author: HEFLIN, Chief Justice.

text:
    Mildred Doris MORDECAI and Charles E. Mordecai v. Mattie O. SCOTT.
    SC 1145.
    Supreme Court of Alabama.
    Oct. 2, 1975.

      R. B. Jones, Birmingham, for appellants.
    Church & Trussed, Pell City, for appel-lee.
   HEFLIN, Chief Justice.

This case arose out of a dispute as to the interest in a homestead granted to a widow and an adult child through a homestead law proceeding. Appeal is taken from the holding of the trial court granting appellee Mattie O. Scott and appellant .Mildred Doris Mordecai each an undivided one-half interest in the disputed property ,with a right to the widow-appellee Mattie O. Scott of exclusive possession of the property for her life.

Appellee Mattie O. Scott is the widow of J. H. Scott who died intestate in 1958 owning a homestead not exceeding 160 acres in area. Appellant Mildred Doris Mordecai is the daughter of the complainant-appellee and the decedent and was over the age of 21 years at the time of decedent’s death. Husband, Charles E. Mordecai, joins his wife as an appellant.

The trial court found that the homestead real estate was all of the real property that J. H. Scott owned in the State of Alabama and that it exceeded $6000.00 in value. The trial court further found that Scott’s estate owed no debts.

Because the real property was valued at more than $6000.00, the appellants argue that appellee was entitled only to a life estate in the property as provided by Title 7, Section 661, Code of Alabama, 1940 (Recompiled 1958). It is apparent that the trial court construed the second sentence of Section 661 of Title 7 with Section 663 of the same title in reaching a different result from the contention of the appellants.

Under the facts of this case, the issue before this court is whether the trial court was correct in vesting an absolute fee simple interest in the widow and adult child, irrespective of the value of the property involved. This court holds that the trial court was correct in its decision.

Homestead has historically been a confused and confusing area of the law, which has presented difficulties to both the bench and bar. The most litigated aspect of homestead law has been the nature and value of the interest to be granted survivors under the Alabama statutes. The confusion surrounding this problem has been compounded because of the changes made in several of the statutes by the legislature in 1951 and 1953. In light of these changes, a review of the present state of the law of homestead pertinent to the rights of survivors seems appropriate before turning to the issue presented by this case.

Two principles must be kept in mind when determining the homestead rights of survivors: (1) Survivors receive no benefit unless the decedent owned real estate, Geohegan v. Geohegan, 272 Ala. 514, 133 So.2d 50 (1961); and (2) statutes in effect at the decedent’s death control what estate the survivors will receive. Nix v. McCoy, 280 Ala. 516, 195 So.2d 893 (1967).

In general, the homestead law provides to named survivors a homestead not exceeding 160 acres in area which is exempt from administration and the payment of debts. Title 7, Sections 661, 663, 697, Code of Alabama, 1940 (Recompiled 1958). Although the term “homestead” is not defined in the statute, this court has stated that “[a] homestead, in law, means a home place, or place of the home, and is designed as a shelter of the homestead roof, and not as a mere investment in real estate, or the rents and profits derived therefrom.” Griffin v. Ayers, 231 Ala. 493, 496, 165 So. 593, 595 (1936). It has been further defined as “the roof that shelters and the land used in connection therewith for the comfort and sustenance of the family * * * * ” Moseley v. Neville, 221 Ala. 429, 431, 129 So. 12, 14 (1930), quoted in Griffin v. Ayers, supra. Normally the land must have been occupied by decedent prior to his death. Turner v. Turner, 107 Ala. 465, 18 So. 210 (1895). Contiguous real estate used for rental or commercial purposes and not used by the homeowner or his family is not within the “homestead.” Griffin v. Ayers, supra; Turner v. Turner, supra. But see Cade v. Graffo, 227 Ala. 11, 148 So. 591 (1933), where contiguous property rented to others was determined to be part of the homestead because it was also used by the owner in connection with the homeplace.

Although the purpose of the homestead law is to secure the protection of the home to the survivors, it is not necessary that the widow and minor children actually occupy the homestead prior to decedent’s death. See Hammond v. Shipp, 292 Ala. 113, 119, 289 So.2d 802, 807 (1974); Thompson v. Bryant, 251 Ala. 566, 38 So.2d 590 (1949). The survivors need not be Alabama residents, Lucky v. Roberts, 211 Ala. 578, 100 So. 878 (1924), although the statute [Section 661] does require that the decedent reside in Alabama at the time of his death. Matthews v. Matthews, 249 Ala. 611, 32 So.2d 514 (1947).

If the decedent owned no homestead or if the homestead cannot be reduced to statutory value, the widow and minor children may receive an exemption in lieu of homestead in decedent’s other lands. Title 7, Section 662, Code of Alabama, 1940 (Recompiled 1958). This same provision states that if decedent has no homestead exempt from levy and sale under process and if it is impossible to carve a homestead from the “other real estate,” the survivors can receive $6,000.00 from the proceeds of the sale of decedent’s real estate. See Geohegan v. Geohegan, 272 Ala. 514, 133 So.2d 50 (1961). If the homestead is devised, the devisee can clear the property of the homestead rights by paying $6,000.00 to the personal representative. Title 7, Section 689, Code of Alabama, 1940 (Recompiled 1958). Section 687 provides that the money received under both Sections 662 and 689 is to be spent to purchase another homestead or to be paid to the widow, or the guardian of minor children if there is no widow, for the use and support of widow and/or minor children “upon such provisions, conditions or limitations as to the court shall seem proper in the premises.” If the devisee does not wish to clear the property of homestead rights, the homestead can be set aside to the widow and/or minor children as provided in Section 661. Cf. Jay v. Jay, 289 Ala. 513, 518, 268 So.2d 788, 792 (1972).

Neither the surviving husband nor collateral heirs have rights under the homestead laws. See Title 7, Section 669, Code of Alabama, 1940 (Recompiled 1958); Little v. Simmons, 222 Ala. 206, 131 So. 561 (1930) (rights of husband); Harrod v. Farmer, 273 Ala. 298, 139 So.2d 115 (1962) (rights of collateral heirs). The homestead rights of minor children in property left by their mother are superior to the rights granted to the husband by Title 16, Section 12 of the Code. See Barton v. Laundry, 202 Ala. 10, 79 So. 308 (1918).

When the homestead is not devised and there are no debts or the debts have been paid, the widow and minor children are allowed an exemption in the homestead without any value limitation under Section 661. See McCarver v. Womack, 285 Ala. 264, 231 So.2d 301 (1970); Tipton v. Tipton, 268 Ala. 497, 108 So.2d 348 (1959); Ganus v. Sullivan, 267 Ala. 16, 99 So.2d 204 (1957).

Section 663 provides that if the homestead set aside is all the real estate owned in this state by the decedent at the time of his death then title vests absolutely in the widow, minor and adult children and the descendants of deceased children. See Pryor v. Heard, 268 Ala. 310, 106 So.2d 171 (1958).

This section has been construed to allow absolute vesting where decedent owned cemetery lots, Sams v. Sams, 242 Ala. 240, 5 So.2d 774 (1942), but absolute vesting was denied where decedent owned mineral rights in lands other than the homestead. Locke v. Locke, 291 Ala. 344, 280 So.2d 773 (1973).

There is no question that the survivors’ interest becomes a fee interest, regardless of devise, if the property set aside is all the property owned by the deceased in the state at the time of his death, the value is $6,000.00 or less and the area does not exceed 160 acres. Nathanson v. Key, 286 Ala. 486, 487, 242 So.2d 389, 391 (1971); Nix v. McCoy, 280 Ala. 516, 195 So.2d 893 (1967).

