author: BLOODWORTH, Justice.

text:
    The COASTAL BANK OF GEORGIA, etc. v. George A. LeMAISTRE et al.
    SC 2424.
    Supreme Court of Alabama.
    April 21, 1978.
    Rehearing Denied June 9, 1978.

      Turner, Turner & Turner, Tuscaloosa, for appellant.
    H. Vann, Waldrop of Hubbard & Wal-drop, Tuscaloosa, for appellees.
   BLOODWORTH, Justice.

The question on this appeal is whether (under Tit. 7, § 728, § 6-5-231, Code 1975) the judgment creditor Coastal Bank can redeem the property sold under mortgage foreclosure from the redemptioner LeMais-tre who effected his redemption more than six months after the sale when no redemption was made by anyone within six months of sale? The answer is no and we affirm.

The facts of this ease are as follows.

On May 20, 1964, Marion E. Weston and wife executed a real estate mortgage on the property to Pilot Life Insurance Company, which mortgage was assumed by Boyd L. Hobbs and wife on February 8, 1968. On November 22, 1974, Pilot Life Insurance Company foreclosed the mortgage and sold the property for $30,600 to Command Construction Company, the highest and best bidder. On December 23, 1974, Command Construction Company conveyed the property to Underwood, Hamner, and Boles for a consideration of $30,600.

Six months having passed, and no one entitled to redeem having sought to effect redemption by giving the notice provided for in Tit. 7, § 728 [now § 6-5-231, Code 1975], Underwood, Hamner, and Boles conveyed the property to George A. LeMaistre by statutory warranty deed, reciting a consideration of $10 and other good and valuable consideration. The record discloses that LeMaistre paid Underwood, Hamner, and Boles a consideration of just under $32,500, which included their purchase price of $30,-600, interest, and certain repairs. On June 13, 1975, George A. LeMaistre and wife executed a real estate mortgage on the property to Security Federal Savings and Loan Association of Tuscaloosa, Alabama. On June 3, 1975, LeMaistre acquired the redemptive rights of Boyd L. Hobbs and wife by a quitclaim deed. At that time, LeMaistre held a promissory note executed by Hobbs to him for $110,000. He testified that on May 23, 1975, he gave Hobbs a credit of $10,000 on the note in consideration of the quitclaim deed.

On November 21, 1975, Coastal Bank filed a bill to redeem from LeMaistre and Security Federal Savings and Loan Association, LeMaistre’s mortgagee. In its original bill, Coastal Bank claimed the right to redeem by virtue of its status as a judgment creditor of Hobbs. It alleged it had been unable to learn the exact amount of the debt and lawful charges, having been unsuccessful in locating Mr. LeMaistre, but offered to pay all lawful and correct charges, depositing with the Register of the Court the sum of $36,000. By amendment to the complaint, Coastal Bank offered to credit the debtor Hobbs upon its judgment (which it alleged was rendered against him on the “16th day of April 1976,”) the sum of $3,060, 10 percent of the amount originally bid under the foreclosure sale. (It is unclear from the record whether the judgment was rendered in “1976” as one certificate states or in “1974” as another certificate indicates.) After a trial, the court held that no redemption of the real estate was effected within six months from the date of the foreclosure sale and that George A. LeMaistre, as the vendee of the debtor, effected a redemption on May 30, 1975, more than six months after the date of the mortgage foreclosure sale, and that Coastal Bank’s attempted redemption from LeMais-tre was contrary to the provisions of Tit. 7, § 728 and was therefore ineffective. The court further held that Coastal Bank’s attempted redemption from LeMaistre did not comply with the provisions of Tit. 7, § 739, in that Coastal Bank did not pay or tender to LeMaistre the amount bid for such land with 10 percent per annum (together with all lawful charges) or offer to credit the debtor upon a subsisting judgment with a sum at least equal to 10 percent of the amount originally bid for the land.

We affirm the trial court’s judgment and hold that since no redemptioner had sought to establish his priority by redeeming within six months from the date of sale, re-demptioner LeMaistre did effect a lawful redemption, and, under the express provisions of § 728, ‘‘the property may not be again redeemed from said redemptioner.” [Emphasis supplied.] In view of this holding, it is unnecessary that we decide whether the trial judge was correct in holding that Coastal Bank’s attempted redemption was not in compliance with Tit. 7, § 739.

In order to fully understand our ratio decidendi, it is necessary to trace the history of our Alabama redemption statutes.

Prior to 1842, there was no statutory right of redemption. In Alabama, a “title state,” the foreclosure of a mortgage effectively cut off the mortgagor’s equity of redemption, and thereafter the mortgagor had nothing. In an obvious effort to relieve mortgagors of such strict forfeiture of title and to prevent the sacrifice of real estate, the legislature, in 1842, passed the first statute authorizing redemption of real estate. The right of redemption was limited to the debtor and to his bona fide creditors. Posey v. Presley, 60 Ala. 243, 250 (1877); Clay’s Digest, 502, § 1, § 2.

