author: BLOODWORTH, Justice. FAULKNER, Justice

text:
    WINN-DIXIE MONTGOMERY, INC. v. Bobby HENDERSON.
    77-629.
    Supreme Court of Alabama.
    May 4, 1979.
    Rehearing Denied June 8, 1979.

      Richard W. Whittaker of Pittman, Whit-taker & Hooks, Enterprise, and Robert C. Black of Hill, Hill, Carter, Franco, Cole & Black, Montgomery, for appellant.
    M. Dale Marsh and Joe C. Cassady of Cassady, Fuller & Marsh, Enterprise, for appellee.
   BLOODWORTH, Justice.

Winn-Dixie Montgomery, Inc., appeals from a $40,000 jury verdict in favor of Henderson. Winn-Dixie was successful on a prior appeal from a $14,000 jury verdict involving the same fraud claim. Winn-Dixie Montgomery, Inc. v. Henderson, 353 So.2d 1380 (Ala.1977). We reverse and remand.

The facts and the two fraud counts are set out in the prior opinion. Briefly, Henderson claims damages for alleged false and fraudulent misrepresentations by Winn-Dixie employees that he would be transferred to a store in Enterprise, Alabama. Relying on these representations, Henderson purchased for his wife a beauty shop in Enterprise. Later, after the promised transfer did not materialize, Henderson quit his job, sold the Enterprise business at a loss and started in farming and the chicken business with his father.

Count Four alleges fraudulent and false statements made with an intent to deceive, specifically, a promise made with the intent not to perform it. Count Five alleges representations known to be false at the time they were made, which were made willfully to deceive or recklessly without knowledge. Punitive damages were claimed under both counts.

The jury returned a verdict of $40,000 for Henderson. Both parties agree that the verdict included punitive damages. Winn-Dixie did not file a motion for new trial, but appealed from the judgment on the jury verdict.

There was no error in overruling the motion to dismiss both counts, either for failure to state a claim for relief or for failure to plead fraud with particularity. A motion to dismiss for failure to state a claim under Rule 12(b)(6), ARCP, should seldom be granted and is properly granted only when it appears beyond doubt that the plaintiff can prove no set of facts entitling him to relief. Jeannie’s Grocery v. Baldwin County Electric Membership Corp., 331 So.2d 665 (Ala.1976). This is not a case in which such a motion should have been granted.

We also find that the two counts set out the alleged fraud with sufficient particularity to comply with Rule 9(b), ARCP. The purpose of this rule is to give fair notice to the opposing party. Caron v. Teagle 345 So.2d 1331 (Ala.1977). Enough pertinent facts were pled by Hamilton to alert Winn-Dixie to the time and circumstances of the alleged misrepresentations and the contents of the alleged false statements, including the fact misrepresented or the promise made with no intention of performing it. See Progressive Casualty Insurance Co. v. Blythe, 350 So.2d 1062 (Ala.Civ.App.1977).

We do agree with Winn-Dixie that the cause must be reversed and remanded because the evidence supports neither the award of punitive damages nor some of the elements of compensatory damages.

On the issue of damages, Winn-Dixie contends:

(1) The verdict is excessive.

(2) The trial court erred in instructing the jury on punitive damages because there was no evidence to support punitive damages.

(3) The trial court erred in instructing the jury on certain interest payments made by Henderson and sought to be recovered as compensatory damages.

The question of the excessiveness of the damages is not before us on this appeal. There was no motion for new trial and thus no opportunity for the trial court to rule on the question of excessiveness, and no opportunity for Henderson to agree to a remittitur without the delay and expense of an appeal. The appellate courts of this state have the power to order a remittitur only when there is an argument that the judgment is excessive and when the sole ground for reversal is that the judgment is excessive. Code 1975, § 12-22-71. However, an excessive verdict cannot be reviewed under this section unless a motion for new trial was first made and acted upon by the trial court, Fallaw v. Flowers, 274 Ala. 151, 146 So.2d 306 (1962), or the trial court directed the jury as to an excessive award of damages. City of Anniston v. Douglas, 250 Ala. 367, 34 So.2d 467 (1948).

The reason for this rule is expressed in Central of Georgia Railway Co. v. Chambers, 197 Ala. 93, 96, 72 So. 351, 352 (1916):

“The following language of the court in Cook & Laurie v. Bell, [177 Ala. 618, 59 So. 273 (1912),] finds here direct application: ‘Where the amount of a verdict is not supported by the evidence, it can be corrected only by setting it aside on proper and timely motion by the party aggrieved. * * * If the practice of re-mittitur is to be made available, it is necessary that the trial court should be properly informed of this complaint against the verdict; and hence the motion to set aside should plainly challenge it as being excessive in amount. The question is not properly raised by an assignment merely that the verdict is contrary to the evidence, and hence the trial court cannot be put in error for overruling the motion.’
“The act of 1915 (Acts 1915, p. 610), [now Code 1975, § 12-22-71] relied on by appellant’s counsel, was not intended to confer upon this court jurisdiction to reverse a judgment of the court below, or to reduce the amount of the judgment as excessive, in the absence of any application to the trial court and ruling thereon inviting such review. In a case of this character on appeal this court is in the exercise of appellate jurisdiction only. While the language of the act of 1915 may not expressly so state, yet we think it quite clear that the act presupposes appropriate application to the trial court and action thereon. To construe it otherwise would confer upon this court original jurisdiction to grant a new trial, and such was clearly not the legislative intent. Upon the question of excessive damages, therefore, we have before us nothing to review.”

Accord, State v. Ferguson, 269 Ala. 44, 110 So.2d 280 (1959).

We now proceed to determine whether there was a scintilla of evidence to take the case to the jury on the issue of punitive damages. At the close of the trial court’s oral charge, Winn-Dixie’s counsel objected to that part of the charge dealing with punitive damages on the ground that punitive damages could not be awarded under the evidence presented. This was the same point mandating reversal in the prior appeal of this case.

It is clear that punitive damages may be awarded in a fraud case only when there is evidence from which the jury can conclude that the fraud was malicious, oppressive, or gross, and the statements were made with knowledge of their falsity. Old Southern Life Insurance Co. v. Woodall, 295 Ala. 235, 326 So.2d 726 (1976). It is only where “the evidence tends to establish an intent to deceive and defraud” that the evidence warrants the award of punitive damages. In that instance, the trial court must submit the issue to the jury, with the jury to determine the sufficiency of the evidence. J. Truett Payne Co. v. Jackson, 281 Ala. 426, 203 So.2d 443 (1967); Birmingham Waterworks Co. v. Keiley, 2 Ala.App. 629, 56 So. 838 (1911).

In the opinion on the previous appeal of this cause, we held that “[t]he evidence adduced at trial establishes, at most, that a misrepresentation was ‘made by mistake and innocently,’ which is, of course, actionable under [Code 1975, § 6-5-101]. However, it is clear that such an innocent misrepresentation will not support an award of punitive damages.” 353 So.2d 1380, 1383. In other words, on the first appeal, there was not a scintilla of evidence to support an award of punitive damages. Unless something new was presented at the second trial, our holding on the present appeal must be the same.

An examination of the record discloses that the only new evidence presented which is relevant to this issue is that Henderson’s supervisor, Mr. Lott, seemed “unhappy and irritated” when Henderson asked for the transfer and that Lott “kept Henderson on the job” during the busy Christmas and New Year’s season. Henderson argues, on this appeal, that it was of great benefit to Winn-Dixie to have him, as a trained employee, on the job during the busiest part of the year and that, in order to make sure he would be there, Lott falsely represented that Henderson would be transferred after the first of the year.

This additional evidence falls far short of establishing the requisite maliciousness, oppressiveness, or grossness justifying an award of punitive damages. Even judged by the strict standard of the scintilla rule, the issue of punitive damages should not have been submitted to the jury. It was reversible error to do so.

Winn-Dixie’s counsel also objected to the court’s oral charge for refusing to instruct the jury not to consider evidence of certain interest payments made by Henderson. These payments were made on notes given by Henderson to purchase some chicken houses after he quit working for Winn-Dixie. Winn-Dixie asserts that the interest payments did not flow as a natural consequence from the wrong, if any, which Winn-Dixie committed. We agree.

The general measure of recovery for fraud includes all damages within the contemplation of the parties or which are the necessary or natural and proximate consequences of the wrong. Fidelty & Casaulty Co. v. J. D. Pittman Tractor Co., 244 Ala. 354, 13 So.2d 669 (1943). This is a factual determination to be made by the jury. Ala bama Power Co. v. Guy, 281 Ala. 583, 206 So.2d 594 (1967). The Supreme Court generally will not disturb the decision of the jury on a fact question, even if a motion for new trial is made, because this Court indulges all favorable presumptions as to the correctness of the jury’s conclusion and will not disturb it unless it is plainly erroneous or manifestly unjust. Allred v. Dobbs, 280 Ala. 159, 190 So.2d 712 (1966).

We cannot ascertain whether the jury included the interest payments in the award of damages. It would be reversible error to have done so, however, because it is apparent from the evidence that the mortgages and interest payments were not within the contemplation of the parties when the alleged wrong occurred. Neither were they necessary or natural and proximate consequences of the alleged wrong. Henderson exercised his own independent business judgment when he quit his job with Winn-Dixie and bought the chicken houses. We cannot say that the interest payments were the proximate consequences of a false representation that Henderson would be transferred to Enterprise.