The case presently before this court presents a situation where (1) the property is all the real estate which decedent owned within the state at the time of his death, (2) it does not exceed the area limitation, (3) but does exceed $6,000.00 in value, (4) no debts are owed by decedent’s estate and (5) there is no devise of the property. The court must determine whether, under these facts, a homestead can be set apart which vests absolutely in the widow and adult child regardless of its value.

The statutes pertinent to this issue are Sections 661, 663, 694, and 697 of Title 7, Code of Alabama, 1940 (Recompiled 1958). This court has previously stated that these sections are to be construed together. Simpson v. Simpson, 254 Ala. 648, 49 So.2d 314 (1950). At least three of these sections underwent extensive revision in 1951 and 1953. Prior to these revisions, the Code provided for a homestead exemption for the life of the widow and minority of the children of not exceeding $2,000.00 in value and 160 acres in area, which would vest absolutely if the estate was determined to be insolvent. Section 7918, Code of Alabama, 1923 (In the 1940 Code this appeared in Section 661 of Title 7.). Further, the homestead would also vest absolutely in the widow and minor children as against other heirs of decedent after a judicial determination that it was all the property owned by decedent at his death and was not valued at more than $2,000.00. Section 7920, Code of Alabama, 1923 (In the 1940 Code this appeared in Section 663 of Title 7.); Taylor v. Dew, 236 Ala. 624, 184 So. 184 (1938); Sims v. Kitchens, 233 Ala. 484, 172 So. 638 (1937). Title was presumed absolute as against creditors until it was judicially determined not to be all of the real estate owned by decedent at death and to be of greater value than $2,000.00. Section 7920, Code of Alabama, 1923 (In the 1940 Code this appeared in Section 663 of Title 7); Sims v. Kitchens, supra.

In 1951, the legislature revised Section 661 and Section 697, as well as other sections dealing with homestead laws, and repealed Section 663 of the 1940 Code. This court discussed the changes made by these revisions in the case of Mitchell v. Mitchell, 258 Ala. 572, 64 So.2d 104 (1953), where it was determined that the legislature meant by these changes (1) to raise the value of the homestead from $2,000.00 to $6,000.00 and (2) to provide that adult children would have an interest equal to those of the widow and minor children where the homestead vested absolutely. This interpretation was approved and reinforced by the legislature in 1953 when the legislature reenacted and amended Section 663 and revised 697 by adding the parenthetical “minors and adults” after the word “children” in both sections. The reenacted version of Section 663 contained no provision requiring a judicial proceeding prior to vesting; it did provide homestead rights for the descendants of deceased children as well as for adult children.

In a case construing these revisions and their effect on Section 669, it was determined that adult children and their descendants have no homestead rights in their deceased mother’s estate where the mother died leaving no surviving minor child. Young v. Seale, 266 Ala. 398, 96 So.2d 746 (1957). In Seale, the changes made in Section 663 were examined and it was found that

“[t]he scheme of the homestead exemption statutes, as amended, is still to require that there be either a surviving widow or minor child, in the case of the husband’s or father’s estate, and a minor child in the case of the mother’s estate, in order for a homestead exemption to be set apart. It is only when there is such survivor or survivors that the adult children and descendants of children are entitled to any interest in a homestead exemption; and such interest comes into being only when the homestead set apart to the widow and minor children, or either, as the case may be, constitutes all the real estate owned in this state by the decedent at the time of his or her death. It seems to us that the legislative purpose was to place adult children on the same plane with the widow and minor children where there is an absolute vesting of title to the homestead set apart to them (subject, of course, to the life estate of the widow and the minor children’s right to occupancy during their minority).”

The 1951 revision of Section 661 included for the first time a provision that a homestead of unlimited value would be set apart to the widow (for her lifetime) and minor children (for their minority) where there were no debts and where the property had not been devised. Appellants argue that the trial court erred by construing this provision of Section 661 with Section 663 to reach the result below. They argue that the $6,000.00 value limitation of Section 661 is implicit in Section 663 and that, because the homestead here involved is of a greater value, Section 663 has no effect and appellee has a right to a life interest only. This court disagrees with appellants and finds that the trial court’s conclusions are correct.

At least three previously decided cases have a bearing on the decision this court reaches today. One, Harrod v. Farmer, 273 Ala. 298, 139 So.2d 115 (1962), was decided on facts similar to those in the case before the court. In Harrod, decedent died intestate leaving property of less than 160 acres which was all the property he owned in the state and which was valued at more than $6,000.00. His estate owed no debts at the time the proceeding reviewed by the court was instituted to set aside the homestead to the surviving widow absolutely. A demurrer to the action was filed by decedent’s next of kin (two sisters). The demurrer was overruled by the trial court and this decree was appealed. The issue, as addressed by this court, was whether “the homestead of a childless, Alabama resident, dying intestate after September 19, 1953, vest[s] in the widow absolutely, in fee simple, if it does not exceed 160 acres in size and if all debts of the estate are paid, even though said homestead exceeds the sum of $6,000.00 in value.” 273 Ala. at 299-300, 139 So.2d at 116. This court answered affirmatively. In reaching its conclusion the court construed the second sentence of Section 661 with Section 663 in order to establish what homestead rights vested in the widow. The court noted that without provision for absolute vesting of the homestead, the widow is placed in a position inferior to that of decedent’s collateral heirs named in the descent statutes — a position not faced by the children of decedent, who have priority in inheriting under Title 16, Section 1. The court further found that “[t]he effect of the amendments of §§ 661 and 663 is to place the widow in a more advantageous position than she had previously occupied, enabling her not only to occupy but to obtain title to the homestead of her deceased husband unlimited as to value, yet limited to 160 acres in area, where there are no debts of the estate or they have been paid by her. We are unable to say that this effect was not intentional on the part of the legislature in amending the statute.” 273 Ala. at 302, 139 So.2d at 118.

In Harrod v. Farmer, the parties challenging the widow’s rights were collateral heirs, not adult children, as in the case presently before the court. Still, the decision of the court was that the second sentence of Section 661 was to be construed with Section 663 to provide for vesting of a homestead of unlimited value where necessary factual requirements were met. To that extent Harrod is direct precedent on the issue of value presented by this case.

The later case of Nathanson v. Key, 286 Ala. 486, 242 So.2d 389 (1971) may appear superficially to be in conflict with Harrod. In Nathanson, the issue was whether a probate court’s decree setting aside a homestead was void for failing to find as a necessary jurisdictional fact that the property involved was all the property owned by decedent in the state. The court found that it was a necessary jurisdictional finding and voided the decree. The court stated, as dicta, that

“[i]n a judicial proceeding to have the homestead set aside to the widow in fee, the court must find that the property (sought to be set aside as homestead) * * * did not exceed $6,000 in value and 160 acres in area.”

286 Ala. at 487, 242 So.2d at 391. In a footnote, the court noted that Harrod, supra, had allowed the exemption without limit as to value. No indication was made that the court intended by its decision in Nathanson to overrule Harrod. It should be noted that in Nathanson the homestead was valued at less than $6,000.00. Thus the second sentence of Section 661 did not influence the decision in that case.

The reference to Harrod and to Ganus v. Sullivan, 267 Ala. 16, 99 So.2d 204 (1957), both of which involved construction of the second sentence of Section 661, without an indication of intention to overrule them, amounts to an acknowledgement by the court that it was aware that under other facts (i. e., land valued at more than $6,000.00, no devise and no debts owed) different jurisdictional findings would be required. Thus, Nathanson does not specifically address the issue before the court and does not preclude this court following Harrod v. Farmer.

