion for new trial, grounded on allegedly improper responses or lack of responses by prospective jurors on voir dire, is whether this has resulted in probable prejudice to the movant. .
[W]e will review the trial court’s ruling on motion for new trial predicated on jurors’ improper answers to (or failure to answer) questions propounded on voir dire only for abuse of discretion in its determination as to probable prejudice.

In Martin, supra we set out a few of the factors which a trial court should consider in determining whether probable prejudice resulted, and which this Court must necessarily consider in determining whether an abuse of discretion occurred:

Although the factors . . must necessarily vary from case to case some of the factors which other courts have considered pertinent are: temporal remoteness of the matter inquired about, the ambiguity of the question propounded, the prospective juror’s inadvertence or willfulness in falsifying or failing to answer, the failure of the juror to recollect, and the materiality of' the matter inquired about.

We believe a review of these factors shows that unlike Martin, supra, the trial court in this case did indeed abuse its discretion in not granting defendants’ motion for new trial.

In Martin, supra, substantially the same question was asked by counsel on voir dire, that question being “whether any of the defense attorneys had ever been retained by a member of the venire or by a member of his or her family.” Like the present case on motion for a new trial this question was found to have been answered incorrectly. In Martin, a juror had failed to respond to the question, but on motion for a new trial later admitted that her husband had been represented by one of the defense attorneys in a personal injury action seven years earlier. In the present case, however, not one, but two jurors, husband and wife, had been represented by a partner in the firm of Radney & Radney, now representing the plaintiff, David Faulk, not seven but a little over two years before. Furthermore, unlike Martin, supra, in this case the jurors had been represented by plaintiff’s law firm in the same kind of action, one against an insurance company which refused to pay for a loss. That prejudice to the defendant could be found in this case by the failure of one juror to answer is apparent; that probable prejudice to defendant occurred when two jurors failed to answer in these circumstances is even clearer. Moreover, no attempt was made below by the plaintiffs themselves to show that the jurors did not recollect, or inadvertently answered falsely. Therefore we hold that the trial court abused its discretion in its determination on the issue of probable bias or prejudice and in not granting a new trial under Rule 59, ARCP.

While we remonstrate that counsel and parties should be given true and honest answers from the venire in order that they may properly exercise their discretion in the use of peremptory strikes, Martin v. Mansell, supra; Sanders v. Scarvey, 284 Ala. 215, 224 So.2d 247 (1969); Morris v. Zac Smith Stationery Company, 274 Ala. 467, 149 So.2d 810 (1963), we must caution that not every failure of a venireman to respond correctly to a question, regardless of the excuse or circumstances, will entitle one to a new trial or an automatic reversal for the denial of one. See e. g., Martin v. Mansell, supra; Freeman v. Hall, supra. However, where the prejudice to defendant is probable we must in fairness reverse the case and remand it for a proper trial.

REVERSED AND REMANDED.

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


author: PER CURIAM.

text:
    In re Clarence SANDERS v. BLUE CROSS-BLUE SHIELD OF ALABAMA, INC. Ex parte BLUE CROSS-BLUE SHIELD OF ALABAMA, INC.
    77-508.
    Supreme Court of Alabama.
    Feb. 23, 1979.

      J. Edward Thornton, Mobile, for petitioner.
    Joseph P. Givhan, Jr., Mobile, for respondent, Clarence Sanders.
   PER CURIAM.

The original opinion is withdrawn and the following is substituted therefor. In the original opinion, the Court stated that “[w]here a motion for relief under Rule 60, ARCP is granted or denied, the action of the trial court is appealable.” That statement is correct as it applies to the facts in this case, however, we deem it appropriate to clarify the standard for determining the appealability of Rule 60 orders.

In this case, Blue Cross-Blue Shield of Alabama, Inc. (hereinafter Blue Cross) petitioned the Court for a writ of mandamus ordering Circuit Court Judge Braxton L. Kittrell, Jr. to strike and nullify his order granting Clarence Sanders relief from a final judgment under Rule 60, ARCP.

Clarence Sanders had previously filed a suit against Blue Cross in the Circuit Court of Mobile County. That action was dismissed on October 25, 1977. Subsequently, Sanders- filed another action against Blue Cross in the District Court of Mobile County seeking $5,000 for breach of an insurance contract. Blue Cross raised the defense of res judicata based on the dismissal of the Circuit Court action. The record does not indicate that the District Court has ever ruled on this defense.

On March 3, 1978, Sanders moved that the Circuit Court grant him relief from the order of dismissal pursuant to Rule 60, ARCP. Sanders asserted that the original order of dismissal was “inadvertently worded.”

On May 1, 1978, the Circuit Court of Mobile County, Kittrell, J., granted the requested relief. The order of the court provided in pertinent part:

• “[T]he Court being satisfied that its said order of October 25, 1977, was intended merely to dismiss the Plaintiff’s tort claims and being further satisfied that no contractual claims were presented against the Defendant in this action, it is therefore
Ordered, Adjudged and Decreed that the plaintiff herein be and hereby is granted relief from this Court’s order of October 25, 1977, to the extent and only to the extent that the Plaintiff herein may file actions in contract against the Defendant herein in any court of competent jurisdiction free from any defense based upon res judicata by virtue of this Court’s order of October 25, 1977.”