Chief Justice Brickell wrote for the Court in Posey v. Presley, supra, “The purpose of the statute is to prevent the sacrifice of real estate at forced sales under judicial process or decrees, or mortgages, or deeds of trust, and to afford the debtor, or his creditors, in payment of his debts, the advantage of any increase in the value of the lands, within the statutory period . . . but it is the benefit of the debtor, whose land is subjected to forced sale, the statute regards, and whatever of benefit enures to the creditor is for the relief of the debtor, and in satisfaction of the demand against him.”

In Clay’s Digest, § 1 provides for a two-year period for redemption to the debtor alone. Section 2, lying in juxtaposition thereto, allows the same right to “bona fide creditors.” It was not long after the statute’s enactment that the Supreme Court rendered its opinion in Thomason v. Scales, et al., 12 Ala. 309 (1847). The Court held that “bona fide creditors” are not creditors at large but are only such creditors as have reduced their debts or demands to judgment. 12 Ala. at 315.

We have already alluded to the fact that in Clay’s Digest only the debtor had the right to redeem in § 1, while the judgment creditor had the right to redeem in § 2. Section 1 was retained more or less in that form until the Code of 1896 when “junior mortgagee, vendee of the debtor, or assign-ee of the equity or statutory right of redemption” were added. Then, in the Code of 1907, the following were added, “wife, widow, child, heir at law, devisee, or any vendee or assignee of the right of redemption under this code,” and this section assumed its present form. See Mr. Justice Brown’s special concurrence in Malone v. Nelson, 232 Ala. 243, 248, 167 So. 714 (1936).

During the period from 1842 to the adoption of the 1923 Code it appears the practice “was more or less a race of diligence between junior encumbrancers as to effecting redemption,” as Mr. Justice Knight points out in Upchurch v. West, 234 Ala. 604, 608, 176 So. 186 (1937). “[A]nd it was no doubt for the purpose of abrogating the harsh rule then existing, which sanctioned this race of diligence, that the Legislature declared and fixed the order and priority in the assertion of the statutory right of redemption” as it did, in adopting §§ 10141 and 10142 as a part of the Code of 1923. Upchurch v. West, supra.

The “harsh rule” alluded to is expressed in this Court’s holding in Allison v. Cody, et al., 206 Ala. 88, 89 So. 238 (1921). The Court followed the rule of Francis v. Sheats, 153 Ala. 468, 45 So. 241 (1907) and held that, under the then existing redemption statute, the seasonable exercise of the right of redemption by a third mortgagee operated to invest such redeeming mortgagee with the indefeasible legal title to the land as against all intervening mortgagees. The Court wrote that “[o]ur statutory system of redemption, . . . does not confer upon one junior mortgagee the right to redeem from another junior mortgagee who has exercised the statutory right to redeem .” The Allison decision was rendered on April 21,1921, and it was thereafter that the legislature adopted the Code of 1923, writing in § 10141 and § 10142.

Our present Alabama redemption statutes are contained in Tit. 7, §§ 727-743 (now § 6-5-230 through § 6-5-246 Code 1975).

Section 727 provides that the debtor, junior mortgagee, vendee of the debtor, etc., may exercise the statutory right of redemption within one year from the date of the foreclosure sale. Section 728 provides for priorities and specifies how junior redemp-tioners give notice of their intention to redeem to senior redemptioners before doing so. In the final paragraph of § 728, it is further provided that:

“Where no redemption is made as provided in this section within six months from the day of sale, anyone entitled to redeem may do so thereafter without giving notice provided for herein, and the property may not be again redeemed from said redemptioner." [Emphasis supplied.]

The plain and obvious meaning of the last sentence of § 728 is that, where no redemption is made within six months from the date of sale, notice does not have to be given by a junior' redemptioner to a senior redemptioner if he waits to redeem until the six months has passed, and then no other such redemptioner may redeem from him.

Moreover, this is the clear holding of our cases. In Upchurch v. West, supra, the Court held, viz:

“Our recent case of Long et al. v. King, 233 Ala. 379, 171 So. 738, recognized that section 10141 of the Code [Tit. 7, § 728, Code 1940; § 6-5-231, Code 1975] wrought a change in the existing law as to assertion of the statutory redemption between the several parties upon whom the statute conferred the right, and in construing this statute we held that within the year [now six months] immediately following the sale there could be no race of diligence between the different persons upon whom the statute conferred the right to redeem, but after the expiration of the year [six months] any one could redeem and secure thereby an indefeasible title. The holding in the Long Case, supra, lends support to the conclusions here reached, certainly it in no wise conflicts with anything held herein. In that case a junior mortgagee, having failed to timely exercise his prior right to redeem, lost his right to an heir who had redeemed after the expiration of the year, but before the lapse of the two years.” [Emphasis ours.]

Appellant agrees as to the foregoing construction but states that this construction is limited to that class of redemptioners set out in § 727, namely, the debtor, junior mortgagee, vendor of the debtor, etc. In other words, appellant concedes that neither the debtor, junior mortgagee nor vendor of the debtor (under the facts in this case) could redeem from another in the same class of redemptioners set out in § 727. But, appellant would say that its purported redemption, as a judgment creditor under § 735, falls into a different class. Appellant reads § 7S5 as giving it, as a judgment creditor, a right which no one named in § 727 possesses.