The case of Tyner v. Martin, 290 Ala. 310, 276 So.2d 431 (1973) considers another aspect of the issues raised by Sections 661 and 663. In Tyner, decedent left a homestead of less than 160 acres which was found to be valued at more than $6,000.00. There were no debts owed by the estate, but decedent did leave a will which first provided that decedent’s executors should “spend whatever amount is necessary” to provide for his wife and then provided that at her death whatever was left was to go to three named individuals. The widow, who was incompetent, dissented from the will through a guardian and further moved to have the homestead set apart to her. The trial court granted her a life estate in the property with provision that it should go to decedent’s devisees at her death. When the widow died, her administratrix brought an action challenging the earlier decree on grounds that title to the homestead should have been vested absolutely in the widow, based, among other things, on the construction given the second sentence of Section 661 and Section 663 in Harrod v. Farmer. The court distinguished Harrod from the case before it on the basis that in the case before it the decedent had left a will. The court though treated Harrod as the law of Alabama in those cases where decedent died intestate, leaving no debts and where the property was less than 160 acres and was all the property owned in the state at the time of decedent’s death. Further, it construed the second sentence of Section 661 with Section 663 in its determination of rights of the widow and other parties before it.

Thus, at least two cases previously decided by this court have construed Section 661, second sentence, with Section 663 to determine the interests of survivors under the latter statute. No decisions have been pointed out which require otherwise. The decision of the trial court holding that Mildred Doris Mordecai and Mattie O. Scott each have a one-half undivided interest with right to sole possession for life in appellee is due to be affirmed. This court finds that a homestead of unlimited value vests absolutely in the eligible survivors where the homestead is all the real estate owned by decedent in the state at his death, decedent’s estate owes no debts and the property has not been devised, provided it doesn’t exceed 160 acres.

Affirmed.

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

      . The second sentence of Section 661 of Title 7 reads:
      Except when the homestead is devised by will it shall vest in the widow and the minor children for the life of the widow or the minority of the children whichever may last terminate, without limit as to value, if there are no debts, or if the remainder of the estate is sufficient to pay all debts and claims against the estate, or if the remainder of the estate is insufficient to pay all claims against the estate and if the widow or minor children shall pay the remaining unsatisfied claims.

      . Title 7, Section 663 reads:
      When the homestead set apart to the widow and minor children, or either, constitutes all the real estate owned in this state by the decedent at the time of his death, whether there be administration on the estate or not and whether the estate be solvent or insolvent, the title to such homestead vests absolutely in the widow, the children (minors and adults) and the descendants of deceased children ; or if there be no widow, in the children (minors and adults) and the descendants of deceased children; and if there be no children or descendants of deceased children, in the widow. Provided that when there are children and a widow the homestead so vested shall not be sold for division during the life of the widow and the minority of the child or children, without the consent of the widow and the legally appointed representative of the minor children. And provided further 'that when the homestead is so vested and there are a widow and minor children the widow and minor children shall be entitled to the exclusive possession of such real property for the life of the widow and the minority of the children; where there are both minor and adult children the minor children shall be entitled to the exclusive possession of such real property during their minority; and where there is a widow but no minor children such widow shall be entitled to the exclusive possession of such property during her life. As against creditors of decedent the title to the homestead will be presumed to be absolute until it is judicially determined that it is not all of the real estate left by the decedent, and that it is of greater value than six thousand dollars, and the homestead secured thereby shall be held and governed as in section 661 of this title.

      . For a treatment of the entire subject of survivors’ homestead rights, see Comment, Homestead for Survivors in Alabama, to be published in 27 Ala.L.Rev. - (1975). Appreciation is extended to the staff of the Alabama Law Review and to Joe Dean, Jr., the author of this article, for allowing the court to refer to the manuscript prior to its publication.

      . See Comment listed in footnote 3, for author’s argument that homestead rights should be extended to widowers.

      . See comment on the effect of the 1951 Act in an article entitled “Homestead Rights in Alabama Protecting Widows and Children” by Fred Blanton, 15 Alabama Lawyer 262, 275 (1954).


source: Caselaw Access Project

author: BLOODWORTH, Justice.

license: Public Domain

text:
    Mary Elizabeth MILLSAP v. Franklin WILLIAMSON et al.
    SC 400.
    Supreme Court of Alabama.
    Oct. 2, 1975.
    Kenneth Cooper, Bay Minette, for appellant.
    Larry U. Sims, Mobile, for appellees.
   BLOODWORTH, Justice.

Appeal by appellant (plaintiff below) from a judgment and jury verdict for ap-pellees (defendants' below) after motion for new trial was overruled.

This action was commenced, and trial had, before the advent of the A.R.C.P. Prior to the taking of testimony in the case-in-chief, appellees filed a motion in limine, asking the court to restrain appellant’s counsel from making any comment before the jury concerning certain offers of compromise made by appellee City of Evergreen. The court granted appellee’s motion to which appellant duly excepted. Upon being questioned by appellant as to the scope of this ruling, the court responded by stating: “What I am saying is that I am not going to allow counsel for the plaintiff to go into any of the discussions back and forth with reference to compromise in this matter.” He added that the ruling applied only to the Mayor of the City of Evergreen.

The suit is for damages allegedly caused by appellees in wrongfully taking 182 pieces of silverware belonging to plaintiff from her house (Count One) and for damages allegedly caused by appellees in wrongfully and wantonly breaking into the house and trespassing thereon (Count Two). Six pleas were filed by appellees: the first is a plea of not guilty; the second, third and fourth are pleas of justification; the fifth is a plea of implied consent; and the sixth is a plea of governmental immunity. No demurrers were filed to the first five pleas. Demurrer was filed to plea six but no ruling was made thereon. Neither the final argument nor the oral charge refers to plea six.

The case was submitted to the jury on Count Two, Count One having been eliminated. After jury verdict for appellees-de-fendants, judgment was entered accordingly. When the motion for new trial was overruled, this appeal followed.

It appears from the evidence in this cause, that one Gene Hayes reported to the City of Evergreen that he observed a big stream of water running down a light fixture on the front porch at appellant’s unoccupied dwelling house in Evergreen. Representatives from the water and police departments were sent to the house by the City Clerk to check on the leak. Mr. W. C. McGowin, father of appellant, was called at his home at Bay Minette by the City Clerk and advised of the situation. The Clerk testified he told her to do what they could. He testified that he told her not to send anyone out to find the leak because the water was turned off. The witness left his home in Bay Minette and arrived an hour later at the house. In the meanwhile, employees of the city water department, accompanied by the Chief of Police, went to the home. They observed the leak and tried unsuccessfully to close the water valve. One employee entered the house by removing a screen over a sink in the kitchen and another entered by going in an upstairs window. One employee removed two doors from their hinges, replacing them later. The employees testified that they found the house badly disarrayed, magazines and drawers were in disarray and some drawers were pulled out of dressers. The city employees denied taking anything from the house or doing any of the damage for which appellant claims. The employees also testified that Mr. McGowin, appellant’s father, thanked them for what they had done in protecting the property, and wanted to fill out a “house check” authorizing the police to check on the house in the future. He did not appear upset or angry and demurred to the suggestion that he accompany the employees back to the house to let them show him what they had done. He said he had been in the house and everything was all right.

Appellant testified that she had been away for nearly three weeks. She said that keys to her house had been misplaced although she did not say appellees had taken them. She stated they could have been secured by an unauthorized person or persons. Silverware was missing although she admitted that she did not know who took it and that some of the missing pieces had been stolen several years before. She testified she personally thanked the City Clerk for calling her father.