For the foregoing errors in the award of damages, this cause must be once again reversed and remanded.

REVERSED AND REMANDED.

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

FAULKNER, JONES and BEATTY, JJ., concur in part and dissent in part.

FAULKNER, Justice

(concurring in part and dissenting in part).

I concur in part and dissent in part. I concur to reverse on the issue of compensatory damages. I dissent on the issue of punitive damages.

The majority, reversing the jury and trial court, holds that the plaintiff did not present a scintilla of evidence on the issue of punitive damages to justify submitting that question to the jury. I disagree. Our cases hold that punitive damages may be awarded in a fraud action where

“. . . there is evidence from which the jury can conclude that the fraud was malicious, oppressive, or gross, and the representations were made with knowledge of their falsity. Hall Motor Co. v. Furman, 285 Ala. 499, 234 So.2d 37 (1970); Boriss v. Edwards, 262 Ala. 172, 77 So.2d 909 (1954); Treadwell Ford, Inc. v. Leek, 272 Ala. 544, 133 So.2d 24 (1961); J. Truett Payne Co. v. Jackson, 281 Ala. 426, 203 So.2d 443 (1967). Moreover, ‘. . . The imposition of punitive damages in cases of fraud and deceit is discretionary with the jury, acting with regard to the enormity of the wrong and the necessity of preventing similar wrongs. . . . ’ Loch Ridge Construction Co., Inc. v. Barra, supra, [291 Ala. 312, 320, 280 So.2d 745, 751 (1973)].” Old Southern Life Insurance Co. v. Woodall, 295 Ala. 235, 326 So.2d 726 (1976).

In Hall Motor Co. this Court observed, “If the evidence tends to establish an intent to deceive and defraud, it is difficult to see but that a fraud was committed grossly.” 285 Ala. at 504, 234 So.2d at 41. Here there was testimony that when Lott promised Henderson a transfer to Enterprise there were no openings in the Enterprise store. In addition, the evidence revealed a reason for Lott intentionally to mislead Henderson about the transfer, i. e., testimony from several witnesses established that it was of considerable benefit to Winn-Dixie to retain a qualified and experienced employee such as Henderson through the Christmas season, the busiest time of year in the grocery business. Thus, the jury could have found that Lott made the promise with knowledge of its falsity in order to keep Henderson on the job during the rush season. Moreover, the required “maliciousness, oppressiveness, or grossness” can be readily found in the testimony that Lott knew at the time he made the promise that Henderson was contemplating a substantial investment in a beauty shop in Enterprise. There were indications that Lott realized that the plans for the beauty shop had gone beyond the formulative stages and were ready for implementation if Henderson could rely on a transfer. Nevertheless, Lott made an unconditional promise to transfer Henderson, a promise which induced Henderson to take out a loan and purchase the beauty shop. Under the circumstances a jury could certainly believe that Lott’s failure to warn Henderson that the transfer was not definite was oppressive and gross, even if not particularly malicious. This evidence presented the required scintilla on the issue of punitive damages.

JONES and BEATTY, JJ., concur.


source: Caselaw Access Project

author: BEATTY, Justice. TORBERT, Chief Justice

license: Public Domain

text:
    ASSOCIATED INDUSTRIES OF ALABAMA, INC., an Alabama Corporation, et al. v. Robert BRITTON, as Commissioner, etc., et al.
    77-600.
    Supreme Court of Alabama.
    June 1, 1979.

      Fournier J. Gale, III and H. Thomas Wells, Jr., Birmingham, for appellants.
    Robert A. Huffaker, Montgomery, for ap-pellees.
   BEATTY, Justice.

This is an appeal from a decree upholding the constitutionality of the “Prison-Made Goods Act of Alabama” (Acts 1976, No. 286) and denying injunctive relief. We affirm.

The issues on this appeal are:

1. Whether the Act is unconstitutional; and

2. Whether the prison industries are being operated in violation of the Act.

1. The Constitutional Issues.

The pertinent provisions of the Act follow:

§ 14-7-7. It is hereby declared to be the intent of this chapter:
(1) To provide more adequate, regular and suitable employment for the vocational training and rehabilitation of the prisoners of this state, consistent with proper penal purposes;
(2) To utilize the labor of prisoners for self-maintenance and for reimbursing this state for expenses incurred by reason of their crimes and imprisonment; and
(3) To effect the requisitioning and disbursement of prison products directly through established state authorities without possibility of private profits therefrom.
§ 14-7-8. The Alabama board of corrections is authorized to purchase in the manner prescribed by law, equipment, raw materials and supplies and to engage the supervisory personnel necessary to establish and maintain for this state at the penitentiary or any penal farm or institution now or hereafter under the control of said board industries for the utilization of services of prisoners in the manufacture or production of such articles or products as may be needed for the construction, operation, maintenance or use of any office, department, institution or agency supported in whole or in part by this state and the political subdivisions thereof.
§ 14-7-13. (a) On and after August 13, 1976, all offices, departments, institutions and agencies of this state which are supported in whole or in part by this state and political subdivisions thereof shall purchase from the Alabama board of corrections all articles or products required by such offices, departments, institutions, agencies or political subdivisions of this state produced or manufactured by the said board of corrections with the use of prison labor, as provided for by this chapter, and no such article or product may be purchased by any such office, department, institution or agency from any other source, unless excepted from the provisions of this section as provided in section 14-7-14. All purchases made by state agencies shall be made through the finance department upon requisition by the proper authority of the office, department, institution or agency.
(b) Political subdivisions of this state may purchase directly from the board of corrections.
§ 44-7-16. In keeping with the primary objective of vocational training and rehabilitation of prisoners, the articles or products manufactured or produced by prison labor in accordance with the provisions of this chapter shall be devoted, first, to fulfilling the requirements of the offices, departments, institutions and agencies of this state which are supported in whole or in part by this state and, secondly, to supplying the political subdivisions of this state with such articles and products.
§ 14-7-22. (a) On and after August 13, 1976, it shall be unlawful to sell or offer for sale on the open market of this state any articles or products manufactured wholly or in part in this or any other state by prisoners of this state or any other state, except prisoners on parole or probation.
(b) Any person who willfully violates the provisions of subsection (a) of this section shall be guilty of a misdemeanor and, upon conviction, shall be confined in jail for not less than 10 days nor more than one year or shall be fined not less than $10.00 nor more than $500.00 or both, in the discretion of the court.

Although the point is not controlling we must observe that legislation has existed in this state for a number of years authorizing the operation of penal industries. See Alabama Code of 1940 (Recomp.1958), Tit. 45, § 10(9). The present Act readopts part of those provisions. Their existence is not unique; other states have strikingly similar laws; e. g., Ariz.Rev.Stat., § 41-1621 et seq.; Ark.Stat.Anno., § 46-235 et seq.; Colo.Rev.Stat., § 27-25-101 et seq.; as does the United States government. 18 U.S.C. § 4121.

The first issue of unconstitutionality concerns Sec. 93 of the Alabama Constitution of 1901 (as amended by Amendment 58):

The state shall not engage in works of internal improvement, nor lend money or its credit in aid as such, except as may be authorized by the Constitution of Alabama or amendments thereto; nor shall the state be interested in any private or corporate enterprise, or lend money or its credit to any individual, association, or corporation, except as may be expressly authorized by the Constitution of Alabama, or amendments thereto. .

The plaintiffs maintain that the Act offends this provision by contemplating the establishment of a competitive business enterprise, one which “may potentially yield revenue or profit” to the state. We have been cited to Opinion of the Justices, 237 Ala. 429, 187 So. 244 (1939) and Opinion of the Justices, 247 Ala. 66, 22 So.2d 521 (1945) for the test to be applied, i. e., whether the operation of the enterprise was designed to make a profit.

Consideration of those opinions, however, does not lead to the conclusion that the prison enterprises established under the Act are designed as profit-making operations. In Opinion of the Justices at 237 Ala. 429, 187 So. 244 we were concerned with legislation establishing state-operated markets for the sale of agricultural produce to the public. In that advisory opinion describing the bill as offensive to Section 93 it is obvious that this Court considered that its purpose was to authorize state government to engage in competitive business. Reference was made in that opinion to State v. Murphy, 237 Ala. 332, 186 So. 487 (1939) (upholding legislation establishing state liquor stores) for this Court’s analysis of Section 93:

The interest referred to [in Section 93] is a pecuniary interest in any private or corporate enterprise, and this prohibition was . . inserted in our organic law as a limitation upon the power of the legislature to again place our State in business enterprises and in competition with private individuals or corporations; or to undertake those things which ordinarily might, in human experience, be expected to be undertaken for profit or benefit to private promoters.

Applying this postulate to the enterprise at hand, clearly it is not constitutionally offensive under Section 93. The Act itself belies any purpose to operate the program for profit. Its stated intent is “self-maintenance” and reimbursement, not profit. Its announced “primary objective” is “vocational training and rehabilitation.” Sales upon the open market are prohibited. Thus it is neither a “business enterprise” nor one which ordinarily might be expected to be undertaken for profit. Cf. Opinion of the Justices, 256 Ala. 170, 54 So.2d 68 (1951). Indeed, the products may be sold only to state and local government agencies and, hence, cannot reasonably be viewed as creating a state interest in private or corporate enterprise.