We think the appellant’s interpretation is erroneous. The primary purpose of our redemption statutes is for the benefit of the debtor. It is to give the debtor first, and then the others mentioned, the advantage of any increase in value of the lands during the period allowed for redemption after the sale of the property. Posey v. Presley, supra. As Chief Justice Brickell wrote in that case, “. . . it is the benefit of the debtor, whose land is subjected to forced sale, the statute regards, and whatever of benefit enures to the creditor is for the relief of the debtor, and in satisfaction of the demand against him.”

If the redemption statutes are fundamentally for the benefit of the debtor and his vendee (appellee), why would the judgment creditor (appellant) be given a greater right than that accorded the debtor himself and his vendee?

The answer to this question lies in the plain meaning of the redemption statutes — the judgment creditor stands in no higher position than the debtor who has the paramount right to redeem and the debtor may, .as he has done in this case, convey his privileged position to his vendee, Mr. LeMaistre.

Thus, the purported further redemption from LeMaistre by Coastal Bank must fail because of the express provisions of the last sentence of Tit. 7, § 728.

AFFIRMED.

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

FAULKNER, J., dissents.


source: Caselaw Access Project

author: EMBRY, Justice. MADDOX, Justice

license: Public Domain

text:
    Anita K. GRANTHAM v. Don DENKE and Bobby Hamon. Henry L. COXSON v. Don DENKE and Bobby Hamon. Robert W. BRANNON v. Ray FAULKNER.
    SC 2542, SC 2543, SC 2544.
    Supreme Court of Alabama.
    May 5, 1978.
    Rehearing Denied June 9, 1978.

      Lanny S. Vines and Lydia M. Quarles of Emond & Vines, Birmingham, for appellants.
    E. Ted Taylor, Prattville, amicus curiae. W. Lee Pittman of London, Yancey, Clark & Allen and Jack J. Hall of McDaniel, Hall, Parsons & Conerly, Birmingham, for appellees.
   EMBRY, Justice.

Each of the appellants was injured on the job and each claimed in her or his action for damages that her or his injuries were proximately caused by the negligence of a co-employee. In each case the complaint was dismissed for failure to state a claim upon which relief could be granted because of the provisions of the 1975 amendments to § 312, Tit. 26 (Alabama Workmen’s Compensation Law), Code 1940 [Act No. 86, 4th Ex.Sess., § 10, p. 2748, Acts of Alabama, 1975]; now codified as § 25-5-11, Code 1975. The part of that code section here pertinent reads:

“Section 10. Section 312, Title 26, Code of Alabama 1940, as last amended, is hereby amended to read as follows:
“Section 312. Liability of party other than employer and procedure governing.
“Where the injury or death for which compensation is payable under article 2 of this chapter was caused under circumstances also creating a legal liability for damages on the part of any party other than the employer whether or not such party be subject to the provisions of article 2 of this chapter the employee, or his dependents in case of his death, may proceed against the employer to recover compensation under article 2 of this chapter, or may agree with the employer upon the compensation payable under article 2 of this chapter, and at the same time may bring an action against such other party to recover damages for such injury or death, and the amount of such damages shall be ascertained and determined without regard to article 2 of this chapter; provided, however, neither an officer, director, agent, servant or employee of the same employer nor his personal representative, nor any workmen’s compensation insurance carrier of the employer, nor any officer, director, agent, servant or employee of such carrier, nor any labor union, or an official or representative thereof, making a safety inspection for the benefit of the employer or its employees, shall be considered a party other than the employer against whom such an action may be brought * * *” (emphasis added)

In these appeals the issue is whether Section 13, Constitution of Alabama, 1901:

“That all courts shall be open; and that every person, for any injury done him, in his lands, goods, person, or reputation shall have a remedy by due process of law; * * * ” (emphasis added),

restricts the power of the legislature, by enactment of the 1975 amendments to § 312 (§ 25-5-11, Code 1975), to bar an injured employee’s negligence action for damages against her or his co-employee.

Unless limited by the state or federal constitutions, the power of the legislature is plenary (derived from the people, as elected representatives thereof). Alabama State Federation of Labor v. McAdory, 246 Ala. 1, 18 So.2d 810 (1944). The constitution of this state is the supreme law and limits the power of the legislature. Alexander v. State, 274 Ala. 441, 150 So.2d 204 (1963). Since it was clearly the intention of the legislature, by enactment of the code section under examination, to eliminate an injured employee’s action against her or his fellow employee, if the injuries were also covered under the Workmen’s Compensation Act, the question is clearly presented regarding whether there is any limitation on the power of the legislature to do so imposed by § 13 of our state constitution.

We think that power is thus limited and will hold the immunity of a co-employee from suit by an injured employee unconstitutional.

The question of immunity of co-employees from suit by an injured employee has not heretofore been challenged on the basis of conflict between that immunity and the rights of the injured employee preserved by § 13, Const.1901, after enactment of the Alabama Workmen’s Compensation Act.