It is this order which the petitioner seeks to have nullified in this mandamus proceeding. This order granting relief under Rule 60, ARCP, when tested by usual principles of finality is sufficient to support an appeal. 7 Moore’s Federal Practice, ¶ 60.30[3] at 431 (2d ed. 1978). An order granting or denying Rule 60 relief presents for review only the correctness of the trial court’s order. Personnel Bd. for Mobile Cty. v. Bronstein, 354 So.2d 8 (Ala.Civ.App., 1977).

Mandamus will not lie to review this decision of the circuit court. Alcoholic Beverage Control Bd. v. Taylor, 339 So.2d 66 (Ala., 1976); Burks v. Zeanah, 54 Ala.App. 55, 304 So.2d 610 (Ala.Civ.App., 1974).

PETITION DENIED.

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


author: PER CURIAM. JONES, Justice

text:
    Thomas A. KING, Jr. v. Frank SIKORA and Carolyn Sikora.
    77-531.
    Supreme Court of Alabama.
    March 2, 1979.
    Audrey L. Roberts, Huntsville, for appellant.
    George A. Moore, Huntsville, for appel-lees.
   PER CURIAM.

In December, 1975, Thomas A. King, as seller, and Frank and Carolyn Sikora, as purchasers, executed a sales contract for the purchase of a dwelling in Huntsville, whereby the Sikoras were to have possession of the dwelling but were not to receive a deed of conveyance until the total purchase price was paid. On August 2, 1977, King wrote a letter to the Sikoras purporting to terminate the contract for failure to make timely payments. The letter also gave a 10-day notice to vacate the premises.

On August 22, 1977, King filed an unlawful detainer action in the District Court of Madison County to which Frank Sikora filed a counteraffidavit. On September 2, the District Court trial resulted in a judgment in favor of King for possession of the house and Sikora timely filed notice of appeal, demanding a trial by jury. King’s motion for an order requiring Sikora to post a supersedeas bond was denied on October 20, 1977. Pending appeal, the Sikoras vacated the house on September 16, 1977.

On December 14, 1977, a pre-trial order was entered in the circuit court setting out the pleadings as amended and the contentions of the parties. The Plaintiff’s claim and the Defendants’ counterclaim were each based on breach of contract. Additionally, the Sikoras’ counterclaim sought a declaration that the lease-sale contract was in full force and effect and had not been violated by the Defendants. The jury found in favor of the Sikoras on both aspects of their counterclaim, assessing damages against King in the sum of $1300 and finding that the contract remained in full force and effect.

From the order overruling his motion for a new trial, King appeals, challenging the trial Court’s ruling in permitting, over Appellant’s objection, evidence of the rental value of other property occupied by the Sikoras upon their abandonment of the subject property. The threshold question, then, is whether, under the pleadings as merged into the pre-trial order, the trial Court erred in allowing, over King’s objection, proof of damages incurred in vacating the subject property pending the appeal of the case from the District Court to the Circuit Court?

We answer, “Yes.” We hold that, because the Sikoras were under no legal compulsion to move either by the conduct of King or by virtue of the District Court judgment, evidence of expenses incident to the Sikoras’ vacation of the property was inadmissible. We affirm as to that portion of the judgment which confirms the validity of the contract and thus restores possession of the property to the Sikoras; we reverse as to the money judgment; and we render the cause.

In reply to King’s motion to compel Sikora to post a supersedeas bond (as a requisite to staying the judgment pending appeal), the trial Court relied upon ARCP 62(dc) and denied the motion. Having failed in his motion, King took no steps to execute the District Court judgment. The Sikoras legally enjoyed the protection of Rule 62 which had the effect of automatically staying the District Court judgment, as a matter of law, upon the filing of the notice of appeal. To impose upon King those expenses incident to the Sikoras’ voluntary act of moving from the property is legally impermissible absent an adjudication of malicious prosecution. (We comment, as an aside, that any malicious prosecution claim necessarily would have to be pursued in a separate proceeding and not as a counterclaim in the instant case. The evidence, as disclosed by the record before us, would not support a malicious prosecution judgment.)

We conclude with one final observation: While we have grounded our decision on the operative effect of Rule 62(dc), we do not comment upon whether a different result would obtain had the District Court judgment not been stayed or, in fact, had the judgment been executed. For a statement of the general rule, see 51C C.J.S. Landlord and Tenant § 323(3)b. See, also, Black v. Knight, 176 Cal. 722, 169 P. 382 (1918).

AFFIRMED IN PART; REVERSED IN PART; AND RENDERED.

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

BEATTY, J., concurs in the result.

JONES, J., concurs specially.

JONES, Justice

(concurring specially):

I completely agree with the opinion. I take this occasion to concur specially as a means of expressing concern about an appellate procedural problem of increasing frequency.