The plaintiffs concede that Section 93 does not preempt the operation of the state’s police power; plaintiffs do assert, however, that this Act is not a legitimate exercise of that power. We cannot agree with that conclusion. The police power of the state is co-extensive with the public interest to be safeguarded, cf. Alabama State Federation of Labor v. McAdo-ry, 246 Ala. 1, 18 So.2d 810 (1944), and the employment of prison inmates in vocational and rehabilitative pursuits is directly related to public safety and welfare. Any “profit” seemingly generated through such an operation, whether used to purchase supplies or placed in the State General Fund, must be considered with the purpose of the Act that is, to rehabilitate the inmates and to reimburse the state. Speculation concerning the state’s profit-making potential in such an undertaking, we respectfully suggest, is not an acceptable substitute for evidence of profit (“gross” or “net”) itself after considering the cost of law enforcement and institutional operation. Although the record does contain evidence of sales volume and profit margins, that evidence does not establish expected profits to the State after allowing for those costs. Any concern for the generation of profit, we conclude, is a secondary consideration, the primary aspect of the legislation being well within the police power and, accordingly, constitutionally permissible. Murphy, supra.

Nor does the Act offend Section 69 of the Constitution. That section requires:

All stationery, printing, paper . used in the . . . departments of government shall be furnished and the printing . . shall be performed under contract, to be given to the lowest responsible bidder .

Section 69 does not purport to circumscribe the police power of the state; consequently the bidding requirement contained therein can have no application to prison-produced goods. Additionally, Section 69 simply changed the manner in which public printing was done, i. e., from being performed by a state printer chosen by the legislature to performance under contract. As stated in Brown v. Seay, 86 Ala. 122, 5 So. 216 (1889) (construing substantially the same provision in the Constitution of 1875) the provision is not self-executing but requires supplemental legislation regulating the public printing. It is significant that the existence of Section 69 has not been viewed by the Legislature as requiring competitive bidding on printing and supplies for the State Capitol Complex, for that body in 1973 enacted such a statute authorizing a printing operation by the State Finance Department. Code of Ala.1975, § 41-4-240, 241. It follows that the Legislature has exercised a similar option in this instance, further delineating the application of Section 69. Their action is consistent with the view implicitly contained in Brown v. Seay, supra, that Section 69 operates to require contracts when printing is performed for state government by private enterprise, but it does not preclude a state agency from performing printing services for another state agency.

The plaintiffs also contend that the Act violates the requirement of Section 45 of the Constitution that:

Each law shall contain but one subject, which shall be clearly expressed in its title .

It is argued that the operation of the Act goes beyond that expressed in its title, that it is overbroad, and that the title is misleading because it is unclear.

We have repeatedly held that this section must receive a reasonable construction so as not to cripple legislation by prohibiting the insertion of matters not included in the title but proper for the accomplishment of the object expressed. Kendrick v. Boyd, 255 Ala. 53, 51 So.2d 694 (1951). Accordingly, this requirement of the Constitution has received a liberal interpretation, Knight v. West Ala. Environmental Imp. Auth., 287 Ala. 15, 246 So.2d 903 (1971). Thus, when there is a fair expression of the general subject of the Act in its title, all matters reasonably connected with it properly may be incorporated in the Act and are germane to the title. Norton v. Lusk, 248 Ala. 110, 26 So.2d 849 (1946).

The title of the Prison-Made Goods Act is:

Relating to products made by inmates of the Alabama Board of Corrections and the sale of such products to state institutions, departments and agencies and to political subdivisions; to authorize vocational training and rehabilitation of prisoners through work in industries at penal units under the said Board of Corrections; requiring state agencies to buy prison-made products when specifications of standards and quality are met; authorizing political subdivisions to buy directly from the Board of Corrections; prescribing the method for setting prices of prison-produced products; specifying kinds of additional information to be contained in post-audit reports of manufacturing enterprises within the prison system; authorizing an industrial revolving fund for financing prison industries, and prescribing the disposition of receipts therefrom; making it unlawful to sell prison-produced products on the open market, and specifying penalties therefor.

After carefully comparing this title to the sections of the Act we fail to discern any merit to the plaintiffs’ objections. To the contrary, the title clearly expresses the general subject of rehabilitation of inmates by employment in vocational industries, and the sale of products so made as a financing method. The objection that the Act is vague because the state agencies required to purchase these goods under Section 4 are unascertainable, is simply untenable. Even if the description of those agencies is not free from ambiguity, that does not render the terms of the Act incapable of enforcement when a reasonable interpretation is available. City of Birmingham v. Samford, 274 Ala. 367, 149 So.2d 271 (1963); Jansen v. State, 273 Ala. 166, 137 So.2d 47 (1962).

Finally, the plaintiffs maintain that the present prison industries are being operated in violation of the Act because they are operating with funds derived from the general operating budget of the Board of Corrections rather than from the industrial revolving fund established by Section 13 of the Act (§ 14-7-19). This argument fails for two reasons. First, the revolving fund was legislatively restricted to funds generated by new industries established after the Act became effective. This conclusion is clear from Act No. 763, Reg.Sess.1976, Acts of Ala. at 1047, 1058-59 (the appropriations bill):

“If, at the end of any fiscal year, the unencumbered balance of the revolving fund exceeds $250,000, any further unencumbered balance in excess of $250,000 may be transferred to the Board of Corrections maintenance fund. This revolving fund herein provided for shall not involve industries currently operated by the Board of Corrections but shall apply only to those industries created as a result of SB 440.”

The record shows that, with one exception which necessitated no new funding and generated no funds, there were no new industries established by the Board of Corrections, hence there was no operation contrary to the legislative mandate of Section 13. Second, had there been any such noncompliance by the Board of Corrections, the plaintiffs’ remedy properly would have been affirmative relief compelling compliance, rather than the relief which plaintiffs requested, which was relief enjoining the Board from complying with the Act’s provisions.

Let the trial court’s decree be affirmed.

AFFIRMED.

MADDOX, FAULKNER, JONES, AL-MON, SHORES and EMBRY, JJ., concur.

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

TORBERT, Chief Justice

(concurring specially):

I concur in the result reached by this court. However, the purpose of the Prison-Made Goods Act requires emphasis. As stated in the opinion:

The Act itself belies any purpose to operate the program for profit. Its stated intent is “self-maintenance” and reimbursement, not profit. Its announced “primary objective” is “vocational training and rehabilitation.”

The Act is constitutional and in line with the previous decisions of this court only so long as the primary objective and the implementation of the Act are not to produce revenue or profit to this state from the sale of prison-made goods.

Section 14-7-20, Code 1975, concerning the disposition of proceeds from the sale of prison-made goods, delineates the sole uses for such proceeds:

[A]nd such moneys so collected and deposited shall be used solely for the purchase of raw materials, manufacturing supplies, equipment, machinery and buildings used to carry out the purposes of this chapter, and to otherwise defray the necessary expenses incident thereto . . .

The Board of Corrections may with full authority operate prison industries for rehabilitation purposes when any “profit” from such industries is used for self-maintenance. It must avoid, however, a surplus or profit margin in line with the opinion of this court that charges “ ‘shall be based exclusively upon the reasonable cost of operation and maintenance,’ ” Opinion of the Justices, 247 Ala. 66, 70, 22 So.2d 521, 525 (1945).

The provision in § 14-7-20 that in the event proceeds exceed maintenance and operation costs the excess will be transferred to the state general fund, does not signify an additional means for the generation of revenue for the state. The provision merely allows for disposal of excess proceeds. This is further apparent given the consideration that the revenue generating potential of the Act is a means and not an end to the purposes of the Act. As this court said in Sheppard v. Dowling, 127 Ala. 1, 10, 28 So. 791, 794 (1899):

[U]nder the police power the state has the undoubted right to provide such regulations, and the pecuniary interest which the state is supposed to have in the business through its subdivisions, is a mere necessary incident to the exercise of this undoubted power . . . (emphasis supplied).

The fact must be emphasized that the constitutionality of this Act withstands scrutiny because of its stated purpose of rehabilitation and reimbursement to the state and does so only when profit remains a mere necessary incident to the operation and maintenance of prison industries and not a primary motive.

BLOODWORTH, J., concurs.


author: BRADLEY, Judge.

text:
    STATE of Alabama v. TRI-STATE PHARMACEUTICAL, a division of Paramedical Supply Company, Inc., a corporation.
    Civ. 1738.
    Court of Civil Appeals of Alabama.
    April 4, 1979.
    Rehearing Denied May 16, 1979.

      Charles A. Graddick, Atty. Gen. of Ala., Herbert I. Burson, Jr., Counsel, Dept, of Revenue, and Asst. Atty. Gen. of Ala., B. Frank Loeb, Asst. Counsel Dept, of Revenue, and Asst. Atty. Gen. of Ala., for appellant.
    W. Stanley Gregory, Montgomery, for ap-pellee.
   BRADLEY, Judge.

The State Department of Revenue appeals from a decree rendered by the Circuit Court of Montgomery County holding that Tri-State Pharmaceutical’s sales of pharmaceutical drugs to hospitals were sales for resale or wholesale sales and therefore not subject to tax. We reverse.

Pursuant to Code of Alabama 1975, § 40-2-22, appellee Tri-State Pharmaceutical (hereinafter referred to as Tri-State) appealed to the Circuit Court of Montgomery County from nine final assessments entered by appellant Department of Revenue, State of Alabama (hereinafter referred to as the State). The trial court ordered that these nine cases be consolidated for trial. The pre-trial order and stipulation of facts filed in these cases provided for the disposition by agreement of the parties of all or portions of five of these cases. The present appeal by the State concerns only that portion of the lower court’s decree pertaining to the four final assessments involved in Civil Action No. CV-77-255 and Civil Action No. CV-78-177 (assessments of State sales tax); Civil Action No. CV-78-181 (assessment of City of Enterprise use tax); and Civil Action No. CV-78-179 (assessment of Covington County use tax). The amounts of these four assessments are not in dispute. At issue is the question of TriState’s liability vel non for these assessed amounts.