To permit the Workmen’s Compensation Act by means of the 1975 amendments to § 312 to immunize a co-employee from suit by an injured employee would deprive him of rights and remedies he enjoyed under the common law which are preserved under § 13 of our constitution. The Act, adopted in 1919, is a voluntary substitute for the common law, Alabama Employer’s Liability Act, and other statutory rights of action for personal injuries against the employer applicable to those who elect to come within its provisions. Gentry v. Swann Chemical Co., 234 Ala. 313, 174 So. 530 (1937). It is this elective option between employer and employee, the parties being free to accept or reject to operate under and abide by the Act, that reconciles the Act with § 13 of the Constitution. Chapman v. Railway Fuel Co., 212 Ala. 106, 101 So. 879 (1924). The election is made upon the basis of a quid pro quo between employer and employee. Each voluntarily gives up rights guaranteed by § 13 in exchange for benefits or protection under the Workmen’s Compensation Act.

The quid pro quo is solely between employer and employee. The employee retains his right to sue third parties, including co-employees. An election by the employee to be bound by the provisions of the Act was an election to “surrender * * * rights to any other method, forms, or amount of compensation or damages” from the employer. Act No. 245, Reg.Sess., § 10, p. 208, Acts of Alabama, 1919. Section 32(1) of the 1919 Act stated the right to sue third parties, although it prohibited the injured employee from suing the co-employee while at the same time receiving compensation benefits from the employer. In 1947 the legislature removed this restriction to allow the injured employee to receive benefits and at the same time sue “any party other than the employer.” This court in construing the 1947 amendment to allow suits against co-employees quoted the following: “ ‘To hold a co-employee is not a person other than an employer would be the equivalent of saying an employee is an employer * * *.’ ” United States Fire Insurance Co. v. McCormick, 286 Ala. 531, 243 So.2d 367 (1970). Strong support for the logic of this reasoning, if not self evident, is the definition of employer found in the Act:

“* * * The term ‘employer’ as used herein shall mean every person * * * who employs another to perform a service for hire and to whom the ‘employer’ directly pays wages * * *” Tit. 26, § 262, Code 1940; § 25-5-1(4), Code 1975; Downey v. Bituminous Casualty Corp., 349 So.2d 1153 (Ala.1977); 1919 Ala. Acts No. 245, § 36, p. 237.

In response to McCormick the legislature, in 1973, amended § 312 (§ 25-5-11, Code 1975) to provide: “* * * neither an officer, director, agent, servant or employee of the same employer nor his personal representative * * * shall be considered a party other than the employer * * In Childers v. Couey, 348 So.2d 1349 (Ala.1977), the validity of the enactment of this amendment was challenged. This court held that the amendment was enacted by the legislature in a constitutional manner, but we did not address the issue of the constitutionality of the provisions of the amendment. It should be noted that McCormick dealt with the construction of the 1947 amendment to § 312 and no issue was raised, or addressed, regarding whether construing the amendment to permit suits against co-employees was merely declaratory of the common law rights of the injured employee as they existed before its enactment and as preserved by § 13 of our constitution. Section 13 would command the construction given the 1947 amendment; as it commands the invalidity of the 1975 amendments to § 312. To hold that the legislature can include a co-employee’s negligent act within the provisions of the Workmen’s Compensation Act, thus immunizing the active wrongdoer from suit by the injured employee, would be contrary to the plain language of § 13. It would say that a co-employee is an employer. This we cannot do. See McCormick, supra. Also such a holding would be no deterrent to negligent work performance upon the part of one’s fellow worker and thus defeat the desired aim of the law to promote safety on the job.

We find persuasive authority for our decision in these cases in the law of Arizona. Section 6, Article 18 of the Arizona Constitution is essentially the same as § 13 of our constitution. Section 6 provides:

“* * * The right of action to recover damages for injuries shall never be abrogated, and the amount recovered shall not be subject to any statutory limitation.”

Arizona’s Workmen’s Compensation Act is also elective. Under the mandate of § 6 of their constitution the Arizona Supreme Court held there is no immunity of co-employees from suit because of the Arizona Workmen’s Compensation Act. Kilpatrick v. Superior Court, 105 Ariz. 413, 466 P.2d 18 (1970); Halenar v. Superior Court, 109 Ariz. 27, 504 P.2d 928 (1972).

In Kilpatrick, the Arizona court was presented the question of whether the Arizona constitution permitted the legislature to forbid negligence actions of injured employees against their fellow employees. Answering no, that court held an employee had a right of action against a fellow employee for injuries incurred in the course of his employment. The court reasoned:

“There is no room for quibbling. The language of Section 6 is simple, explicit and all-inclusive. It cannot be misunderstood. Without limitation it confers the right to recover damages for injuries as existing under the common law. The rights so protected include not alone the right of action against an employer on his vicarious liability but a right against the actual wrongdoer, the person who committed the negligent act which caused the injury.”