Appellant presented an expert appraiser, C. W. Coleman, who was offered to show the damages to the house. He testified that he had never seen the house before January 13, 1970, the date of the incident, nor until two and one-half years after that date. He admitted his valuation was based on what others told him.

Appellant first argues that error was committed by the trial judge in granting appellees’ motion in limine.

Although conceding that offers of compromise are inadmissible, appellant contends that admissions against interest are not. She says that the trial judge should have heard all the evidence and then left it to the jury to determine whether the proffered testimony was a “compromise” or an “admission against interest.”

On the other hand, appellees argue that the ruling was correct because the testimony produced in support of the motion clearly shows that the material excluded was an inadmissible offer of compromise.

Appellees’ brief summarizes the testimony on this point as follows:

“ * * * Upon learning of the appellant’s claim, the Mayor called a special meeting of the Council of the City of Evergreen to consider the claim. The minutes of the meeting introduced during the hearing expressly state that appellant and her father were invited to the council meeting to inform it of any settlement she was expecting from the city; that appellant set forth her ‘demands for settlement’ from the city; and, whereupon, one of the councilmen moved to settle the claim with her on a specified basis but stipulated that ‘this settlement was not being offered as an admission of guilt on the part of any city employee’. A subsequent letter from appellant’s attorney set forth a counter demand for settlement which was an enlargement on the settlement offer previously made by city council during its meeting. (The additional items demanded were replacement or compensation for additional pieces of silver and burglar bars to be constructed over the entire house rather than just the ground floor.) The city through its attorney, then made its final offer of settlement in a letter from the city attorney to appellant’s counsel in which it was stated that the offer of compromise contained in the letter would remain open for a period of 30 days.”

Both parties cite 31A C.J.S. Evidence § 289 at pages 28-29 as authority for their respective positions, viz:

“Before the competency of an offer or statement is passed on, the preliminary question of whether it is an offer of compromise or an inseparable part of one, or an independent admission, must be decided. Ordinarily this question is, in the first instance, one for the court; and where there is no doubt that the proffered statement was an offer of compomise, it is error to submit the question to the jury.
“However, where the circumstances create a doubt as to the nature of the statement, the preliminary question is one of fact, and if the case is being tried before a jury, the statement may, and, it has been held, should, be received in evidence under instructions to the jury not to consider it if found to be a mere offer of compromise.” [Emphasis added.]

We agree with appellees that the first portion of the quoted section states the rule which governs us in this case and that it is clear that what is involved here is an offer of compromise which was properly excluded from the jury’s consideration. See also National Security Fire & Casualty Company v. Hodgin, 55 Ala.App. 268, 314 So.2d 871 (1975).

Appellant next contends that it was error for the court to sustain appel-lees’ objections to testimony by C. W. Coleman as to the amount of damages allegedly suffered by appellant and to refuse to give her charge number 2, relating to damages.

This Court has long held that where the jury has rendered a verdict for defendant, and plaintiff appeals, the error, if any, in sustaining an objection to testimony as to damages or in refusing plaintiff’s charges as to damages, is error without injury and cannot be made the basis for a reversal on such ruling. Coker v. Ryder Truck Lines, 287 Ala. 150, 249 So.2d 810 (1971); Graves v. Wildsmith, 278 Ala. 228, 177 So.2d 448 (1965); Roll v. Dockery, 219 Ala. 374, 122 So. 630 (1929).

Moreover, the plaintiff subsequently elicited the same testimony as to damages from another witness. Additionally, the witness was not clearly shown to be sufficiently acquainted with the property, and the alleged damages thereto, before the alleged trespass or immediately afterwards.

Finally, we hold that there was no error in the trial court’s overruling appellant’s motion for new trial. The rules governing our review in such instances are well known. See our recent decision in Hubbard Brothers Construction Company etc. v. C. F. Halstead Contractor etc., 294 Ala. 688, 321 So.2d 169 (1975).

Affirmed.

HEFLIN, C. J., and MERRILL, MADDOX, FAULKNER, JONES, ALMON, SHORES and EMBRY, JJ., concur.


author: SHORES, Justice.

text:
    RAY HUGHES CHEVROLET, INC., a corp. v. Sharon K. GORDON.
    SC 1107.
    Supreme Court of Alabama.
    Oct. 3, 1976.

      Cassady & Fuller, Enterprise, for appellant.
    Kenneth R. Cain, Ozark, for appellee.
   SHORES, Justice.

Sharon K. Gordon, appellee, brought suit against Ray Hughes Chevrolet, Inc., appellant, for damages resulting from the conversion of appellee’s automobile.

Sharon K. Gordon sued Ray Hughes Chevrolet, Inc., claiming $15,000 damages for the conversion of her 1972 Vega automobile. The complaint, as amended, claimed punitive damages in that amount. Defendant, by answer, denied the allegations of the complaint, asserted that it held the automobile under a lawful claim and filed a counterclaim for $216.62, claimed to be due by the plaintiff for work and labor performed by the defendant on her automobile. The jury returned a verdict in favor of the plaintiff in the amount of $14,783.38. The appeal is from a judgment entered in that amount.

The record indicates that Miss Gordon bought the automobile from Hughes in June of 1972 for a total price of $3,174.27. After the automobile had been driven some 11,000 miles, she experienced transmission trouble with the car and took it to Hughes for repair. There was some conversation at this time about whether the automobile was still under warranty, but Miss Gordon was informed that if it was not, the cost of repairs would be no more than $125.00.

When she returned for the automobile, the bill for repairs which was presented to her was $216.62. Miss Gordon testified, that she told employees at Hughes that she was surprised that the bill was so much, but arrangements were worked out whereby she was given 30 days in which to pay this amount.

Six days after this transaction, Miss Gordon again experienced trouble with the car and returned to Hughes Chevrolet. At this time, representatives of Hughes drove the car and told her that the trouble she had experienced with the car could not be fixed, that the trouble was due to the fact that the car was a four cylinder car and the trouble was just not repairable.

It was Miss Gordon’s testimony that she then prepared to leave and was informed by one Mr. Medley, the service manager, “ T am sorry, Miss Gordon, we can’t let you leave.’ ” It was her testimony that the service manager said: “ ‘You questioned our honesty and now we are questioning yours, and I have been given instructions to not let you leave until you pay your bill.’ ”

It was Mr. Medley’s testimony that he had been instructed by Mr. Hughes, president of the defendant company, not to let Miss Gordon have the car until the bill was paid. Mr. Hughes did not deny that those were his instructions. On the contrary, he testified that “ . . . I told them not to release that car without being paid for the bill.”

In arguing for reversal, the appellant insists that the trial court erred in denying its motion for directed verdict, and further erred in denying its motion for new trial. The thrust of appellant’s argument is that there is no evidence in the record to justify the jury in awarding to the plaintiff punitive damages. That contention is based upon the argument that punitive damages can be awarded only where there is evidence that the conversion was accompanied by insult, rudeness, malice or oppression, and appellant claims that the record is devoid of any evidence to indicate that any employee of Ray Hughes Chevrolet was rude or threatening in his dealings with Miss Gordon.

It is true that this court has frequently said that the award of punitive damages, while discretionary with the jury, is permissible where the evidence shows legal malice, willfulness, insult, or other aggravating circumstances. Russell-Vaughn Ford, Inc. v. Rouse, 281 Ala. 567, 206 So. 2d 371 (1968); Roan v. Smith, 272 Ala. 538, 133 So.2d 224 (1961).

However, it has never been stated that one must show, before a jury issue is made out on the question of punitive damages, that the intentional wrongful act must be accompanied by rudeness before punitive damages are allowable.