Appellant states the “Issue Presented” thusly:

“Where the plaintiff has been awarded a judgment for possession of the premises in the District Court and the defendant voluntarily abandons the premises while the case is on appeal to the Circuit Court, is the defendant entitled to damages for wrongful eviction upon a reversal by the Circuit Court?”

Our search of the record (two volumes) has disclosed a ruling adverse to the Appellant which is reviewable on appeal, as aptly stated in the opinion: An admissibility of evidence issue.

Under the old appellate rules, it was virtually impossible to compose an “Assignment of Error” without specifying the adverse ruling sought to be reviewed (“For that the trial Court erred in .

Perhaps we should have anticipated that the new rules (abolishing “Assignments of Error” and substituting “Issues Presented” with no prescribed format therefor) would result in issues being stated in the form of abstract legal questions. When the “Issues Presented” are posed as abstract legal queries — not in the context of the adverse ruling below — and the “Statement of the Case” omits any reference to the ruling of the trial court complained about, appellate courts are left to search the record for this primary and essential premise on which all appellate reviews must rest. The proliferation of appellate litigation (40% annual increase) hardly affords us the luxury of performing this necessary task on behalf of counsel.

This admonition is to be construed in the narrow procedural context in which it is addressed and not as a reflection on the quality of appellate advocacy in general. Indeed, in all other respects the briefs in this case are superior. Because I have concurred specially to point out a procedural defect in stating the issue presented in mere abstract terms, I should invite the reader’s attention to the case of Riley v. Crenshaw, 369 So.2d 543 (Ala.1979). In Riley, we set out the appellants’ statement of the issue presented which is also an abstract legal question. On its face, then, it would appear that what I have condemned in the instant case is identical to what we have quoted with approval in Riley. There is a material difference, however, in the two cases. Although the opinion in Riley does not so disclose, appellants’ counsel followed his abstract statement of the issue presented with a clear and concise statement of the specific adverse ruling made the basis of the appeal.

Statements of the legal issue presented as abstract legal propositions may indeed be helpful to the Court in identifying the issue to be addressed so long as the Court is not left to search the record for the adverse rulings below which the law recognizes as the only basis for appellate review.


text:
    Albert VARNER v. Curtis GARTH.
    77-566.
    Supreme Court of Alabama.
    March 2, 1979.

      Charlie D. Waldrep of Forstman & Wal-drep, Birmingham, for appellant.
    No brief for appellee.
   MADDOX, Justice.

Albert Varner and Curtis Garth entered into a partnership in 1971, for the operation of a night club. In 1976, Garth filed a complaint seeking an accounting and a determination of whether the partnership should be dissolved. This is an appeal from the trial court’s adoption of the report of a Special Master settling and distributing assets of the partnership.

The court appointed a Special Master “for the purpose of taking charge of the assets of the partnership of Curtis Garth and Albert Varner known as the Four One Club making an accounting of the interests of the parties hereto, a sale of the partnership assets, payment of the debts thereof and distribution of the proceeds, if any, to the parties.”

After receiving testimony and evidence on behalf of both parties, the Master made numerous findings, exceptions to which were taken by appellant, Varner. After the court adopted the report, appellant made a motion for reconsideration and for a new trial. Both motions were denied.

Appellant claims two findings made by the Special Master and adopted by the court were clearly and palpably wrong. First, Varner contends a finding that he had received $5,000 from whiskey sales was based upon conjecture and speculation. In support of this contention, he quotes from the report where the Master stated that Varner “received substantial, undetermina-ble profits from whiskey sales at the Eldorado Club” [emphasis added] while in the following paragraph the Master stated that he was of the opinion that Varner “received a minimum of $5,000 from the sale of whiskey.”

After reviewing the Master’s report, we are of the opinion that his decision was not based upon conjecture and speculation as appellant contends. The Master stated that his report was “based on the testimony of two disinterested witnesses.” Admittedly, the Master’s findings could have been stated more clearly; nevertheless, they are not “clearly erroneous.” Rule 53(e)(2) ARCP.

The Master found that Garth had borrowed $20,000 from the Jefferson County Teacher’s Federal Credit Union for the use and benefit of the club. He also found that Garth had executed a promissory note at the First National Bank of Birmingham in the sum of $5,000, the proceeds of which also went for the use and benefit of the club.

The Master determined that upon the distribution of partnership assets, Garth was entitled to, among other amounts, one-half of the unpaid balance on each loan representing Varner’s one-half interest in said loans.

There is no evidence in the record that Varner ever entered into any written agreement whereby he agreed to be responsible for the debts of Garth. He argues, therefore, that in the absence of a written agreement, he cannot be held responsible for a debt of this nature. He relies upon the Statute of Frauds, § 8-9-2(3), Code (1975), which states, in part:

“In the following cases, every agreement is void unless such agreement or some note or memorandum thereof expressing the consideration is in writing and subscribed by the party to be charged therewith or some other person by him thereunto lawfully authorized in writing.
* sfc * * jf: *
“3. Every special promise to answer for the debt, default or miscarriage of another. . . . ”

The general rule is that the separate debts of a partner, when they enure to the benefit of the partnership, may be converted into a partnership debt with the consent of the several partners. Teague Barnett & Co. v. Lindsey, 106 Ala. 266, 17 So. 538 (1894), 68 C.J.S. Partnership § 80.