The parties to this appeal further stipulated below that:

Resolution of the issues surrounding the sales of pharmaceutical drugs by [TriState] to Coffee General Hospital, Enterprise, Alabama, which sales are the sole subject of the assessment appeal of which is made in Civil Action No. CV-78-181, will constitute resolution and determination of all other cases consolidated and not otherwise disposed of by this order and stipulation. Therefore, if the sales to Coffee General Hospital are determined to be exempt from the imposition of the sales or use taxes, this determination will control the disposition of all the other consolidated cases before this court not otherwise disposed of pursuant to this order and stipulation.

The facts involved in Civil Action No. CV-78-181, as set forth in the pre-trial order and stipulation of facts, are as follows:

Tri-State Pharmaceutical was, during the relevant taxable period, engaged in the business of selling pharmaceutical drugs to hospitals in Alabama. The amounts now in controversy following the stipulations set forth above are entirely concerned with sales of pharmaceutical drugs by [Tri-State] to hospitals located in Dothan, Elba, and Enterprise, Alabama. Tri-State made sales of drugs to Coffee General Hospital in Enterprise, Alabama, which hospital the parties agree to be representative of the vendees in question in all cases presently before this court. These sales were the subject of the assessment appealed from by . Tri-State in Civil Action No. CV-78-181. (Coffee General, like all of the hospital vendees in question in these appeals, is a private hospital; public hospitals are exempt from payment of sales and use taxes in Alabama). Following the sale of those drugs to Coffee General the drugs were administered to patients in that hospital. Those drugs were dispensed to patients by hospital personnel pursuant to either specific or standing orders of an attending physician. No prescription drugs of the type sold by Tri-State to Coffee General were dispensed to hospital patients without specific prescription or order from an attending physician. A charge for all drugs so prescribed and administered to each patient by Coffee General is listed as a separate item on each bill rendered by the hospital to the patient or the third party payor responsible for payment of the patient’s medical care bills. Included in the itemized charges to patients made by Coffee General for prescription drugs administered to patients are (a) the wholesale cost of the drugs (b) a charge to cover the costs of operation of the hospital pharmacy (including the pharmacist’s salary), (c) a charge to cover a contribution to general hospital overhead and (d) a return on the equity interest of the owners of the hospital. No sales tax is added by Coffee General to the charge made by it for drugs administered to patients.

The cases were submitted to the trial court upon the pleadings, trial briefs, exhibits and stipulation of facts agreed upon by the parties. The trial court on October 27, 1978 entered a decree in favor of Tri-State, absolving it from liability for the payment of the four contested assessments. The trial court in its written opinion framed the issue to be decided thusly: whether the sales of drugs by Tri-State, which drugs are subsequently administered by Coffee General Hospital to its patients in that hospital, are subject to sales or use taxation in Alabama as being “retail sales” or “sales for use or consumption,” or whether such sales are “wholesale sales” or “sales for resale” and therefore not subject to taxation.

The trial court correctly stated the applicable law as follows:

The City of Enterprise Use Tax is levied upon all storages, uses or consumptions of tangible personal property in the City of Enterprise. This tax is imposed pursuant to Act No. 917 enacted at the 1969 Regular Session of the Legislature of Alabama and City of Enterprise Ordinance No. 225-B. Pursuant to Act No. 917, the tax is parallel to the State Use Tax; therefore the question reduces to one of applicability of the State Use Tax. That tax is properly laid when there is a purchase of personal property at retail and that property is brought into the City of Enterprise and stored for use or other consumption but not for resale. Pursuant to Section 40-28-60(4) of the Code, all purchases of tangible personal property are deemed to be at retail, and therefore taxable, unless the purchase is a wholesale sale. If the purchase is at wholesale, the Use Tax is, by definition, inapplicable.
The Use Tax, as a complement of the Sales Tax, is a tax levied on, and is to be paid by or in respect of, the ultimate consumer of a product. State v. Thiokol Chemical Corporation, 46 Ala.App. 558, 246 So.2d 447 (1970). In defining what constitutes use or “consumption,” the Legislature has provided under [Code of Alabama 1975] Section 40-23-60(4)(a) that wholesale sales are not subject to the Sales Tax. Section 40-23-60(4)(a) further states that a wholesale sale “does not include a sale by wholesalers to users or consumers not for resale.”

Applying these principles to the stipulated facts, the trial court concluded that:

Tri-State made wholesale sales of drugs (as opposed to retail sales of those items) to Coffee General, since, as a matter of law, Coffee General, did not itself use or consume the drugs, but rather resold them to its patients. Therefore, no sales or use tax would be due to be collected by Tri-State from Coffee General and no City of Enterprise Use Tax would be due to be paid by Tri-State. Hospitals, infirmaries, sanitariums and like institutions are primarily engaged in the business of rendering services. They are not liable for sales tax with respect to their gross receipts from meals, bandages, dressings, drugs, X-ray photographs or other tangible personal property when such items of tangible property are used in the rendering of a hospital service. This is true irrespective of whether or not such tangible items are billed separately to their patients. Hospitals, infirmaries, and sanitariums are deemed to be the purchasers for use or consumption of such tangible personal property, and the sellers of these items to hospitals, infirmaries or sanitariums are required to collect the tax on sales of such property to hospitals.

The State contends on appeal, as it did below, that the sales by Tri-State to Coffee General Hospital were taxable retail sales because Coffee General uses or consumes the drugs in rendering services to its patients. In support of its contentions the State cites Sales and Use Tax Regulation H15-021 (adopted March 9, 1961; amended November 1, 1963), which provides in relevant part:

The State also cites a related departmental regulation dealing with Medicaid, M18-011 (adopted March 18, 1970; amended on November 9, 1970 and September 20, 1974), which states in relevant part:

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

It is an established rule of appellate review that where a case is submitted to the trial court sitting without a jury on the basis of pleadings, stipulations of fact, exhibits and trial briefs, and oral testimony has not been taken, the ore tenus rule of review does not apply; the findings of the trial court do not carry any presumption of correctness, and the appellate court must consider the evidence de novo in light of applicable legal principles. Sheehan v. Liberty Mutual Fire Insurance Co., 288 Ala. 137, 258 So.2d 719 (1972); Henderson v. Nationwide Life Insurance Co., 56 Ala.App. 329, 321 So.2d 671, cert. den. 295 Ala. 405, 321 So.2d 675 (1975).

We note further that the above-quoted Regulation H15-021 was adopted over seventeen years ago, and has been enforced without challenge since that time. It is an established rule of statutory construction that when a tax statute has been construed by the highest officials charged with the duty of administering the tax laws, such construction should be given favorable consideration by the courts, especially if such construction has stood unchallenged for a considerable time. East Brewton Materials, Inc. v. State, Department of Revenue, 45 Ala.App. 584, 233 So.2d 751 (1970), and cases cited therein. The weight to be given by this court to this principle is substantially increased when it is considered that the legislative history of § 40-23-60 (formerly Title 51, § 787) indicates that the statute has been either totally reenacted or amended by the legislature numerous times since the promulgation of the administrative interpretation. Id. Such action by the legislature may be considered legislative approval of the departmental construction. Haden v. McCarty, 275 Ala. 76, 152 So.2d 141 (1963); Crutcher Dental Supply Co. v. Rabren, 286 Ala. 686, 246 So.2d 415 (1971).

After careful consideration we have concluded that the State’s position is the better reasoned view. Hospitals are not in the business of selling drugs or other tangible personal property, but are primarily in the business of rendering services to their patients. Drugs and other items are purchased by them for use or consumption in the rendition of these professional services, and any transfer of the drugs by a hospital to its patients is but an incident to the services rendered. Consequently, the sales by Tri-State to Coffee General Hospital are “retail sales,” and sales tax is due to be collected by Tri-State as the retail seller.

We find support for our conclusion in Haden v. McCarty, supra; and Crutcher Dental Supply Co. v. Rabren, supra. In McCarty the Alabama Supreme Court approved the trial court’s holding that dentists are not engaged in merchandising, and that the supplying of dental prostheses is incidental to the professional service rendered by the dentist to the patient.

In Crutcher Dental Supply Co. our supreme court held that sales of materials used in the manufacture of dental prostheses by a dental supply company to laboratories and dentists were not wholesale sales. That opinion upheld the validity of a regulation which provided that such sales were retail sales and imposed on the dental supply companies the duty to collect and remit to the State the sales tax due on such sales.

In light of the analogous authority provided by these two cases, we are constrained to uphold the validity of the departmental regulation herein contested. We think the trial court erred to reversal in holding Regulation H15-021 invalid and in concluding that the sales of drugs by TriState to Coffee General Hospital were wholesale sales. Consequently, the judgment of the trial court is reversed and the case is remanded for entry of judgment not inconsistent with this opinion.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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


author: EMBRY, Justice.

text:
    Ex parte TRI-STATE PHARMACEUTICAL.
    78-570.
    Supreme Court of Alabama.
    June 22, 1979.
   EMBRY, Justice.