The Court of Civil Appeals was challenged on rehearing in Parker v. Sutton, 47 Ala.App. 352, 357, 254 So.2d 425, (1971), for the following statement contained therein:

“To such compensatory damages [awardable in a conversion case] the jury may add punitive damages if the trespass or conversion was willful, fraudulent, done in known violation of law or attended with circumstance of malice, insult or disregard of the rights or interest of the mortgagor [plaintiff].”; citing Roan v. Smith, supra; Russell-Vaughn Ford, Inc., supra.

In its opinion on rehearing, that court, speaking through Judge Wright, said:

“Until called to our attention by appellants in this instance we had not thought of the following quotation from the case of Roan v. McCaleb, 264 Ala. 31, 84 So.2d 358, as being in the conjunctive.
“ ‘If the conversion was committed in known violation of the law and of plaintiff’s rights with circumstances of insult, or contumely, or malice, punitive damages were recoverable in the discretion of the jury. (Emphasis Supplied).’” (47 Ala.App. at 359, 360, 254 So.2d at 431)

We have found no better statement of the law than the following, which we now adopt from Judge Wright’s opinion:

“Upon consideration now we do not conclude that the conjunctive is intended or required in the above quotation. It appears from a legal sense the statement is redundant rather than conjunctive. It would be difficult, if not impossible, to conceive of a conversion or a trespass committed in known violation of the law and of plaintiffs’ rights not to be accompanied by insult, contumely or malice. The ‘known,’ intentional and ‘willful’ violation of the law and of plaintiffs’ rights in and of itself is legal insult, contumely and malice. . . . ” (47 Ala.App. at 360, 254 So.2d at 431)

This is not to say that the conduct of the defendant accompanying a wrongful act has no evidentiary value. It is entirely appropriate for the jury in its assessment of punitive damages, if any, to consider any aggravating circumstances such as verbal insult, rudeness, etc., or the lack of such conduct. Indeed, evidence of this lack of personal abuse was properly admitted in the instant case. But the absence of any such aggravating circumstances does not legally invalidate the injured party’s claim for punitive damages based on intentional misconduct. To hold otherwise would contravene the long and well-established rule allowing punitive damages for wantonness when the wrongful act causing injury may be as impersonal as the intentional wrongful operation of an automobile.

In the instant case, there was evidence from which the jury could have concluded that the plaintiff’s automobile was converted by the defendant in known violation of her rights and in violation of the law. In fact,, the evidence is not contradicted that the defendant withheld her automobile from her because she had not paid the bill, which was not then due. Of course, it had no right to hold her automobile in payment of the bill, even had it then been due, having previously released it to her after the debt was incurred. With this latter proposition the appellant has no argument.

There is evidence in the record before us which justified the jury in believing that the plaintiff’s automobile was converted by the defendant, willfully and in known violation of her rights, or in reckless disregard thereof, authorizing in its discretion the award of punitive damages.

That being so, we find no error in the trial court’s refusal to grant a new trial on this ground.

Finding no error to reverse, the judgment appealed from is affirmed.

Affirmed.

HEFLIN, C. J„ and MERRILL, BLOODWORTH, MADDOX and JONES, JJ., concur.

FAULKNER, ALMON and EMBRY, JJ., concur in the result.


author: ALMON, Justice.

text:
    The STATE of Alabama v. B. B. WILLIAMSON, Jr., et al.
    SC 1216.
    Supreme Court of Alabama.
    Oct. 2, 1975.
    Charles A. Thigpen, Special Asst. Atty. Gen., Tuscaloosa, for appellant.
    Thomas F. Seale, Jr., Livingston, Phelps, Owens, & Jones, Tuscaloosa, for appellees.
   ALMON, Justice.

This is an appeal in a land condemnation case which originated in the Probate Court of Sumter County and was appealed to the circuit court.

Appellant, State of Alabama, filed a petition for an order of condemnation of some land belonging to appellees, B. B. Williamson, Jr., et al., on May 21, 1972. Thereafter, the petition was granted and commissioners were appointed.

On August 3, 1972, the commissioners assessed damages of $17,500.00 and on September 26, 1972, the probate court entered an order of condemnation. In October 3, 1972, appellant filed notice of appeal to the circuit court after which the probate judge ordered a copy thereof to be served upon the appellees.

The cause was called for trial on March 26, 1973, at which time appellees appeared specially. They filed a plea in abatement stating in substance that no notice of appeal was ever served upon them or their attorney as required by Tit. 19, § 17, Code of Alabama 1940, Recompiled 1958, and requesting the circuit court to abate and dismiss the appeal for lack of jurisdiction over the subject matter or the cause of action. Thereafter, on the same day it was filed, the court entered a bench note sustaining appellee’s plea in abatement.

On September 21, 1973, appellant filed a motion for the court to set the case for trial. The motion was set for hearing on October 8, 1973. On that date, after a hearing ore tenus, the court entered an order and set forth its findings that no appeal had been filed or perfected from the order entered on March 26, 1973, and that said order was a final order dismissing the attempted appeal of appellant from the order of the probate court. The court further found that the award of the probate court was final, that the cause was dismissed and terminated on March 26, 1973, and that, since no appeal was perfected, there was no case pending to be set for trial as requested by appellant. Accordingly, the court entered an order on October 8, 1973, denying and overruling said motion.

Appellant next filed its motion for relief from judgments or orders under Rule 60, and on September 17, 1974, the circuit judge entered an order overruling and denying the motion and ordered that the probate court pay over the condemnation proceeds to the appellees.

Notice of appeal to the Court of Civil Appeals was filed November 11, 1974. On April 8, 1975, the transcript was filed with the Clerk of the Court of Civil Appeals. Subsequently, the case was transferred to this court.

Cases involving condemnation of land for public uses are governed by Tit. 19, §§ 1-31, Code, supra. Tit. 19, § 23, states as follows:

“After final judgment in the circuit court or court of like jurisdiction, any party may, within thirty days thereafter, upon giving bond or security for costs, as in other cases, appeal to the supreme court.”

All appeals to the Supreme Court from a circuit court judgment in condemnation proceedings are governed by this statute, and not by the general six-month statute for bringing appeals. State v. Daw, 271 Ala. 650, 126 So.2d 493 (1961).

In the instant case, the proper time for an appeal would have been within thirty days from the date of the granting of appellees’ plea in abatement on March 26, 1973. Since appellant did not give notice of appeal within this period, the motion to dismiss the appeal is due to be and is hereby granted.

Appeal dismissed.

All the justices concur.


author: BLOODWORTH, Justice. BLOODWORTH, Justice.

text:
    C. F. HALSTEAD CONTRACTOR, INC., a corporation v. DIRT, INC., a corporation.
    SC 1085.
    Supreme Court of Alabama.
    Aug. 21, 1975.
    Rehearing Denied Oct. 2, 1975.

      Crenshaw & Minor, Montgomery, for appellant.
    Thomas A. Deas, Mobile, for appellee.
   BLOODWORTH, Justice.

This appeal involves the respective rights and obligations of a contractor and his subcontractor under a contract for the preparation'of a construction site. Appellant contractor (defendant below) appeals from a judgment rendered on a jury verdict for the full amount sued for by appel-lee subcontractor (plaintiff below).

Appellant, C. F. Halstead Contractor, Inc., is a general contractor who contracted to build a warehouse and building for Lowe’s Department Stores on Dauphin Street in Mobile. Appellee, Dirt, Inc., is a site contractor. Halstead negotiated a subcontract with Dirt under which Dirt was to install the site work for the project. Dirt agreed to remove unsuitable soil from the site (referred to as “undercutting”), to haul in sufficient dirt (referred to as “backfill”) to achieve the compaction necessary for construction, and to render other services necessary for the preparation of the construction site.