The Master specifically found that the funds borrowed by Garth were “for the use and benefit” of the partnership. In holding Varner’s interest in the partnership responsible for one-half of the unpaid balance on loans, the Master necessarily found that there had been an implied agreement that the debts became partnership debts. In fact, there was evidence that payments had been made on the $5,000 note out of partnership proceeds.

Varner’s reliance upon the Statute of Frauds is therefore misplaced because an oral promise by a partner or by the partnership to pay a debt for which the partnership is liable is not within the Statute of Frauds, 37 C.J.S. Frauds, Statute of § 31 c, p. 546.

Rule 53(e)(2) ARCP states that “In an action to be tried without a jury the court shall accept the master’s findings of fact unless clearly erroneous.”

The appellant has failed to show that the trial court’s adoption of the Master’s report was clearly erroneous. We affirm.

AFFIRMED.

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


text:
    Mary LINNARD, a/k/a Mary Lindsey (Lindsley) v. Nick SHIELDS.
    77-608.
    Supreme Court of Alabama.
    March 2, 1979.
    Kirtley W. Brown of Fitts & Brown, Marion, for appellant.
    Rose M. Sanders of Chestnut, Sanders & Sanders, Selma, for appellee.
   MADDOX, Justice.

This case involves a contested will. The issue is whether the testatrix exhibited the testamentary capacity necessary to make a will.

Summarized, the facts are:

On February 26, 1975, the mayor of Un-iontown, Andrew Hayden, prepared a will for the testatrix. In the will the testatrix left $1.00 to her sister, Mary Linnard (Lindsley), the contestant. The remainder of her estate was left to Bernard Hugene Shields. Annie Bell Allen and Clarence Moore attested to the signing of the will and subscribed their names to the instrument. The testatrix died the following day.

The case was tried before a jury, which found that the instrument was valid and was the will of the testatrix. The contestant filed a motion for a new trial, and claimed that the jury’s verdict was contrary to the evidence. The trial court denied the motion. Contestant appealed.

The testimony given at trial was in conflict as to the mental and physical condition of the testatrix during the time period surrounding the making of her will. There is a well-established doctrine in this state which has recently been reiterated by this Court in Fletcher v. DeLoach, 360 So.2d 316 (1978); which states:

“In cases of this nature, the verdict of the jury cannot be overturned unless shown to be clearly wrong and unjust. Wilson v. Payton, 251 Ala. 411, 414, 37 So.2d 499, 501 (1948); Watkins v. Yeatman, 189 Ala. 370, 66 So. 707 (1914). The refusal of the trial judge to grant the appellant-proponent’s motion for new trial strengthens this presumption in favor of the verdict. Johnson v. Howard, 279 Ala. 16, 22, 181 So.2d 85, 91 (1965).”

After a careful review of the record in this case, we cannot say that the verdict of the jury was clearly wrong and unjust. The judgment entered upon the jury verdict is due to be and is hereby affirmed.

AFFIRMED.

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


text:
    Jackie Wayne KEMP and wife, Tommie Jean Kemp v. JACKSON MORTGAGE COMPANY, a corporation.
    77-686.
    Supreme Court of Alabama.
    March 2, 1979.

      Sloan Y. Bashinsky, II, Birmingham, for appellants.
    J. Reese Murray, Michael D. Waters, Birmingham, J. Howard McEniry, Jr., Bessemer, for appellee.
   MADDOX, Justice.

The primary issue presented by this appeal is:

Does a mortgagee/lender, which closes “in house” its own mortgage loan, assume a contractual, fiduciary, confidential, or other legal duty to represent the mortgagor/purchaser’s interest at the closing?

The trial court granted summary judgment to the mortgagee/lender.

The undisputed facts, shown by affidavits and depositions, filed in support of the motion for summary judgment are:

The Kemps entered into a real estate sales contract to purchase a newly constructed house from the builder/vendor who was represented by Belview Realty Company, which suggested that the purchasers apply to Jackson Mortgage Company for permanent financing. Jackson Mortgage allegedly held itself out to the public as a mortgage lender which would save its loan applicants the expense of an attorney’s fee at its closings. In other words, at the builder/vendor’s election, the Kemps would acquire an owner’s title policy and Jackson Company would acquire a mortgagee’s title policy. The total expense of procuring the two policies was to be divided equally between the seller and the purchaser.

Jackson Mortgage receive a title insurance commitment from Chicago Title Insurance prior to the closing. This commitment required what is known as a “Lien Waiver” to be executed by the builder/vendor of the house. The “Lien Waiver” constituted proof that all bills for labor and materials had been paid in full and would enable Jackson Mortgage to receive title insurance protection against unfiled mechanic’s liens. The purchasers would not receive such coverage, and, in fact, they were subject to a right of subrogation in the title insurance company for unfiled mechanic’s liens.