WRIT DENIED.

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


author: WRIGHT, Presiding Judge.

text:
    Dr. Elmer HESTER v. CLINIC MASTERS, INC., a Colorado Corporation.
    Civ. 1807.
    Court of Civil Appeals of Alabama.
    April 18, 1979.
    Rehearing Denied May 9, 1979.

      Clyde D. Baker, Guntersville, for appellant.
    Louis B. Lusk, of Lusk & Lusk, Gunters-ville, for appellee.
   WRIGHT, Presiding Judge.

This is an appeal from the granting of a motion to dismiss with prejudice an action for declaratory judgment.

Plaintiff brought suit in DeKalb County against Clinic Masters, Inc., a Colorado Corporation, alleging a written contract between the parties executed in 1970. The complaint alleged certain terms and conditions of the contract, and that certain of the benefits stated therein to flow to plaintiff were misrepresented and false and were useless and of no value when supplied to plaintiff; that plaintiff relied on the representation, executed the contract and had paid to defendant under the terms of the contract over one-third of the total amount due to be paid thereunder; that Clause 11 of the contract provided that the laws of Colorado should govern its interpretation and construction and that El Paso County, Colorado was deemed to be the place of execution of the contract and to have exclusive venue and jurisdiction in the event of litigation. Plaintiff then asked the court to declare Paragraph 11 null and void; that the entire contract be rescinded and defendant be required to return the money paid to it by plaintiff. A copy of the contract was attached to the complaint as an exhibit.

Plaintiff obtained service upon defendant by certified mail alleging jurisdiction under Rule 4.2(a)(2)(B), ARCP.

Defendant through its attorney filed a motion to dismiss stating as grounds: (1) the lack of venue and personal jurisdiction of defendant as shown by Paragraph 11 of the contract and recited in the complaint; (2) there was pending an action on the contract commenced by defendant against plaintiff in the District Court of El Paso County, Colorado prior to the institution of this suit. An amendment to the motion was subsequently filed, supported by affidavit of the attorney who brought the suit in Colorado. The motion to dismiss was first denied on August 22, 1977. A motion to set aside the denial was filed on September 1, 1977 and was set for hearing on the 14th of December, 1977. The hearing was reset for January 10,1978. We find no order setting aside the denial of dismissal, but find another amendment to the motion to dismiss filed July 26, 1978. That amendment contained a duly certified copy of a judgment of the District Court of El Paso County, Colorado, dated September 23, 1977. That judgment specifically found jurisdiction of plaintiff due to his having executed the contract in Colorado and due to the provisions of Paragraph 11 consenting to venue and jurisdiction. The judgment further stated that plaintiff was personally served in DeKalb County, Alabama, in accordance with the statutes of Colorado; that default judgment was entered against Dr. Hester and evidence taken supporting a judgment against him under the contract in the amount of $6,462.34 plus interest and costs. Based upon the judgment of Colorado, defendant urged dismissal on the ground of res adjudicata.

The motion to dismiss was set for hearing on December 13, 1978. The plaintiff filed a response containing allegations of law and unsworn fact, but without supporting affidavit or exhibit. After hearing and consideration, the motion to dismiss was granted without statement of a ground. If any ground urged in the motion to dismiss is valid, we will affirm and look no further. Locke v. Locke, 291 Ala. 344, 280 So.2d 773 (1973).

We will first determine if Paragraph 11 of the contract is a valid ground for dismissal. The parties to the contract were residents of different states. They agreed that jurisdiction of litigation would only be in the courts of Colorado. The courts of Colorado certainly had subject matter jurisdiction without any agreement. Though we find no decisions in Alabama holding such provisions in a contract invalid, it must be recognized that no agreement between parties may oust the jurisdiction of either person or subject of an Alabama court. Stokes v. Moore, 262 Ala. 59, 77 So.2d 331 (1955). However, it appears to be the better rule that if an agreement is freely made by the parties such as that contained in Paragraph 11 of the instant contract, another court which has jurisdiction and proper venue should decline to proceed with an action unless it is shown that to enforce the agreement would be unreasonable at the time of the litigation. Central Contracting Co. v. C. E. Youngdahl & Co., 418 Pa. 122, 209 A.2d 810, 816; Furbee v. Vantage Press, Inc., 464 F.2d 835 (1972). The burden of establishing the unreasonableness of the enforcement of the provision is upon the plaintiff when the issue is raised by a motion to dismiss. Central Contracting Co. v. Maryland Casualty Co., 367 F.2d 341, 345 (3d Cir. 1966). The fact that an action had already begun and been concluded by judgment in the agreed jurisdiction must be an element for consideration of the aspect of reasonableness, even without consideration of the defense of res adjudicata.

The courts of this state have recognized and enforced contractual agreements as to venue of prospective actions so long as there was subject matter jurisdiction. Hines v. Hines, 203 Ala. 633, 84 So. 712 (1920); Chandler v. Hardeman, 12 Ala.App. 572, 68 So. 525 (1915).

Defendant provided affidavit and exhibits in support of its motion to dismiss. Plaintiff admitted the truth of the evidence and offered no showing that the enforcement of his agreement was unreasonable. Having failed to carry his burden of proof, plaintiff does not show error in the granting of the motion to dismiss.

We pretermit consideration of whether defendant could present the affirmative defense of res adjudicata as a ground of a motion to dismiss. However, we observe that defense was also presented by defendant by answer and supported by a certified copy of judgment. Jurisdiction of the Colorado court is stated on the face of the judgment. The judgment of a court of a sister state having jurisdiction of subject and persons is due full faith and credit in Alabama. United States Constitution, Art. 4, Sec. 1; Zajac v. Zajac, 49 Ala.App. 637, 275 So.2d 154; cert. denied, 290 Ala. 372, 275 So.2d 159 (1972). In view of the admission by plaintiff that such judgment exists and his failure to support his claim of want of jurisdiction in the Colorado court, it would appear that surely at some point in the proceeding, defendant would be due summary judgment or judgment on the pleadings.

We also pretermit discussion of whether service upon defendant by certified mail under Rule 4.2(a)(2) was sufficient.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


author: ALMON, Justice.

text:
    Ex parte Dr. Elmer HESTER.
    78-542.
    Supreme Court of Alabama.
    June 22, 1979.
   ALMON, Justice.

WRIT DENIED.

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


text:
    Bernice LASSITTER v. Ethel LASSITTER.
    Civ. 1755.
    Court of Civil Appeals of Alabama.
    May 30, 1979.
    Robert H. Maxwell and Bert W. Rice, Atmore, for appellant.
    Joe B. Thompson, Jr., and Edward T. Hines of Garrett & Thompson, Brewton, for appellee.
   BRADLEY, Judge.

This is a divorce case.

The appeal is from a judgment divorcing the parties on the grounds of cruelty of the husband and incompatibility, and a property division. We affirm.

The parties to this proceeding are in their sixties and were married for about three years. Their principal income during cover-ture was from small social security checks and a farming operation. The wife participated in the farming operation along with the husband, as well as being a housekeeper.

The evidence shows that the wife brought to the marriage $10,000 in cash and certain items of household furnishings. The husband stated that he had about $13,000 in cash at the time of the marriage, several acres of farmland, a dwelling, a rental house, several vehicles and certain items of farm machinery.

The husband testified that the farming operation during the marriage years was a losing proposition and that he had about $240 in cash at the time of trial. The wife testified that the husband kept, in addition to their joint bank account, large sums of cash on his person and in the parties’ house. She further stated that the husband bought her a 1976 Ford LTD automobile in lieu of a ring.

The testimony shows the precipitating event that led to the separation of the parties and the ultimate dissolution of the marriage to be an incident that occurred in their house in July 1978 when the husband came home one afternoon and consumed intoxicating beverages, became involved in an argument with the wife, aimed a shotgun at her, and told her to “sit your god damn ass down in that god damn chair.” She left the house, went next door, called the police, and has not returned to the marital home since that date.

To begin, we would say that where a court in a divorce case hears evidence ore tenus, its judgment will be presumed correct and will not be overturned except for palpable abuse of discretion. Helms v. Helms, 50 Ala.App. 453, 280 So.2d 159 (1973).

Two issues raised by the husband on appeal are (1) whether the trial court abused its discretion regarding division of property; and (2) whether there were sufficient grounds for divorce on cruelty and incompatibility.

As to the issue concerning the division of the parties’ property, we said in Helms v. Helms, supra:

A division of an estate in a divorce proceeding is an adjustment of property rights and equities between the. parties as shall seem just by the trial court. Such a division does not require an equal division of the estate, but one graduated according to the nature of the case.

As related above, the parties both are in their sixties, both brought certain real and personal property to the marriage, both worked together during their marriage to acquire and accumulate other assets. The trial court, in effect, gave to the parties approximately what they brought into the marriage, and we find this to be an equitable division of the parties’ property.

Without additional recital of the evidence adduced in the case at bar, we are convinced there is sufficient evidence to support the charge of cruelty and incompatibility. Although there was no specific allegation of cruelty in the complaint for divorce, the trial court had the authority under ARCP 15(b) to grant the divorce upon unrequested grounds so long as there is sufficient support in the evidence for the decree. Cf.; Awad v. Awad, 54 Ala.App. 154, 306 So.2d 21 (1975) (granted additional unrequested relief of child support, alimony, division of property and attorney fees).

Rule 15(b) states in part:

When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues.