The parties initially considered contracting on a “unit price” basis. However, after determining that an “undercut” of one foot and a “backfill” of two feet should be sufficient, the parties finally contracted on a “cost-plus” basis with the compensation to Dirt to equal the amount of Dirt’s cost on the job plus a profit in the amount of IS percent of the cost, but with the total compensation not to exceed $50,000.00. The written contract stated that Dirt was to “[fjurnish all labor, materials, and equipment necessary to install the site work” and specified that the work to be performed was to include, but not to be limited to, an undercut of one foot.

After the work had commenced, the subcontractor, Dirt, discovered a spot where the soil was soft, requiring an undercut deeper than the one foot originally contemplated. Harrison, president of Dirt, informed Tatum, president of Halstead, of the necessity of a deeper undercut. Tatum authorized Harrison to undercut to whatever extent was necessary. It is from this authorization that the instant controversy has arisen.

Dirt contends that Tatum’s authorization of a deeper undercut constitutes a modification of the contract from its original “cost-plus” basis and that Dirt is entitled to additional compensation for the additional undercutting and backfill. Halstead contends that the authorization did not amount to a modification, that the additional work fell within the terms of the original “cost-plus” contract, and that no additional compensation was ever authorized.

Dirt’s substantiation of its cost consists solely of its records as to the number of truckloads of undercut and fill dirt which were hauled; Halstead contends that such records are relevant only in “unit price” contracting. Halstead maintains that one performing services under a “cost-plus” contract is under a duty to keep accurate, detailed records of actual expenses and is not entitled to compensation in the absence of such records.

At trial, the testimony clearly established the fact that an additional undercut was performed. However, the testimony was in conflict as to the quantity of additional dirt removed and the quantity of additional dirt used as backfill. Dirt’s records of the number of truckloads of dirt removed and added were at variance with the calculations of Dirt’s expert witness. On the bá-sis of measurements taken by “borings” at the site, the expert, a registered engineer, calculated the additional work to be significantly less than the amount of additional work reflected by Dirt’s records. (This conflict is largely due to a difference in the methods of apportionment between what was necessary to achieve the undercut of one foot and the additional undercut.) Halstead argues that, if the cost of the amount of the additional work computed under the expert’s calculations were billed on the basis of Dirt’s usual “unit price,” the additional cost would total only $3,903.10. Under the calculations based on its own records of truckloads, Dirt claimed $11,800.00 for the additional work. The jury awarded the full amount sued for. Halstead contends that the jury award is excessive.

In short, this appeal presents three basic issues for review: 1. whether there was sufficient evidence upon which the jury could find that Tatum’s authorization of additional undercut constituted a modification of the original contract; 2. whether a subcontractor who claims compensation under a “cost-plus” contract is entitled to payment in the absence of an itemization of its costs; 3. whether the jury’s verdict was excessive because it exceeded the amount testified to by the subcontractor’s expert witness and because it was rendered in the exact amount sued for.

1. On the issue as to whether there was sufficient evidence to find a modification of the original contract, Halstead cites Badders & Britt v. Davis, 88 Ala. 367, 6 So. 834 (1889) for the proposition, viz.:

“ * * * If he [defendant-owner] made no promise to pay, then the presumption arises that the alterations were agreed to be made, and were made, without extra charge.”

Halstead argues that there was no express promise to pay in the instant case, therefore the presumption is .that the additional work was performed without extra charge and that there was no effective modification of the contract.

We think the answer to this assertion lies in this Court’s holding in Bonie v. Griffin, 252 Ala. 299, 40 So.2d 870 (1949) where the Court said:

“ * * * It is no objection that no written contract or order covered these [additional] items, if the additional work was mutually agreed upon by the parties or done under circumstances implying mutual assent. * * * ”

Even more recently, we held in Huffman-East Development Corporation v. Summers Electric Supply Company, 288 Ala. 579, 263 So.2d 677 (1972) :

“[6] The extra work performed by Claburn was at the request of the appellants. The work and labor and material furnished thereto became a part of the permanent improvement of the apartment building and enhanced the value of the appellants’ property. Where one knowingly accepts services rendered by another and a benefit results, the law implies the promise to pay a reasonable value. Shirley v. McNeal, 272 Ala. 696, 133 So.2d 873.”

Looking to the evidence in the case at bar, we find that Harrison (Dirt’s president) testified as follows at trial:

“[W]e called Mr. Tatum [Halstead’s president] long distance at Montgomery; and I talked to him to start with and told him what we were confronted with, .and he asked me what my recommendation was. I told him that it looked to me like we were going to have to go six inches or more deeper to turn out a good job.”
* * * * * *
“Mr. Tatum told me, said, ‘Lamar, if you feel like that is what you have got to do to do it, do it, but just don’t go to the extreme with it.’ * * * ”
* * * * ' * *
“[O]n the way back to the job, I asked Mr. Tillman [Halstead’s superintendent] about that [getting written authorization], And, his words was this, he said, ‘The man told you to do it, do it. They are a good company to work for and he will do what he says he will do.’ ”

As we have already indicated, this Court in Bonie v. Griffin, stated that a written contract could be orally modified “if the additional work was mutually agreed upon by the parties or done under circumstances implying mutual assent.” 252 Ala. at 300, 40 So.2d at 872.

Here, the jury could have found Tatum’s consent to a modification to be implied from the circumstances, and the jury could conclude that Harrison’s purpose in seeking the authorization was to insure that, for any additional services rendered, the subcontractor would receive additional compensation. The jury could also infer that Tatum recognized Harrison’s request for authorization as impliedly including a request for the authorization of additional compensation.

In cases such as the present one, “[w]here, on appeal, the sufficiency of the evidence to support the verdict is at issue, only those tendencies of the evidence most favorable to the verdict are reviewed; and such inferences as the jury were free to draw are indulged.” W. T. Ratliff Company, Inc. v. Purvis, 292 Ala. 171, 178, 291 So.2d 289, 294 (1974). We cannot say that the jury’s verdict is not supported by the evidence.

2. Halstead further maintains that one who claims compensation under a “cost-plus” contract is entitled to payment only upon a showing of actual cost. It is undisputed that the subcontractor’s only showing of cost consists of its records of the number of truckloads of dirt transported. Although such proof may not be the most desirable means of establishing cost, we are unwilling to hold, as a matter of law, that the jury was not justified in finding such records to be sufficient to substantiate the subcontractor’s cost. In other words, we think the probative value of such proof is for the jury.

3. Finally, Halstead contends that the jury verdict was excessive. Dirt’s expert witness testified that his measurements showed that 1,606 cubic yards of additional “undercut” was made and that 1,946.03 yards of “backfill” was brought in. Hal-stead maintains that, on the basis of Dirt’s usual prices, this additional work would be billed at $3,903.10. However, Dirt’s bill was for $11,800.00, based on the number of truckloads of dirt involved.

Of course, the testimony of expert witnesses is not binding on the jury unless the subject is one exclusively within the knowledge of experts. Union Central Life Insurance Company v. Scott, 286 Ala. 10, 236 So.2d 328 (1970); Commonwealth Life Ins. Co. v. Harmon, 228 Ala. 377, 153 So. 755 (1934).

Although the expert’s testimony varied from that of Dirt’s president, Harrison, the latter himself was an experienced site contractor whose testimony the jury could reasonably regard as persuasive. The mere fact that the jury found Harrison’s testimony to be more credible than the testimony of the expert does not, of itself, indicate that the jury’s verdict was excessive.