Jackson Mortgage prepared all documents which would be necessary to close the loan and the sale, including a note, mortgage, vendor’s deed, sales closing statement, “Lien Waiver,” and other documents. The mortgage which the Kemps executed contained the usual warranties of title, including a warranty that the property was being mortgaged by them free and clear of any liens. The builder executed the “Lien Waiver,” even though the title insurance commitment revealed that one mechanic’s lien notice had already been filed against the house. The Kemps did not, at that time, know about the outstanding lien.

Subsequent to the closing, Alpha Lumber Company filed the original action in this case to perfect its mechanic’s lien on the Kemps’ house. The Kemps also received notice from several other mechanics who were also pursuing liens against the house; however, these claims were not perfected. No one would agree to defend the Kemps against these lien claims; they filed the cross-claim against Jackson Mortgage in the Alpha Lumber lawsuit, and joined others, including the builder, its president, and the title insurance company. The title insurance company has paid every mechanic’s lien claim, and has agreed not to assert its right to subrogation.

The Kemps, in their cross-claim against Jackson Mortgage, claim that Jackson Mortgage contracted with them and undertook employment which required it to exercise that care and skill appropriate to the employment, and that Jackson Mortgage breached its obligation, in that it failed to tell them that there were probably outstanding mechanic’s liens which had not been filed at the time of closing. They also claimed that Jackson Mortgage, under the circumstances, illegally and unlawfully engaged in the practice of law under § 34-3-6, Code of Alabama, 1975.

Jackson Mortgage says that the evidence submitted in support of its motion on summary judgment, shows that there was no duty, as a matter of law, for it to provide the Kemps with legal advice concerning every matter that could occur after the closing. It contends that no contractual relationship, in fact, existed, and Jackson Company says that it had nothing to do with the making of any agreement other than the one between it and the Kemps to make the loan.

Jackson Mortgage says that it made no misrepresentations and that it had no reason to question the truthfulness of the “Lien Waiver,” signed by the builder/vendor.

The Kemps contend that summary judgment was inappropriate because they submitted counter-affidavits from two experienced loan-closing attorneys who each stated that:

“It would not have been prudent under the facts alleged in the pleading for Jackson Company to have simply accepted a lien waiver from the builder without making further inquiries as to whether or not there were any mechanics who had not been paid. Builders commonly execute a lien waiver at a closing when they have unpaid mechanics. The reason is that builders generally do not have all of their statements in from their mechanics by the time of the closing and sometimes they are running short of cash and have not been able to pay their mechanics pri- or to receiving the sales proceeds. I would be quite surprized [sic] to find anyone who had any experience in closing transactions on newly constructed residential property who did not know this.
“I would say that it would be unusual for a mechanics lien to be filed for record prior to the closing of a newly constructed dwelling. In my opinion, this would indicate to anyone competent to close the transaction that the builder was probably having financial problems. A question should immediately arise in the mind of the closing agent regarding the builder’s ability to payoff [sic] all of his mechanics, and some sort of inquiry as to the payment of the mechanics for that property should be made. The simple acceptance of a lien waiver which is routinely given at all closings by the builder, regardless of whether or not he had paid off his mechanics, would simply have been unacceptable procedure.
“I am advised that this was the first transaction Jackson Company had had with this particular builder. This certainly should have caused Jackson Company to be even more cautious about simply accepting a lien waiver from a builder with whom no prior dealings had been established.”

It is apparent that the opposing affidavits filed by the Kemps fail to comply with the requirements of Rule 56(e), ARCP which provides, in part:

“Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. . . ”

In reaching the conclusion that the opposing affidavits are insufficient, we do not hold that the affiants were not competent as “experts,” only that their evidentiary affidavits were based upon the “facts alleged in the pleading. . . . ” This Court has approved the use of an opposing affidavit by an expert, but in doing so, the Court pointed out that the expert’s opinion, which was stated in the affidavit, was based upon a personal review by the expert “of voluminous material concerning the Defendant R. L. Reid, Inc.’s Motion for Summary Judgment.” Plant v. R. L. Reid, Inc., 365 So.2d 305 (Ala.1978).

It is abundantly apparent from the deposition and affidavits filed by Jackson Company in support of its motion for summary judgment that the cause of trouble was the false “Lien Waiver,” executed by the builder, under oath.

We have reviewed very carefully the evidence in support of the motion for summary judgment, the statement of the facts in the Jackson Company brief, with which the Kemps “basically agree,” and the statements made during oral arguments, and conclude that Jackson Company was entitled to summary judgment.

AFFIRMED.

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


text:
    Charles A. BOSWELL, Com’r., etc. v. ALCOA CONSTRUCTION SYSTEMS, INC.
    77-728.
    Supreme Court of Alabama.
    March 2, 1979.
    William J. Baxley, Atty. Gen. of Ala., Herbert I. Burson, Jr., Counsel, Dept, of Revenue, and Asst. Atty. Gen., State of Ala., B. Frank Loeb, Asst. Counsel, Dept, of Revenue, and Asst. Atty. Gen., State of Ala., for appellant.
    David S. Conrad of Conrad & Hammond, Mobile, for appellee.
   PER CURIAM.