Additionally, the Comments to Rule 15(b) say in part:

[Wjhere evidence is introduced or an issue raised with the express consent of the other party, or without objection from him, the pleadings “shall” be deemed amended to conform to such evidence.

The trial court’s decree is without error, and we affirm it.

AFFIRMED.

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


text:
    BELTLINE, INC. v. Clarence POWELL.
    Civ. 1473.
    Court of Civil Appeals of Alabama.
    June 6, 1979.

      Richard W. Moore of Marr & Friedlander, Mobile, for appellant.
    Thomas M. Galloway, Jr. of Collins, Galloway & Smith, Mobile, for appellee.
   BRADLEY, Judge.

This appeal arises from a jury verdict assessing damages in the amount of $6,221 for the plaintiff-appellee, Clarence Powell.

A complaint was filed by Powell consisting of two counts. The first count claimed the defendant-appellant, Beltline, Inc. [hereinafter Beltline] and Ray Sumlin Construction Company owed him $6,506 for work and labor done and materials supplied at the defendants’ request at Place Levert. Count two claimed he was owed $350 for work and labor done and materials supplied at the defendants’ request at 160 South McGregor Avenue, Mobile Alabama. These allegations were answered as untrue and the defendants claimed they were not indebted.

Beltline filed a counterclaim demanding $6,500 as damages. The counterclaim stated Powell and Beltline entered into a contract and Powell agreed to put in asphalt driveways in Place Levert and Beltline agreed to pay $4,682 for the work. Furthermore, Beltline averred Powell agreed to do work according to plans furnished; Belt-line paid Powell $4,000; and Powell either failed or refused to complete the work, or so damaged the property that extensive repairs must be done to complete the job according to the plans.

Oral testimony reveals there was an oral contract between Beltline and Powell for the asphalt paving of a parking lot at Place Levert, a condominium project. Ray Sum-lin, a major stockholder in Beltline, said the agreed price for the work was between $4,700 and $4,800. Powell testified the agreed price for the Place Levert job was $4,853. Powell also agreed to pave a driveway at Dr. Martinson’s residence for $305.

Powell testified he never saw any plans or specifications for the Place Levert job. Mr. Sumlin testified he did not know whether plans had been delivered; but said Powell had access to the plans and Skelton, supervisor of the project, claimed there were plans on the jobsite.

Powell claimed Skelton called ali the shots on the blue top hubs that were set for the grading of the parking lot at the Place Levert job, and when the hubs were set he graded to the hubs. Skelton claimed he set only a few and was relieved of responsibility by his employer. Powell remembered nothing about Skelton being relieved and claims Skelton was with him the entire job.

Skelton said catch basins for water drainage were in before Powell began the job. Powell said that after he had graded one way, the catch basins were put in and he had to then totally change the grade.

Skelton testified curbs around a parking island were put in after Powell first paved the lot. Powell testified one or two days after he paved the lot the first time, cement trucks came in to put the curbs in and the asphalt gave way, thus causing ruts in the asphalt. Skelton testified the curbs were not put in the day after the initial paving because there is a certain waiting period for the asphalt; however, Skelton did not have any idea as to how long the waiting period was.

Powell said he fixed the places where the trucks had been and all the holes that were driven in the asphalt by “two by four” stakes used to make the curbs around the island. He further testified he had to go over the entire job a second time at Belt-line’s request, and used about the same amount of asphalt for the second job. Skel-ton testified Powell merely patched places where water stood in the lot.

A check from Beltline in the amount of $4,000, dated July 18,1974, made payable to Powell, was received by Powell after the work was done. Powell did not question the amount of the check at that time; although Powell testified he expected to be paid for the extra work he did. It is undisputed Powell never sent Sumlin an invoice for the amount of the extra work done.

Sumlin testified after Powell finished the job, there were water drainage problems. Water stood in the parking lot anywhere from an inch to an inch and a quarter. Beltline added another catch basin and pipe to help the drainage problem after Powell paved the lot the second time.

Powell’s opinion as to the reasonable value of his services performed in the “repairing” of the lot at Place Levert was that of the original contract price, namely, $4,853.

In regard to the Martinson paving job, Sumlin testified he did not pay Powell for it because Powell did a bad job. Powell said the job was done in a workmanlike manner and his men went back to put sealer over the job and to make a few changes.

An estimate of the costs for Beltline to fix the asphalt so it would drain correctly was set at $6,500.

At the close of the defendant’s evidence, Powell moved for a directed verdict. Such motion was denied.

The trial court gave instructions to the jury. Part of the instructions stated:

The Plaintiff has sued on a contract and for work and labor done. And, the Defendant has filed a counterclaim in the case.
If the Plaintiff performed this contract in a good and workmanlike manner then he would be entitled to recover the contract price agreed upon between the parties. The Plaintiff would also be entitled to recover extras; that is, extra work done by him. If such work was done either at the request of the Defendant or by actions or conduct of the Defendant necessitating extra work and accepted by the Defendant. Of course, the Plaintiff would not be entitled to recover for any extra work done by him, if the work should have been done in the first instance under any contract. [Emphasis added.]

He also told the jury they were entitled to award interest for either the plaintiff or the defendant at the rate of six percent per annum. An objection was made by the defendant, Beltline, to the instruction that a “suit had been filed for a contract . and for work and labor done.” The ground for objection was that the only count in the case was for work and labor done. Further objection was made to the charge that the “jury . . . could return a verdict . on the agreed price of the contract.” Ground for the second objection was the correct measure for work and labor cases is a reasonable value of the services performed.

Two issues come before us for review: (1) whether the trial court’s charge to the jury that the plaintiff had sued on a contract and for work and labor done was reversible error; and (2) whether the jury verdict was excessive and against the great weight of the evidence.

Beltline claims the instruction given the jury is erroneous and misleading. Beltline argues the complaint failed to allege contract and was never formally amended; therefore, the only count upon which Powell could recover is for “work and labor done.” Beltline further argues a special contract is not admissible to prove the reasonable value for work and labor done beyond the terms of the contract. Lastly, Beltline claims the instruction was correct as to the Martinson job because no recovery was sought for extra work on the job; therefore, contract price was admissible as to the Martinson job, but misleading as the Levert job.

This court notes Rule 51, ARCP, states in pertinent part:

At the close of the evidence or at such earlier time during the trial as the court reasonably directs, any party may file . written requests that the court instruct the jury on the law. No party may assign as error the giving or failing to give a written instruction, or the giving of an erroneous, misleading, incomplete, or otherwise improper oral charge unless he objects thereto before the jury retires to consider its verdict, stating the matter to which he objects and the grounds of his objection. Submission of additional explanatory instructions shall not be required unless requested by the court. [Emphasis added.]

We find Beltline made an objection in compliance with the above rule; however, there is a question raised in regard to whether we may review both of Beltline’s alleged errors, namely that the instruction was erroneous and misleading. Feazell v. Campbell, Ala., 358 So.2d 1017 (1978), held where instructions could mislead the jury, explanatory charges should be requested, and failure to make such a request disallows a party to complain of such a matter on appeal. Contra: Great Northern Land and Cattle, Inc. v. Firestone Tire and Rubber Co., Ala.Civ.App., 337 So.2d 1323 (1976) (held objecting party could claim error under Rule 51, ARCP, even though it did not file written requests before the court instructed the jury or after objection was made). In Great Northern, as in the instant case, no request was made by the trial court for explanatory charges.

At this point it becomes apparent that it has been unclear as to whether explanatory charges are necessary in addition to an objection made with the reasons therefor to preserve an alleged error in an instruction on appeal. This court notes, however, the recent case of Robinson v. Harris, Ala., 370 So.2d 961 (1979) in which the supreme court, in dealing with an alleged error of “incomplete” instructions, said an objection was sufficient to predicate reversible error on, and that Rule 51, ARCP, effects a change from former practice which had made the request for an explanatory charge necessary to preserve error on appeal. We will thus follow the Robinson case and review both errors claimed by Beltline in the instant case.

Rule 15(b) provides in part:

When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues.

Evidence of an oral contract was presented in this case without objection; the trial judge thus had a duty to determine the issue of whether a suit on contract by the plaintiff was presented. The court was not limited to the theory raised in Powell’s complaint. Cf. Underwriters Salvage Co. v. Davis & Shaw Furniture Co., 198 F.2d 450 (10th Cir. 1952) (trial without jury). Because evidence of a contract was before the court, the trial judge could instruct the jury as to a suit on contract, as well as a suit for work and labor.

However, Alabama case law allows a party to sue under the “common counts” where there is a special contract which has been fully performed on one side and all that is left is the payment of money. A party may then introduce the contract price to show the character of the services rendered, the length of time, and also the value of the services. Republic Steel Corporation v. Gilbert, 38 Ala.App. 227, 83 So.2d 370 (1955).

Thus, Powell could have sued on contract or under the common counts, as he originally chose to do, for both the Martin-son and Levert jobs. Evidence of an oral contract and contract price was presented as to both jobs without objection. In addition, it was undisputed that Powell was paid $4,000 of the agreed price on the Le-vert job. The judge’s instruction provided if the contract was found to be done in a workmanlike manner, Powell would be allowed to recover the contract price. It is unclear as to which job this specific instruction is referring or to which theory it is aimed.