There is no distinction in the reason for that court’s conclusion based on § 6 of the Arizona Constitution than our conclusion that § 13 of the Alabama Constitution preserves a right of action of the injured employee against her or his co-employee as well as preserving a remedy for enforcement of that right. The right existed at common law against both employer and co-employee. Enactment of the Workmen’s Compensation Act may provide an elective substitute for the remedy of enforcement against the employer in governance of the relationship of employer-employee. It may not deprive the injured employee of rights against the co-employee, the actual wrongdoer, for it offers no elective substitute remedy for enforcement of these rights. Nor is there any perceived social evil to be eradicated by legislative exercise of the police power as was the case regarding our motor vehicle guest statute (§ 95, Tit. 36, Code 1940; § 32-1-2, Code 1975).

Shortly after the Arizona court’s decision in Kilpatrick, the Arizona legislature amended their Workmen’s Compensation Act to provide:

“The right to recover compensation pursuant to the provisions of this chapter for injuries sustained by an employee shall be the exclusive remedy against the employer or any co-employee acting in the scope of his employment * * *” A.R.S. § 23-1022, subsec. A.

In Halenar, supra, the Arizona court was presented the question of the constitutional validity of immunity of co-employees from suit in view of the adoption of the above amendment. It reiterated the basis of its decision in Kilpatrick, and held unconstitutional that part of § 23-1022 which purported to prohibit an employee from suing a co-employee acting in the scope of his employment, saying:

“We concluded that a court could .'not constitutionally interfere with the common law right of an employee to sue a fellow employee and, of course, the legislature is bound by the same constitutional limitations.”

The reasoning of the Arizona Supreme Court in holding the legislative grant of immunity to co-employees to be violative of their constitution is of compelling logic when applying reason and logic to the effect of the language of § 13 of our constitution to the challenged amendments to § 312 of our Act. An injured employee’s recovery of workmen’s compensation benefits from her or his employer may not abrogate the remedy for recovery of damages for injuries the result of negligence of one other than his employer.

We therefore conclude that § 13, Constitution of Alabama, 1901, limits the power of the legislature to enact the 1975 amendments to § 312, Tit. 26, Code 1940 (§ 25-5-11, Code 1975) which would bar negligence actions for damages by an injured employee against her or his co-employees. Those amendments violate § 13 and cannot have their intended effect.

This being so, the judgments of the trial court dismissing the complaints of appellants for failure to state a claim upon which relief could be granted are accordingly reversed and remanded.

REVERSED AND REMANDED.

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

MADDOX, J., dissents with an opinion with which TORBERT, C. J., concurs.

MADDOX, Justice

(dissenting),

The result reached by the majority has an appeal — that of making an injured party whole — but in reaching that result, the majority not only has done great violence to the rules which govern how this Court has traditionally interpreted constitutional provisions, but has possibly unwittingly destroyed not only co-employee immunity from suit by a fellow employee, but has also destroyed employee immunity from suit by his subrogated employer and its carrier.

The 1975 Amendments are Constitutional

The principles this Court has traditionally employed in determining the constitutionality of a legislative Act was summarized in Alabama State Federation of Labor v. McAdory, 246 Ala. 1, 18 So.2d 810 (1944):

«* * * Uniformly, the courts recognize that this power [to strike down a legislative act as violative of the constitution] is a delicate one, and to be used with great caution. It should be borne in mind, also, that legislative power is not derived either from the state or federal constitutions. These instruments are only limitations upon the power. Apart from limitations imposed by these fundamental charters of government, the power of the legislature has no bounds and is as plenary as that of the British Parliament. It follows that, in passing upon the constitutionality of a legislative act, the courts uniformly approach the question with every presumption and intendment in favor of its validity, and seek to sustain rather than strike down the enactment of a coordinate branch of the government. All these principles are embraced in the simple statement that it is the recognized duty of the court to sustain the act unless it is clear beyond reasonable doubt that it is violative of the fundamental law. .
“Another principle which is recognized with practical unanimity, and leading to the same end, is that the courts do not hold statutes invalid because they think there are elements therein which are vio-lative of natural justice or in conflict with the court’s notions of natural, social, or political rights of the citizen, not guaranteed by the constitution itself. Nor even if the courts think the act is harsh or in some degree unfair, and presents chances for abuse, or is of doubtful propriety. All of these questions of propriety, wisdom, necessity, utility and expediency are held exclusively for the legislative bodies, and are matters with which the courts have no concern. This principle is embraced within the simple statement that the only question for the court to decide is one of power, not of expediency or wisdom. . . . ”

I think the 1975 amendment is rationally related to some valid legislative objective. Prior to 1947, Alabama’s Workmen’s Compensation Statute effectively prevented an employee from suing a negligent fellow worker when the injured employee accepted the statute’s benefits. This was accomplished by having the injured employee elect between the compensation offered by his employer or a cause of action against a third party. United States Fire Insurance Co. v. McCormick, 286 Ala. 531, 243 So.2d 367 (1970); Baggett v. Webb, 46 Ala.App. 666, 248 So.2d 275 (1971). When the legislature repealed Title 26, § 311, in 1947, and amended § 312, the legislature removed the election requirement as it concerned co-employees. Thus, Alabama was left to follow the general rule which allows an injured employee to sue a negligent co-employee when there is no express legislative mandate to the contrary. United States Fire Insurance Co. v. McCormick, supra; Frantz v. McBee Co., 77 So.2d 796 (Fla.1955).