Alcoa filed an action for declaratory judgment asking for a construction of Title 51, § 787(e), Code of Alabama Recompiled 1958, now § 40-23-60(5), Code of Alabama 1975, that would require the State Department of Revenue to refund $35,104.28 in taxes previously paid under that statute. The facts were stipulated and, after submission, the trial court entered its judgment ordering the Revenue Department to refund the amount paid plus interest. In its order, the trial court held that “. the sale by [taxpayer] of modular, housing units to the Mitchell Company of the Southeast in Mobile, Alabama, at a price of $877,607.71 was a retail sale, as defined in Alabama Code 1975 Sec. 40-23-60(5) (supra) and therefore not subject to the tax . . . .” The Revenue Department appealed. The facts are:

Alcoa constructed 208 modular units at its plant in Tyronne, Pennsylvania, for sale to the Mitchell Company of the Southeast in Mobile, Alabama. These units consisted of two separate models, one with two rooms, a kitchen and bath; the other with two and a half rooms, a kitchen and bath and a half. The unit with one bath was used in a two bedroom apartment; the bath and a half unit was used in a three bedroom apartment. Each unit has walls, floors, ceilings, storage rooms, closets, cabinets, wiring, plumbing and ventilating system, hot water heaters, heating and air conditioning equipment and other items.

These modular units were shipped to the job site in Mobile where they were set in place by Mitchell and ultimately became part of the realty. The remaining rooms, living rooms, dining rooms, bedrooms, etc. were completed in a conventional manner using other conventional building materials to make a complete apartment project. The units are modular units and, as such, are inspected and approved by the Alabama Development Office as being manufactured in accordance with local building requirements within standards established by the Southern Building Codes Congress, etc.

The cost of the units to the purchaser was $877,607.71 and the tax was paid on that amount. Sales tax was paid on the cost of materials used in the conventional construction.

The Revenue Department contends that tax was properly collected on the sale of the modular units. The taxpayer disagrees. The controversy centers on the construction of Act No. 2397, Acts of Alabama 1971, Vol. V, page 3828, now § 40-23-60(5), Code of Alabama 1975. The Act, in pertinent part, is as follows:

“To amend Title 51, section 787(e), as amended, Code of Alabama 1940, so as to make the sale of building materials, fixtures, or other equipment to a manufacturer or builder of modular buildings for use in manufacturing, building or equipping a modular building ultimately becoming a part of real estate situated in Alabama a sale at retail.
“Be It Enacted by the Legislature of Alabama:
“Section 1. Title 51, section 787(e), as amended, Code of Alabama 1940, is hereby further amended to read as follows:
“Section 787(e). The term ‘sale at retail’ or ‘retail sale’ shall mean all sales of tangible personal property except those above defined as wholesale sales. The quantities of goods sold or prices at which sold are immaterial in determining whether or not a sale is at retail. Sales of building materials to contractors, builders, or landowners for resale or use in the form of real estate are retail sales in whatever quantity sold. Sales of building materials, fixtures or other equipment to a manufacturer or builder of modular buildings for use in manufacturing, building or equipping a modular building ultimately becoming a part of real estate situated in the State of Alabama are retail sales, and the use, sale or resale of such building shall not be subject to the tax. . . . ”

The taxpayer contends that this Act does not require tax to be paid on the modular housing part of the materials which went into the construction of the apartment complex. It concedes that tax is due on all conventional building materials.

Although the Act is not a model of clarity, it seems to us that, insofar as modular building is concerned, it was designed to make the sale of materials going into the construction of such buildings subject to the tax and to exempt the sale of the building itself from the sales tax. This construction would have the effect of placing modular building components on a par with conventional building materials, i. e., making the sale of all building materials, modular or otherwise, sales at retail. The alternative would be to treat the sale of such component parts as wholesale sales under § 40-23-l(a)(9)(a) and tax the sale of the ultimate product. We think this is what the legislature sought to avoid by saying:

“. . . Sales of building materials, fixtures or other equipment to a manufacturer or builder of modular buildings for use in manufacturing, building or equipping a modular building ultimately becoming a part of real estate situated in the State of Alabama are retail sales, and the use, sale or resale of such building shall not be subject to the tax. . . . ” (Emphasis Added) (Act 2397, supra)

The trial court found that the sale of the modular housing units by the taxpayer to the builder was a retail sale, but was not subject to the tax. We agree that it was a retail sale, but cannot agree that it was not subject to the tax under the provisions of § 40-23-60(5). The judgment appealed from is, therefore, reversed and remanded.

REVERSED AND REMANDED.

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


text:
    Samuel Edward MOTLEY v. Preastley H. BATTLE, Adm’r., etc.
    77-729.
    Supreme Court of Alabama.
    March 2, 1979.
    Frank O. Hanson, Jr., Birmingham, for appellant.
    Thomas A. Woodall of Rives, Peterson, Pettus, Conway, Elliott & Small, Birmingham, for appellee.
   SHORES, Justice.