We take note, however, that reversible error in the giving of instructions occurs only where the error is prejudicial when the trial court’s instructions are viewed as an entity. Underwriters National Assurance Co. v. Posey, Ala., 333 So.2d 815 (1976). After reviewing the instructions as a whole, it appears the judge was properly addressing an action on contract and/or under the common counts when he made the instruction on contract price recoverable. According to Howell v. Dodd, 229 Ala. 393, 157 So. 211 (1934), if a contract is made fixing the sum for services for work and labor then recovery is limited to the sum agreed upon, i. e. contract price. In regard to the extra, work, the judge said extras would not be awarded unless it was found the work was done in a workmanlike manner. He did not advise the jury as to the measure of recovery or as to the theory of a suit for extra work. However, it is established that where services of a person are knowingly accepted and a benefit results, the law implies a promise to pay a reasonable value. Huffman—East Development Corp. v. Summers Electric Supply Co., 288 Ala. 579, 263 So.2d 677 (1972). In the case at bar little evidence was introduced to show reasonable value of “extras” done, except for the original contract price of the Levert job. 98 C.J.S. Work & Labor § 65b(l) suggests all factors tending to throw light on the question of reasonable value of services, work and labor, or incidental materials, should be considered. Additionally, it is suggested where there is no express contract, the price paid a party on previous occasions for similar services is a proper matter to consider in ascertaining the reasonable value of work and labor.

In view of the foregoing, we find no error sufficiently prejudicial to warrant reversal.

In the absence of a motion for a new trial, Beltline cannot claim as error on appeal that the verdict was contrary to the great weight of the evidence or excessive. See: Leavell v. Nolin, Ala.Civ.App., 342 So.2d 1323 (1977) (dealing with weight of the evidence); Feazell v. Campbell, supra (dealing with excessive verdict).

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

AFFIRMED.

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


text:
    Myrtle ASHWOOD v. Charles ASHWOOD.
    Civ. 1731.
    Court of Civil Appeals of Alabama.
    June 6, 1979.

      Thomas R. McAlpine, Gadsden, Gary Smallwood, Anniston, for appellant.
    M. Douglas Ghee, Anniston, for appellee.
   BRADLEY, Judge.

The appeal is from a judgment denying a request for support under the Alabama Uniform Reciprocal Enforcement Support Act, i. e. §§ 30-4-80 through 30-4-98, Code of Alabama 1975, and granting a counterclaim for child custody.

In June 1977 the State of Pennsylvania filed on behalf of Myrtle Ashwood and her two minor children a petition under the Uniform Reciprocal Enforcement Support Act in the Circuit Court of Calhoun County, Alabama seeking support from the father and former husband, Charles Ashwood. The respondent father filed an answer denying any liability for support and then filed a counterclaim seeking custody of the older child. He alleged that he had been found not to be the father of the younger child.

After a hearing, the circuit court denied the request for support under the Act, and awarded custody of the older child to the respondent father. The mother appeals, the award of custody of the older child to the father.

The parties to this appeal were married in Philadelphia, Pennsylvania in November 1971. The wife continued to live in Philadelphia; the husband was in the United States Army and moved about from one assignment to another. The wife never accompanied the husband on these assignments.

The husband was stationed at Fort McClellan, Alabama in 1977 when the State of Pennsylvania, on behalf of the wife and two children, filed a petition asking that the father-husband be required to support them or contribute to their support so that the State of Pennsylvania could be relieved of all or a portion of the burden of supporting the respondent’s dependents.

The evidence showed that the respondent had been granted a divorce from the wife by the Circuit Court of Calhoun County in February 1977. The circuit court in its decree specifically held that the custody of the older child was not decided because the child was not in the jurisdiction of the court, but did require the father to pay to the mother $120 per month as support. At this time, the child was living with the mother in Philadelphia, Pennsylvania where she had always resided. The court also found that the husband was not the father of the younger child and had no responsibility for her. There was no appeal from this decree.

Prior to November 1977 the father had not visited his daughter except for three times in a five year period.

At the time of the filing of the petition seeking support from the father under the reciprocal support act, the mother and her two children were receiving public assistance from the State of Pennsylvania.

A copy of the counterclaim filed by the father in the support action was served on the Calhoun County district attorney, who was representing the State of Pennsylvania and the former wife, but the wife never received a copy of the counterclaim and had no notice that custody of the older child was to be an issue at the hearing; nor did she know of the hearing date. As a consequence, she did not appear nor attempt to defend the custody request made by the father. The court granted custody of the child to the father, and he then flew to Philadelphia where, without telling the mother the purpose of his visit, he took the child and returned to Alabama.

The mother then moved the Alabama court to set aside its order on the ground, principally, that she had no notice of the custody proceeding and had no opportunity to defend against it; moreover, she questioned the court’s jurisdiction over the matter in the face of § 30-4-88(e), Code of Alabama 1975. She also filed an action in a Pennsylvania court seeking custody of the child. The father was served and was represented by counsel in this proceeding.

In February 1978 the Alabama court voided its custody order and reset the matter for hearing on May 15, 1978. Pending the rehearing, the father was awarded temporary custody of the child. The child was still in Alabama with the father. Nineteen days after the Alabama court voided its original custody order, the Pennsylvania court awarded custody of the child to the mother.

The scheduled rehearing was held by the Alabama court on May 15, 1978 with all parties present and represented by counsel. On October 10, 1978, after the ore tenus hearing on May 15, 1978, the Alabama court awarded custody of the child to the father.

In her brief the mother contends that the trial court erred by permitting the father to file a counterclaim for custody in a uniform reciprocal support proceeding and that the trial court violated the full faith and credit clause of the United States Constitution by proceeding to try the custody issue in the face of the Pennsylvania custody decree.

The purpose of the civil proceedings authorized by the Alabama Uniform Reciprocal Enforcement Support Act (URESA) is to provide a simplified, fair and convenient way to cause those who are obligated to support their minor children to do so without having to be extradited to another state. O’Hara v. Floyd, 47 Ala.App. 619, 259 So.2d 673 (1972).

Petitions filed under URESA must be filed in the juvenile court, which has jurisdiction of all such proceedings. Code of Alabama 1975, § 30-4-88. The circuit court and the district court exercise original concurrent juvenile jurisdiction sitting as the juvenile court. § 12-15-2(a). By statutory requirement the juvenile court must keep a docket which is separate and distinct from any other docket kept in said court, and the orders and decrees of the court relating to such cases must be entered in a separate minute book. § 12-15-2(b). An aggrieved party may appeal from a final order, judgment or decree of the juvenile court to the circuit court for a trial de novo. § 12-15-120.

An express provision of URESA, relied upon by the mother, states that participation in any proceeding under the uniform act shall not confer upon any court jurisdiction of any of the parties thereto in any other proceeding. § 30-4-88(e).

The mother cites cases from other jurisdictions holding that the issue of custody may not be litigated in a URESA proceeding. E. g., Commonwealth ex rel. Posnansky v. Posnansky, 210 Pa.Super. 280, 232 A.2d 73 (1967); Thibadeau v. Thibadeau, 133 Ga.App. 154, 210 S.E.2d 340 (1974).

For other cases indicating that the only real issue in URESA proceedings is the duty of support, see, e. g., Vecellio v. Vecellio, Fla.App., 313 So.2d 61 (1975); Blois v. Blois, Fla.App., 138 So.2d 373 (1962); Grosse v. Grosse, Fla.App., 347 So.2d 1099 (1977).

The mother’s claim for support and the husband’s counterclaim were treated by the trial court as components of a single numbered action in the domestic relations division of the Calhoun circuit court. The mother’s claim for support was not docketed separately on the juvenile court docket as required by statute. The father’s counterclaim, filed in the support proceeding, was apparently treated by the trial court as a petition for modification of the original divorce decree.

Under these facts we cannot agree that the trial court erred in allowing the father to litigate the custody issue. His claim was filed and adjudicated in the proper forum, i. e. the domestic relations division of the circuit court which had earlier divorced the parties. The child whose custody was in issue was present in the jurisdiction. The mother was served properly pursuant to Rule 4, ARCP, and she appeared at the hearing represented by private counsel.

There does appear to be a serious doubt as to the validity of the adjudication of the mother’s URESA claim by the domestic relations division of the circuit court. If a lack of subject matter jurisdiction is apparent on the face of the record, the judgment is void and will be treated as a nullity. Louisville & N. R. R. v. Tally, 203 Ala. 370, 83 So. 114 (1919). However, since neither party has raised this issue, we need not reach it except to say that any jurisdictional defect of the proceedings below relates to the support claim rather than the custody claim.

The other principal issue raised by the mother concerns the application of the full faith and credit clause, U.S.Const. art. IV, § 1, to the proceedings below. Essentially the mother argues that the courts of this state should give full faith and credit to the Pennsylvania court’s March 23, 1978 award of custody to the mother. On that date the Calhoun court had already voided its earlier award of custody to the father, had awarded temporary custody only to the father, and had reset the matter of permanent custody for a later hearing. The mother cites Ex parte Buck, 291 Ala. 689, 287 So.2d 441 (1973) for the proposition that the pend-ency of the action in Alabama did not bar the Pennsylvania court from hearing the custody matter.

We agree that the Pennsylvania judgment is entitled to full faith and credit by the Alabama courts. This conclusion is in accord with decisions of the vast majority of jurisdictions in this country, Annot., 35 A.L.R.3d 520 (1971), and with decisions of the Alabama Supreme Court. See e. g., Sappington v. Fort, 258 Ala. 528, 63 So.2d 591 (1952), Hajovsky v. Hajovsky, 276 Ala. 77, 159 So.2d 194 (1963).