Halstead makes a final contention that, since the jury returned a verdict in the exact amount sued for, this, of itself, indicates that the verdict was the result of “bias, passion, and prejudice.” We cannot agree. We have heretofore held that the mere fact the jury returned a verdict in the exact amount sued for is not of itself evidence of bias, passion, or prejudice. Crum v. McGhee, 289 Ala. 244, 266 So.2d 855 (1972).

Having disposed of the issues raised on this appeal favorably to appellee, it is unnecessary that we consider the appellee’s several motions to affirm.

Affirmed.

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

On Rehearing

BLOODWORTH, Justice.

In brief supporting application for rehearing, appellant Halstead insists that our original opinion is in error in four particulars :

“1. Failure to construe the written contract.
“2. Holding that authority to do necessary undercut changed a cost-plus contract to a unit price contract.
“3. Holding that as a matter of law proof of quantity fulfills the duty of a cost-plus contractor to keep accurate cost records.
“4. Permitting to stand, as not excessive, a verdict substantially greater than that justified under the uncontradicted testimony of the Plaintiff’s own expert witness.”

We think we have sufficiently answered contentions 2-4 in our original opinion, at least to our satisfaction.

With respect to contention 1, it is argued that we have tacitly approved construction of a written contract by the jury, contrary to the rule of our decisions. We think not.

It is, of course, fundamental in our law that it is the duty of the court and not the jury to “analyze and determine the meaning of a contract * * * when its terms are clear and certain, and also [to] ascertain whether or not it is ambiguous * * Air Conditioning Engineers v. Small, 259 Ala. 171, 176, 65 So.2d 698, 703 (1953) [Emphasis ours].

When, however, its terms are doubtful of meaning or the language is ambiguous, the pre-contract negotiations and conduct of the parties may be looked to by the jury as an aid in interpreting the contract. Air Conditioning Engineers v. Small, supra, where this Court held:

“ * * * if it [the contract] is found to be ambiguous, but not void for uncertainty, its meaning may be clarified by a consideration of the facts and circumstances aliunde and in pais, and when so it is the province of the jury to ascertain those facts and draw inferences from them which carries to the jury the whole issue upon proper instructions by the court.”

We think the terms of the contract in question here fall within the ambit of the rule of Air Conditioning Engineers v. Small, supra, and the issues here were properly submitted to the jury.

Opinion extended.

Application for rehearing overruled.

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


author: MADDOX, Justice.

text:
    Janice ERWIN, Administratrix of the Estate of Josie Mae Claypool v. Michael L. SANDERS et al.
    SC 1072.
    Supreme Court of Alabama.
    Oct. 2, 1975.
    Traylor, Baker & McGee, Fort Payne, for appellant.
    White E. Gibson, Jr., Birmingham, for appellees.
   MADDOX, Justice.

The jury returned a verdict for the defendants in a wrongful death action, which arose out of a collision between a car and a tractor-trailer. The speed of the car in which the deceased was riding as a passenger was a critical fact issue in the case.

Plaintiff, on appeal, substantially argues four assignments of error. Plaintiff says:

(1) The testimony of defendant’s expert, Andrew Payne, was admitted erroneously because Payne’s name had not been listed in the original or a supplemental response of the defendants to one of plaintiff’s interrogatories which asked for the names of all experts who would testify;

(2) Payne, the expert, was allowed to give his opinion, based on facts which were not in evidence;

(3) It was error to allow the expert to give his opinion of speed, since his opinion was based, at least in part, on the length of skid markers and all of the skid marks were not made before impact;

(4) An accident report should have been admitted for impeachment of the testimony of the expert.

First, we consider appellant’s argument that Payne should not have been permitted to testify since the defendants did not supplement their response to an interrogatory which sought the identity of each person expected to testify as an expert. Rule 26(e)(1), (2), ARCP. That rule provides :

“(e) Supplementation of Responses. A party who has responded to a request for discovery with a response that was complete when made is under no duty to supplement his response to include information thereafter acquired, except as follows:
“(1) A party is under a duty seasonably to supplement his response with respect to any question directly addressed to (A) the identity and location of persons having knowledge of discoverable matters, and (B) the identity of each person expected to be called as an expert witness at trial, the subject matter on which he is expected to testify, and the substance of his testimony.
“(2) A party is under a duty seasonably to amend a prior response if he obtains information upon the basis of which (A) he knows that the response was incorrect when made, or (B) he knows that the response though correct when made is no longer true and the circumstances are such that a failure to amend the response is in substance a knowing concealment.”

Plaintiff had asked, by interrogatory, what expert witnesses defendants would use. Defendants served an answer on March 4, 1974, naming one Henry G. Robinson. Plaintiff took Robinson’s deposition. The case was set for trial on Monday, March 18, 1974. On the Thursday prior to trial, while taking a deposition of a trial witness in Fort Payne, plaintiff’s counsel told opposing counsel that he was “considering getting an expert from Atlanta to testify.” On Friday night, March 15, defendant’s counsel first asked witness Payne, of Birmingham, to testify as an expert for the defense. Payne agreed.

At the call of the docket at 9:00 a. m. on Monday, March 18, defense counsel told counsel for plaintiff that Payne would testify. The case was assigned to Judge Windham on Tuesday at 10:30 a. m.

Plaintiff first objected to the use of witness Payne two and one-half days after the start of the trial, on grounds that Payne’s name was not revealed to plaintiff’s counsel in interrogatories, and that counsel had not had sufficient time to examine Payne to prepare for cross-examination.

Plaintiff claims “surprise” and contends that the exclusion of Payne’s testimony would not be too harsh a remedy in this case.

The defendants, in their argument, point out this delay on the part of the plaintiff in objecting to the use of Payne as a witness. They also- say that Payne lived in Birmingham and had been in the city from Monday, the 18th, until Thursday, the 21st, when he was called. “Clearly, in the circumstances, plaintiff’s attorneys had several feasible courses which they could have followed had they wished,” defendants argue. They also say that the plaintiff could have taken Payne’s discovery deposition on Monday at any time, announcing their readiness for trial at the call of the docket subject to that discovery. They say:

“This opportunity was available at all times before trial actually began. They could have requested that the case not be assigned by the case clerk to a trial division until they had obtained the deposition. They could have requested that the case be continued to permit them to take the deposition. At any time while the trial was in recess, at noon or in the afternoon on March 19, 20th or 21st, the deposition could have been taken. Counsel could have requested that the trial court adjourn for a sufficient time to permit the taking of Mr. Payne’s discovery deposition. For aught appearing they could have secured an expert with whom to rebut his expected testimony at some time during the four days available or during an adjournment or continuance requested. None of these steps were taken. Instead counsel waited until near the end of the testimony and at that point sought to deny the defendant the use of the witness.”

in short, defendants say that under the facts of this case, the trial judge did not abuse his discretion in permitting Payne to testify. We agree. It appears there is ample evidence to show that the defendants, faced with the possibility that the plaintiff would have a “live” expert at trial, would also seek, as a matter of trial strategy, to obtain expert testimony. Cf. Martella v. Great Atlantic & Pacific Tea Co. et al., 418 F.2d 1246 (3rd Cir. 1969); Texas & Pacific Ry. v. Buckles (Sth Cir.) 232 F.2d 257, Cert. den., 351 U.S. 984, 76 S.Ct. 1052, 100 L.Ed. 1498 (1956); Jackson v. H&S Oil Co., Inc., 211 S.E.2d 223 (S.C.1975).

We find no error nor abuse of discretion in permitting the expert witness to testify.