The legislature’s response to this Court’s holding in McCormick is somewhat typical to that made in other jurisdictions. See Annotation 21, A.L.R.3d 845, 864.

Appellants correctly point out that one of the purposes of the compensation statute is to require industry to bear part of the burden of disability and death resulting from the hazards of industry. Pow v. Southern Construction Co., 235 Ala. 580, 180 So. 288 (1938). However, contrary to what the appellants argue, this is not the sole purpose for upholding the validity of workmen’s compensation acts, in my opinion. This Court quoted from a New York opinion in one of its earliest decisions upholding the Workmen’s Compensation Statute as a valid exercise of the state’s police power, as follows:

“ ‘It protects both employer and employee, the former from wasteful suits and extravagant verdicts, the latter from the expense, uncertainties, and delays of litigation in all eases, and from the certainty of defeat if unable to establish a case of actionable negligence.’ ” Chapman v. Railway Fuel Co., 212 Ala. 106, 101 So. 879 (1924).

The majority cites Gentry v. Swann Chemical Co., 234 Ala. 313, 174 So. 530 (1937), for the proposition that the Workmen’s Compensation Act was a substitute for causes of action for personal injuries against the employer. I do not read Gentry that way. It appears to me that Gentry focuses on the type of injury and how it was caused as opposed to who caused it. There, this Court said:

“It is not a matter of doubt, that the Workmen’s Compensation Act, in general, was intended as in the nature of a substitute, between master and servant who elect to come within its provisions, for actions of tort — for personal injuries at common law — and under the state Employer’s Liability Act, or other statute giving the employee a right of action. Chapman v. Railway Fuel Co., 212 Ala. 106, 101 So. 879.
“However, in the light of the provisions of Section 13, of the Constitution of 1901, ‘That all courts shall be open; that every person, for any injury done him, in his lands, goods, person, or reputation, shall have a remedy by due process of law’ it cannot be said that for an injury done a person, not within the provisions of the Workmen’s Compensation Act, that it was the legislative intent by the enactment of said law, to deny such person a remedy, if under the common law or the Employer’s Liability Act, or other statute he was entitled to maintain an action therefor. So the question to be determined is, Was the plaintiff’s injury ‘a personal injury’ caused ‘by accident arising out of and in the course of his employment?’ ” (Emphasis added).

In view of the question this Court posed in Gentry, I believe the legislature can constitutionally deal with an employee’s “ ‘personal injury’ caused ‘by accident arising out of and in the course of his employment.’ ” But, as Justice Sayre opined in Chapman v. Railway Fuel Co., 212 Ala. 106, 101 So. 879 (1924):

“* * * The following considerations justifying acts of this character under the police power were stated in the Jensen Case, [Jensen v. Southern Pacific Co., 215 N.Y. 514, 109 N.E. 600] supra (we quote the headnote):
“ ‘It protects both employer and employee, the former from wasteful suits and extravagant verdicts, the latter from the expense, uncertainties, and delays of litigation in all cases, and from the certainty of defeat if unable to establish a case of actionable negligence.’
“And if the police power be not sufficient to account satisfactorily for all these stipulations of the act, they may be justified on the ground that they become part and parcel of the express or implied agreement between the parties to abide by the provisions of the act made for the benefit, in the long run, of both employer and employee. Woodward Iron Co. v. Bradford, 206 Ala. 447, 90 So. 803.”

Not only did the plaintiff elect to come under the Workmen’s Compensation Act, but he accepted benefits under it. An employer who has the option of avoiding the provisions of the Workmen’s Compensation Act, but who accepts it, waives any right to invoke constitutional objections to it. Woodward Iron Co. v. Bradford, 206 Ala. 447, 90 So. 803 (1921). The same rule of law should apply to an employee.

How can appellants claim they have constitutional rights which they have voluntarily relinquished? In Chapman v. Railway Fuel Co., 212 Ala. 106, 101 So. 879 (1924), this Court held:

“In the next place it is said that the body of the act fails to provide an elective system for that it undertakes to control the rights of employer and employee, even though both elect not to come under its provisions, in the one case by abolishing defenses, in the other by remitting the employee to his common-law rights and remedies. But no one has any vested right under the Constitution to the maintenance of common-law doctrines in statutory provisions regulating the relations between employer and employee in respect of rights and liabilities growing out of accidental injuries. Jensen v. Southern Pacific Co., 215 N.Y. 514, 109 N.E. 600, L.R.A.1916A, 403, Ann.Cas. 1916B, 276; Mondou v. N. Y., etc. R.R., 223 U.S. 1, 32 S.Ct. 169, 56 L.Ed. 327, 38 L.R.A., N.S., 44; Jeffrey Mfg. Co. v. Blagg, 235 U.S. 571, 35 S.Ct. 167, 59 L.Ed. 364, is authority for the proposition that an act abolishing rights and defenses, the parties being free to accept or reject, violates no constitutional rights. All such attacks upon laws of this character have failed of their purposes. 1 Hannold, Work Comp. § 18.” (Emphasis added).

Unquestionably, Section 13 of our Constitution provides that “. . . every person, for any injury done him shall have a remedy . . .”; but, the plaintiff here had a remedy.