Having decided that the Pennsylvania court’s decree is entitled to extraterritorial effect, the issue to be further decided is what effect the Pennsylvania decree should have on the proceedings in the Alabama court. As we read the eases on this point, the decree of the sister state precludes a reexamination by the Alabama courts of the facts upon which the foreign state’s award was based. Lynn v. Wright, 34 Ala. App. 492, 42 So.2d 484, cert. den. 252 Ala. 606, 42 So.2d 490 (1949). Burns v. Shapely, 16 Ala.App. 297, 77 So. 447 (1917).

Rather, the effect of the Pennsylvania decree is to cause the Alabama court to focus its inquiry on the issues of whether, since the date of the Pennsylvania decree, there has been a sufficient change of circumstances to warrant a change of custody, Sappington v. Fort, supra, or whether in that period there has arisen an emergency as to the immediate welfare of the child such as would authorize the Alabama court to order a custody change. Hajovsky v. Hajovsky, supra; Lee v. Layton, 51 Ala. App. 298, 285 So.2d 108, cert. den. 291 Ala. 787, 285 So.2d 113 (1973).

It does not appear that the evidence adduced at the May 15, 1978 hearing was directed toward either of these issues. In the absence of evidence responsive to these issues the trial court, being bound to extend full faith and credit to the Pennsylvania decree, erred in ordering the change of custody.

Of course, in proceedings of this nature the paramount consideration is the welfare of the child, and a determination, whether by a Pennsylvania or an Alabama court, of what is now for the child’s best interests never becomes res judicata. See New York ex rel. Halvey v. Halvey, 330 U.S. 610, 67 S.Ct. 903, 91 L.Ed. 1133 (1947); and Atkinson v. Atkinson, 45 Ala.App. 428, 231 So.2d 753 (1970). Courts of equity are always open for the protection of minors. Watkins v. Brannon, 54 Ala.App. 424, 309 So.2d 464, cert. den. 293 Ala. 778, 309 So.2d 468 (1974).

For the reasons stated above, the decree of the trial court is reversed and the cause remanded for entry of judgment not inconsistent with this opinion.

REVERSED AND REMANDED WITH DIRECTIONS.

HOLMES, J., concurs.

WRIGHT, P. J., concurs in the result.


author: HOLMES, Judge.

text:
    STATE of Alabama v. Jeff S. GREEN.
    Civ. 1752.
    Court of Civil Appeals of Alabama.
    June 6, 1979.
    Charles A. Graddick, Atty. Gen., Herbert I. Burson, Jr., Chief Counsel, Dept, of Revenue, and Asst. Atty. Gen., John J. Breckenridge, Asst. Counsel, Dept, of Revenue, and Asst. Atty. Gen., for appellant.
    Wilburn Donald Bolton, Jr., and Julian B. Brackin, Jr., Foley, for appellee.
   HOLMES, Judge.

This is a tax case.

The State Department of Revenue assessed motor vehicle license taxes against the taxpayer’s tractors and trailer. The taxpayer successfully appealed the assessments to the Circuit Court of Baldwin County. The Department appeals.

The dispositive issue on appeal is whether the Department of Revenue may assess motor vehicle taxes against a nonresident vehicle owner who fails to properly display a license tag. We hold it may not and affirm.

The record reveals the following: While the evidence is in conflict, there is evidence that from October 1; 1976, until September 20, 1977, the taxpayer was a resident of Louisiana. He is in the motor vehicle freight hauling business and owned two tractors and a trailer.

The record further reveals that the taxpayer duly licensed his equipment in Louisiana in 1977. On February 11, 1977, the State issued a citation to the taxpayer for operating the rig on Alabama highways with expired Alabama tags. At the time of the citation, the taxpayer produced no proof that the vehicle was duly licensed in Louisiana.

The Department assessed the taxpayer for delinquent taxes as a result of the citation and the taxpayer appealed to the circuit court. After an ore tenus hearing, the trial court set aside the assessments.

On appeal, the Department initially contends that the taxpayer’s failure to properly display valid Louisiana motor vehicle license tags authorizes the State to assess Alabama motor vehicle taxes on the vehicle. We disagree.

At the outset, we observe that license statutes are strictly construed against the State and their application cannot be enlarged by implication. State v. Dr. Pepper Bottling Co., 26 Ala.App. 125, 155 So. 92, cert. denied, 228 Ala. 607, 155 So. 93 (1934).

Under § 40-12-262, Code of Ala. 1975, a nonresident may operate a commercial motor vehicle without paying Alabama license fees if the State Department of Revenue has a reciprocal agreement with the State of the nonresident, and the nonresident procures valid license tags from the state in which he resides.

A reciprocal agreement was in force between Alabama and Louisiana at all times pertinent to this action. It appears that under this agreement, there is no requirement that a vehicle owner display his license tags in any particular manner in order to avoid the license tax fees of another state such as Alabama. The agreement merely requires that the vehicle owner pay the taxes to the state of his domicile and procure valid license plates.

We further note that § 40-12-258, Code of Ala.1975, provides the appropriate remedy to the State in this situation. This section specifies a penalty for the failure to properly display license plates. Violations are considered misdemeanors which are punishable by fines. There is no provision in the code which expressly grants the Department of Revenue the power to assess taxes in addition to or in lieu of the statutory fine against one who has valid license plates from another state with which Alabama has a reciprocal agreement.

In the instant case, the record reveals that the taxpayer in fact procured Louisiana tags for his tractors, notwithstanding the fact that he failed to display them on his vehicle. Thus, it is clear to this court that, while there is no question that there was a violation of § 40-12-258 because of the failure to properly display the Louisiana tags, the taxpayer is not liable for the Alabama license fees which the State seeks to impose. Put another way, the State is not authorized under § 40-12-262 to levy a motor vehicle license tax in addition to or in lieu of the statutory fine set forth in § 40-12-258 where the taxpayer has valid license tags, but simply fails to properly display them.

The Department additionally contends that because its assessments are presumed prima facie correct on appeal, the taxpayer has failed to overcome the burden that the assessment is incorrect. See, e. g., Alabama Textile Products Corp. v. State, 263 Ala. 533, 83 So.2d 42 (1955).

The record indicates that at the hearing below, the taxpayer produced Louisiana Department of Public Safety registrations for his two tractors and these unquestionably established the fact that the vehicles were properly licensed at the time of the citation. In addition, the taxpayer orally testified, without objection, that he had likewise procured a similar registration for his trailer although he was unable to produce the registration in open court. Under the facts of this case, we are of the opinion that the taxpayer rebutted the presumption that the Department’s assessment was prima facie correct, particularly in view of the fact that the State failed to interpose an objection to the taxpayer’s testimony that his trailer was licensed or failed to produce evidence to the contrary. See, e. g., Phillips v. Langston, 17 Ala.App. 572, 88 So. 177 (1920).

In view of the above, this case is due to be affirmed.

AFFIRMED.

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


text:
    William Lamar BEALE v. Patricia Biggio BEALE.
    Civ. 1780.
    Court of Civil Appeals of Alabama.
    June 6, 1979.
    John L. Capell, III, Montgomery, for appellant.
    C. Lanier Branch, Montgomery, for ap-pellee.
   HOLMES, Judge.

This is a divorce case.

The husband appeals contending through able counsel that the trial court abused its discretion in the award of child support, alimony, and in its division of property. We find no such abuse and affirm.

This court determines that no useful purpose would be served by setting forth a detailed recitation of the facts. Suffice it to say that viewing the record with the attendant presumption of correctness, the following is pertinent:

The parties were married in 1953. Six children were born of the marriage, three of whom are minors.

The minor children and the wife reside in the marital home which is valued at $84,-000.

The husband is the manager of a profitable family corporation of which he is a 36% owner. The record indicates that he earns approximately $27,000 annually and in addition he receives company perquisites valued at several thousand dollars yearly.

The learned trial judge, after an ore ten-us hearing, awarded custody of the minor children to the wife and ordered the husband to pay $250 per week for their support. The court additionally in pertinent part awarded the wife $50 per week in alimony, the marital home subject to a $30,-000 vested interest in the husband, and the household furnishings. The husband contends that the trial court abused its discretion in this award because it is excessive.

With respect to the trial court’s division of property, it is well settled that such divisions need not be equal but must be equitable according to the circumstances of the case. Phillips v. Phillips, Ala.Civ. App., 344 So.2d 786 (1977). We find no inequities in this instance.

There is no fixed rule in calculating the amount of alimony and it is proper to consider the earning capacity of the parties, their future prospects, age, health, station in life, duration of the marriage, and the conduct of the parties with regard to the demise of the marriage. Elsevier v. Elsevier, Ala.Civ.App., 355 So.2d 382 (1978).

This court has carefully reviewed the record in this case and in view of the husband’s income and financial prospects, coupled with the demonstrated needs of his wife and family, we find no such abuse of discretion so as to require reversal. See Phillips v. Phillips, supra; 8 Ala.Digest Divorce Key 312.6(4). Where, as here, the trial court hears the testimony, its decree is presumed correct and it will not be overturned unless it is unsupported by or contrary to the evidence presented at trial. Roberts v. Roberts, Ala.Civ.App., 354 So.2d 21 (1978). In this instance, the trial court’s decree is not contrary to the evidence adduced at trial.

The wife has requested this court to award an attorney’s fee for representation on appeal. A fee of $500 is hereby awarded.

AFFIRMED.

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