On October 14, 1977, Preastley H. Battle, as administrator of the estate of Willie H. Battle, filed a wrongful death action against General Motors Corporation and Samuel Edward Motley for the death of Battle which resulted from injuries sustained in an automobile accident on December 26, 1976. The suit charged Motley with negligently causing Battle’s death.

On November 14, 1977, Motley filed an answer and counterclaim alleging that decedent Battle negligently operated his automobile causing Motley’s injury.

Letters of Administration were granted upon Battle’s estate on January 17, 1977, and no claim was filed against his estate by Motley within six months thereof for any alleged injuries suffered by Motley and made the basis of his counterclaim.

These facts are undisputed. The trial court granted summary judgment in favor of the Battle estate, holding that Motley’s counterclaim was barred for failure to comply with the nonclaim statute, § 43-2-850, Code of Alabama 1975. We affirm.

The nonclaim statute, in pertinent part, provides:

“All claims against the estate of a decedent . . . whether due or to become due, must be presented within six months after the grant of letters testamentary or of administration; and if not presented within that time, they are forever barred and the payment or allowance thereof is prohibited. . . . ”

In Moore v. Stephens, 264 Ala. 86, 93, 84 So.2d 752, 760 (1956), this court held:

“. . . the statute of nonclaim is clear and unambiguous and ‘must be construed to mean just what the words import’, and the words ‘all claims against the estate of the decedent’ should be construed to include all claims not specifically excepted, and thus to include tort claims.”

Clearly, Motley’s counterclaim seeking damages for personal injury is a tort claim and it is clearly a claim against the Battle estate. He argues, however, that because ARCP 13(c) provides in part that

“. . . All counterclaims other than those maturing or acquired after pleading shall relate back to the time the original plaintiff’s claim arose,”

his counterclaim should be treated as relating back to the time Battle’s death action arose and, therefore, not barred by the non-claim statute, because the filing of the counterclaim is sufficient notice to comply with the statute. It is true that Barrett v. Fondren, 262 Ala. 537, 80 So.2d 243 (1955), held that a suit filed within six months after grant of letters of administration was a sufficient presentation of a claim against an estate. That case would support an argument that a counterclaim filed within six months of the grant of letters of administration would be sufficient; but that situation is not presented here. In the instant case, the counterclaim was not filed within six months. It was filed some eight months after letters of administration were granted. ARCP 13(c) was not intended to excuse noncompliance with the nonclaim statute. Rule 13(c) was drawn to “. . . harmonize with Title 7, § 355, Code of Ala.” Committee Comments. That statute, now codified as § 6-8-84, Code of Alabama 1975, reads:

“When the defendant pleads a counterclaim to the plaintiff’s demand, to which the plaintiff replies the statute of limitations, the defendant is nevertheless entitled to his counterclaim, where it was a legal subsisting claim at the time the right of action accrued to the plaintiff on the claim in the action.”

Many years ago, this court held that non-claim did not fall within the healing provisions of the relation back statute, a predecessor to Title 7, § 355, Code of Alabama Recompiled 1958, which was § 2682, Code of 1886.

In Patrick v. Petty, 83 Ala. 420, 423, 3 So. 779 (1887), this court held:

“. . . This statute, however, is confined to the statute of limitation[s] in its express terms, and can not be extended further. Non-claim does not fall within its healing provisions.”

Because Rule 13(c), ARCP, is only a restatement of the statute, nonclaim does not fall within its “healing provisions.”

The purpose of the statute of non-claim, originally enacted in 1815, Clay’s Digest 195, § 17, is to “. . . promote a speedy, safe, and definitive settlement of estates, by giving the personal representative notice and knowledge of all claims against the estate in his hands.” Smith v. Fellows, Adm’r, 58 Ala. 467, 471 (1877). It was described by Chief Justice Brickell in Fretwell v. McLemore, 52 Ala. 124, 144, 147 (1875), as follows:

“. . . The whole theory of the statute is to create a defence broader in its operation than the statute of limitations, not only barring remedies, but extinguishing debts and liabilities. .
“. . . one of the most important statutes to be found in our statute book, —a statute founded on the wisest public policy, affording protection to the living and the dead; a statute, which gives repose to society, quiets litigation, removes temptations to fraud and perjury, secures titles, and preserves domestic peace.

We hold that “all claims against the estate of the decedent” as used in the non-claim statute includes counterclaims as well as original claims brought against the estate.

The judgment appealed from is, therefore, affirmed.

AFFIRMED.

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


text:
    Dovie B. HINGLE v. Robert L. GANN and Margaret Gann.
    78-16.
    Supreme Court of Alabama.
    March 2, 1979.

      Carolyn D. Gaines of Chestnut, Sanders & Sanders, Selma, for appellant.
    Charles E. Robinson of Church, Trussed & Robinson, Pell City, for appellees.
   MADDOX, Justice.