The majority says the quid pro quo runs only between the employer and employee. Assuming that is correct, which I do not, the employer, under the Workmen’s Compensation Law is entitled to reimbursement for his compensation outlay. In fact, the effect of this decision will mean, not only that these very plaintiffs may someday be defendants in suits by co-employees, but it also means that “[i]n the event the injured employee or, in case of his death, his dependents do not file a civil action against such other party to recover damages within the time allowed by law, the employer or the insurance carrier for the employer shall be allowed an additional period of six months within which to bring a civil action against such other party for damages on account of such injury or death.” Code of Alabama, 1975, § 25-5-11(b).

In summary, this plaintiff has been provided a “remedy” for any “personal injury caused by accident arising out of and in the course of his employment.” He elected to accept this remedy. The provisions of the Act became “part and parcel of the express agreement between the parties to abide by the provisions of the Act.” The Act, as written, protects the employee not only from the expense, uncertainties, and delays of litigation, but also against actions by injured co-employees, or if they fail to sue, against actions by the subrogated employer or its carrier to recover the compensation outlay. I would affirm.

TORBERT, C. J., concurs.


author:
JONES, Justice.
      MADDOX, Justice

text:
    HENDRIX, MOHR & YARDLEY, INC., a Corporation v. The CITY OF DAPHNE et al. and the First National Bank of Fairhope, a National Banking Association, et al.
    77-5.
    Supreme Court of Alabama.
    June 9, 1978.

      Champ Lyons, Jr. and Frederick G. Helmsing, Mobile, for appellant.
    William H. Hardie, Jr., Mobile, for appel-lee, The First National Bank of Fairhope.
   JONES, Justice.

This appeal concerns a contract action filed by Appellant, Hendrix, Mohr & Yard-ley, Inc., an investment banker, as fiscal agent for the Town of Daphne, seeking to recover for breach of contract and for services rendered under an implied contract. Alternatively, Hendrix-Mohr sought a declaratory judgment, declaring its right to a fee of 2% of the total bonds issued in the future for the financing of sewer construction in Daphne. We affirm in part, and reverse and remand in part.

This case was consolidated for trial with an action against the First National Bank of Fairhope for alleged violations of federal law and tortious interference with contractual relationships. No review is sought of the judgment in favor of the Bank.

On October 20, 1952, Hendrix-Mohr executed a contract with the Town of Daphne to perform certain duties as fiscal agent concerning a water works, bond issue and to assist the Town in acquiring a gas distribution system. This contract contained a guaranteed bid clause and provided for compensation to Hendrix-Mohr equal to 3% of the bonds issued. The bonds were issued, pursuant to the contract, and it is undisputed that Hendrix-Mohr received its full payment. Thereafter, Hendrix-Mohr, without benefit of either a written or oral contract, performed services for the Town as its fiscal agent and aided in the formation of a water works board.

In 1961, a second written contract was entered into by these parties. This contract was for services related to the construction of sewers and the issuance of sewer bonds to finance such construction. No guaranteed bid clause was included- and Hendrix-Mohr was to be paid 2% of the principal amount of the bonds issued. The contract further stated: “In the event no bonds or warrants are issued, the City owes the Agent nothing.” The contract contained no termination date.

Pursuant to this second contract, and in order to enhance the Town’s financial position and thus render the bonds salable, the fiscal agent worked toward acquisition of the Town’s gas distribution system (at that time owned by the City of Fairhope). Hendrix-Mohr recommended that the Town exercise its previously acquired option to purchase the gas system from the City of Fair-hope, which was accomplished after extensive and lengthy legal action. See Town of Daphne v. City of Fairhope, 284 Ala. 556, 226 So.2d 383 (1969); and City of Fairhope v. Town of Daphne, 282 Ala. 51, 208 So.2d 917 (1968). Due to “soft” bond markets and the continuing financial inabilities of the Town, however, the sewer bonds have never been issued.

While acting as fiscal agent, Hendrix-Mohr helped in seven other bond issues from 1952 through 1975. These were generally smaller issues and Appellant either was paid 2% of the principal amount or acted as underwriting agent and received its compensation from the subsequent resale of the bonds. Furthermore, Appellant served as financial advisor for the Town on an expansion of the water system to service the Montrose, Alabáma, area. During this time, several grants were sought and obtained (though they subsequently lapsed) by the Town from State and Federal environmental and urban development agencies. For each, Hendrix-Mohr served the Town as fiscal agent. Appellant also helped and advised the Town in the formation of its Utilities Board.

Prior to 1975, the Town asked Hendrix-Mohr to evaluate the feasibility of issuing $600,000 worth of water bonds. The record is unclear as to exactly what services were performed in this regard. On July 2, 1975, the Town notified Appellant that the First National Bank of Fairhope was “handling” this bond issue. Believing correctly that this merely meant the Bank was purchasing the bonds, Hendrix-Mohr continued to act as fiscal agent. The Town on its own, however, contacted bond attorneys and performed many of these same duties. The bond issue was closed on September 25, 1975.

On October 20, Appellant was told that the Town would pass a resolution telling it to perform no more work for Daphne. This was confirmed by letter dated November 14, 1975.