Appellant’s second argument is that “the trial court erred in allowing an opinion to be drawn from the accident report when it was not put in evidence.” We understand appellant’s argument to be that defendant’s expert based his testimony on facts which were contained in an accident report, and the report was not in evidence. We have read the hypothetical question and we believe the question did not have the expert assume a state of facts which were not in evidence by testimony of witnesses or by exhibits. We find no error here.

Appellant also claims that the expert’s opinion as to speed was based, in part, on testimony about the length of skid marks after impact. We do not understand the question to the expert was so hypothesized. As we understand the hypothetical question in the instant case, only the length of the skid marks leading up to the point of impact, not any beyond that point, were incorporated in the question put to Payne. It was hypothesized that the car in which the deceased was riding did travel ten to twelve feet beyond the far side of the trailer after impact, but as we understand the hypothecated facts, skid marks after impact were not mentioned. We find no error here.

The final point raised is that the accident report was admissible in connection with the cross-examination of the expert to impeach the testimony of the expert. We cannot agree. While a searching and sifting cross-examination is permitted, we determine that the trial court did not commit error in refusing to allow the admission of the accident report.

In the recent case of Nettles v. Bishop, 289 Ala. 100, 266 So.2d 260 (1972), this Court considered a legal question very similar to the one presented here. In Nettles, the plaintiff had sought damages for the death of his minor son, killed when his automobile collided with a tractor-trailer. There, this Court held:

“Contrary to the general rule, the trial court admitted in evidence, over plaintiff’s objection, the Alabama State Trooper’s accident investigation report. This admission occurred after the plaintiff’s witness, Mr. Snyder, who qualified as a reconstruction expert, testified that in forming his opinion as to what happened when the collision took place, he considered the facts appearing in the officer’s report. Defendant contended the report was admissible in connection with testimony of Mr. Snyder.
“Such admission was attended with the court’s oral instruction to the jury that they should consider only facts — physical facts — appearing in the report.
“The court further admonished the jury:
“ ‘ * * * There are also opinions in the report, opinions from state troopers, what they think, or what they speculated on. That is not evidence in the case. Don’t consider that part of this report. * * * 9
“We think that such instructions did not justify the court in admitting the report. It imposed on the jury the duty of casting about in the report, to sift the answers, and to determine therefrom which statement was a fact and which was an opinion. The line of demarcation between facts and an opinion is often quite thin and nebulous, leading to confusion and doubt. Admission of the report was error to reverse.”

We find no error in the trial court’s refusal to admit the accident report into evidence.

The judgment of the trial court is due to be affirmed.

Affirmed.

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


author: EMBRY, Justice.

text:
    Hardie JONES et al. v. Geraldine BALL et al.
    SC 1212.
    Supreme Court of Alabama.
    Oct. 2, 1975.

      Beck & Beck, Fort Payne, for appellants.
    Kellett & Scruggs, Fort Payne, for ap-pellees.
   EMBRY, Justice.

The action from which this appeal stems commenced with the filing of a statutory bill to quiet title by plaintiffs, Hardie Jones and wife. The bill alleged title in him derived from adverse possession to, and ouster of his cotenants, the defendants. Defendants’ answer denied title in him. They counterclaimed and prayed for sale and division of proceeds from sale of the property. The trial court denied relief to plaintiffs and granted relief to defendants on their counterclaim. Plaintiffs appeal from the judgment granting relief under that counterclaim. We affirm.

The property which is the subject matter of this controversy was originally owned by Thomas Jones. Upon his death in 1933, and the subsequent death in 1936 of his wife, their six children took title to the property as tenants in common. One of Jones’ sons, Hardie (plaintiff here), entered into possession of the property at that time. The record shows that he has been in continuous possession of the property since that time. At various times he has farmed, pastured, and collected rents on the land. In the judgment which granted relief under the counterclaim the trial court made the following finding:

“It is the opinion of the Court that the Plaintiffs have failed to carry the burden of proving title to the entirety by virtue of adverse possession. In fact, the Court is of the opinion that Plaintiff’s (sic) possession of the property in dispute has been with the express permission of the Defendants and their predecessor in title, and that Plaintiffs have failed to show an ‘ouster’ of the other cotenants. * * * ”

The issues presented for review by the eleven assignments of error: (1) Is the judgment contrary to the weight of the evidence? (2) Did the trial court err in failing to consider the question of laches as a bar to counterclaimants’ assertion of title ?

In Jenks v. Jenks, 292 Ala. 328, 334, 294 So.2d 147, 152 (1974), this court quoting from earlier cases said:

. . The possession of one tenant in common is prima facie presumed to be the possession of all, and it does not become adverse to the cotenants unless they are actually ousted, or, short of this, unless the adverse character of the possession of one is actually known to the others, or the possession of the one is so open and notorious in its hostility and exclusiveness as to put the other tenants on notice of its adverse character. (citation omitted)
“ ‘The mere fact that a cotenant in possession has taken all the rents and profits does not show ouster of his companions. (citation omitted)
“ ‘Mere lapse of time and payment of taxes by one cotenant are not, in tenancies in common, necessarily acts of dis-seisin. There must be an entry and continuous exclusive possession under a claim of exclusive right. Possession and use by one tenant in common will not, of itself, repel the presumption that the possession is that of all the tenants in common. The intent to hold as exclusive owner, repudiating the rights of co-tenants, must be established by proof and brought home to them. . . . ’ (citation omitted)”

The trial court’s findings on evidence adduced ore tenus is cloaked with a presumption of validity and will be disturbed only when manifestly erroneous. Almon v. Champion International Corp., 293 Ala. 727, 310 So.2d 207 (1975).

Under the rules as stated in Jenks we cannot say that the findings were erroneous. The evidence indicates that on two occasions Hardie Jones attempted to obtain the signatures of other cotenants on a deed conveying the property to him. This is indicative of a recognition of their rights. The tax assessments and tax receipts show that while Hardie Jones paid those taxes, the property was assessed as the “Thomas Jones Estate.” Further, we find evidence in the record from which the trial judge could properly conclude that Hardie Jones’ continued possession and use of the property and collection of rents was by permission of his cotenants. The evidence is ample to support the findings contained in the judgment of the trial court as well as the judgment itself. It is clear that the adverse claim of Hardie Jones was never brought home to the other cotenants. Jenks, supra.

The rights and remedies of counterclaim-ants are not barred by laches in this case.

“ ‘Where the question of laches is presented, the facts and circumstances of each case govern the court in the exercise of the discretion thereby invoked for the determination of the inquiry, (citation omitted)” Jenks, supra, p. 333, 294 So.2d p. 151, again quoting from an earlier case.

The judgment of the court does not, on its face, indicate consideration of the laches question. However, granting relief under the counterclaim necessarily resolved the question of laches adversely to plaintiffs.

“ ‘It has often been declared that mere delay which has resulted in no disadvantage to another or that has not operated to bring about changes in conditions or circumstances, in consequence of which “there can be no longer a safe determination of the controversy,” will not serve to bar complainant’s right or remedy. (citations omitted)”’ Jenks, supra, p. 333, 294 So.2d p. 151; Monte v. Montalbano, 274 Ala. 6, 145 So.2d 197 (1962).

The evidence in the record does not show a change in circumstances in this case which would bar the relief requested by counterclaimants.

Affirmed.

HEFLIN, C. J., and MERRILL, BLOODWORTH, MADDOX, FAULKNER, JONES, ALMON and SHORES, JJ., concur.

      . While not clear from the record, Thomas Tones apparently died intestate. Thus his property, subject to widow’s dower rights, descended to his children as tenants in common. Code of Ala., Tit. 16, §§ 1, 9.

      . Following the death of Thomas Jones in 1933, the taxes were paid by Ernest Jones until 1947, at which time Hardie Jones began paying the taxes.