This is a boundary line dispute. The appellant frames the issue here as follows:

“Whether a party can specifically plead that a boundary line between a coterminous landowner is a section line and subsequently have the boundary line established solely on a claim of adverse possession without regard to the section line and without prior notice to the defendant.” Unquestionably, plaintiff did allege that:
“4. Plaintiffs aver that the true boundary line separating their property from that of the defendant is the Eastern Boundary line of Section 26, Township 16, Range 3 East, which said boundary line is marked by a fence that has been on the premises for more than thirty-two years.” [Emphasis added]. Defendant answered this allegation with:
“Defendant admits the allegations in paragraph 4 of said complaint except the portion averring that the boundary line is marked by a fence that has been on the premises for more than thirty-two years which Defendant denies and demand strict proof thereof.”
The court decreed:
“From the testimony and the other evidence introduced in said cause, the Court finds that the fence line as shown in the defendant’s Exhibit 1, a copy of said exhibit being attached hereto and made a part hereof as if fully set out herein, and marked ‘Encroachment Fence’ on said exhibit has been established for more than twenty five years and recognized as the Eastern Boundary line of the plaintiffs’ property as described in the complaint.
“The Court also finds from the testimony and other evidence that the fence once extended and was established to the Northern boundary line of the plaintiffs’ and defendant’s property.
“The Court finds that the plaintiffs have used their property and cared for said property up to the fence for more than twenty five years. From other testimony, it appears that said fence has been generally recognized within the community as the dividing line between the plaintiffs’ property and the defendant’s property for more than twenty five years.”

The “encroachment fence” referred to in the order is obviously not on the government survey line; therefore, it is quite apparent that the court determined that the “encroachment fence” had been established as the boundary by adverse possession.

When plaintiffs rested, the following colloquy occurred:

“MR. THOMPSON: Judge, before I get into our evidence, I want to make one objection. I came into Court based on the notice contained in the complaint. The complaint sets out where the property line is as being the eastern boundary of the Gann’s which is pointed out in the complaint as being the western boundary of Mrs. Hingle’s property. There is no allegation containing the adverse possession. I came into Court prepared to locate that particular line, but the evidence coming in tends to lean toward adverse possession, and I object on that basis.
“THE COURT: Well, what is the objection?
“MR. THOMPSON: Well, if the decision of this Court is going to be based on adverse possession as opposed to where that section line is, than I have had inadequate notice.
“THE COURT: You mean if you are going to plead adverse possession, you have to specifically plead it?
“MR. THOMPSON: No, sir, not at all. I believe it is indirectly mentioned in there, but there has been no allegation that it was open, notorious, continuous, adverse, etc. I believe Mr. Robinson’s complaint sets out that the fence has been the boundary line .
“THE COURT: That is what . . the complaint says: ‘The plaintiffs aver that the true boundary line has separated their property as the eastern boundary line of Section 26, Township 16, Range 3 East, which said boundary line is marked by a fence and has been on the premises for more than thirty-two years.’ That would be along the eastern section line of Section 26, it would be along the east boundary line of the northeast of southeast and the western boundary line, as I understand the pleadings, of the defendant’s land would be in the northwest of southwest of Section 27 . . or Section 25.
“MR. ROBINSON: That’s correct.
“THE COURT: Well, I overrule the objection.”

There was no specific objection made during plaintiffs’ presentation of evidence that there was a variance between the allegations and the proof.

Obviously, this case is an example where a pre-trial conference, with attendant pre-trial order, could have settled the exact issue for trial. We are convinced, however, that the question of plaintiffs’ ownership to the “encroachment fence” was presented as an issue, if not by the complaint, then by the parties, at trial.

This method of framing issues is not commended, even with “notice pleading,” but we do not reverse. After reviewing the entire record, we think that any error which occurred was harmless. Rule 45, ARAP'. We reach this result, in part, because of the rule announced by this Court in Simon v. Snyder, 279 Ala. 70, 181 So.2d 885 (1966):

“Section 3, Title 47, Code of Alabama 1940, relating to suits to determine boundary lines between adjoining landowners provides among other things:
‘The court shall determine any adverse claims in respect to any portion of the land involved which it may be necessary to determine for a complete settlement of the boundary lines 11 *.’
“In his answer the respondent denied the averment in the bill that the north line of complainant’s property as described in the complaint was the true boundary line.
“This general denial put in issue the true location of the north boundary line, Rushton v. McLaughlin, 213 Ala. 380, 104 So. 824, which the complainant Simon had himself prayed the court to establish.
“Since under the doctrine of our cases a defendant in an action at law may defend on adverse possession or prescription under a plea of the general issue, we know of no rule requiring a respondent in a suit in equity to plead the defense of limitations to enable him to establish such defense. See Keppel v. Dreier, 187 Ill. 298, 58 N.E. 386.”

We note also that both the plaintiffs and the defendant, in their complaint and counterclaim respectively, asked for damages for “trespass.” The final decree of the trial court makes no mention of these claims. Since we accept the decree entered as final, and since there was no Rule 54(b) certification entered, we determine that each claim for money damages has been denied.

AFFIRMED.

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