Appellant, pursuant to the Town’s request, sent a bill seeking $18,000 for services rendered — $12,000 for work on the 1975 bond issue (based on 2% of the $600,000 principal amount), and $6,000 for other services performed as fiscal agent (including work on the 1961 contract, formation of both the Water Works Board and the Utilities Board, grant applications and the Montrose water system extension). Upon receipt of this bill, the Town tendered, but Hendrix-Mohr refused to accept, a $6,000 check which “would not prejudice plaintiff’s right in any way to assert any claim.” At trial, however, witnesses for the Town stated they did not believe Hendrix-Mohr was entitled to receive even this amount.

Trial began on June 21, 1977, and the Court, sitting without a jury, entered judgment for all Defendants on July 15. This appeal followed.

Hendrix-Mohr asserts that the 1961 contract was on-going and that the Town wrongfully repudiated the contract. The work and labor done was allegedly over and above that required by this and other written contracts. Thus, it contends, the reasonable value of the services is recoverable under either a theory of implied contract or in quantum meruit.

I.

It is well settled that, provided a contract is within the scope of its corporate powers, a municipal corporation may be held liable on an implied contract, either where the contract is implied in fact from corporate acts, or is implied in law, to prevent the municipality from enriching itself by accepting and retaining benefits without paying just compensation therefor. Bethune v. City of Mountain Brook, 293 Ala. 89, 300 So.2d 350 (1974); and Brush Electric Light & Power Co. v. City Council of Montgomery, 114 Ala. 433, 21 So. 960 (1896).

Daphne clearly was authorized to enter these contractual relations because it is the duty of the Town to provide utility services for its inhabitants. See Constitution of Alabama, § 225; § 11-48-61, Code 1975; and Hillard v. City of Mobile, 253 Ala. 676, 47 So.2d 162 (1950). Inherent in this duty is the power to issue public improvement bonds and the power to obtain financial advice in this regard. Thus, as a necessary incident to the expressed power, the Town was authorized to contract with a fiscal agent concerning its financial affairs. See Phenix City v. Putnam, 268 Ala. 661, 109 So.2d 836 (1959); and Fitts v. Commission of City of Birmingham, 224 Ala. 600, 141 So. 354 (1932). Therefore, if all other conditions exist, Daphne could be obligated to pay for services rendered to it under an implied contract.

II.

It is the settled law of this State that where one knowingly accepts services rendered by another, and the benefit and result thereof, the law implies a promise on the part of the one accepting with knowledge the services rendered by another to pay the reasonable value of such services rendered. Huffman-East Development Corp. v. Summers Electric Supply Co., 288 Ala. 579, 263 So.2d 677 (1972); and Shirley v. McNeal, 272 Ala. 696, 133 So.2d 873 (1961). Furthermore, we have stated that:

“An implied contract arises where there are circumstances which, according to the ordinary course of dealing and the common understanding of men, show a mutual intent to contract. Such a contract must contain all the elements of an express contract, which rests on consent, and it is to every intent and purpose an agreement between the parties, and it cannot be found to exist unless a contract status is shown.” Water Works and Sanitary Sewer Board of City of Montgomery v. Norman, 282 Ala. 41, 45, 208 So.2d 788, 791 (1968).

To recover under an implied contract, however, where there is an express contract, it must be shown either that the express contract is performed as to all but payment for the services, or that the other party has breached the express contract and thus prevented its performance. Lovoy v. Ratliff, 276 Ala. 156, 159 So.2d 857 (1963); Braswell v. Malone, 262 Ala. 323, 78 So.2d 631 (1955); Foster & Creighton Co. v. Box, 259 Ala. 474, 66 So.2d 746 (1953); Ludden & Bates v. Watt, 18 Ala.App. 652, 94 So. 239 (1922); and Dunaway v. Roden, 14 Ala.App. 501, 71 So. 70 (1916). Furthermore, a party may recover for work and labor done in excess of the written requirements of the contract where that aspect is not of the type which must be in writing and where there is mutual assent. Bonie v. Griffin, 252 Ala. 299, 40 So.2d 870 (1949).

Under the facts before us, however, an implied contract for work and labor done is not proper. There has been no breach of the 1961 contract by the Town and Hendrix-Mohr has not fully performed its obligations under the contract. Mr. Hendrix admitted Hendrix-Mohr’s work was only 90% complete and, thus, the contract is not “fully performed except for the payment.” Furthermore, merely because the Town renounces the contract and treats it as expired does not mean they breached that contract.

As stated, no termination or expiration date was stated in the contract itself. The rule as established by this Court is that, when an act is to be done, and no time is prescribed for its performance, the law requires it to be done within a reasonable time. Smith v. Pope, 280 Ala. 662, 197 So.2d 767 (1967); Sims v. City of Birmingham, 256 Ala. 540, 55 So.2d 833 (1951); and Drake v. Goree, 22 Ala. 409 (1853). What is a reasonable time depends upon the nature of the act to be done and all the circumstances relating to that act. Smith, supra. This, necessarily, is a question of fact to be determined by the trier of facts — here, the trial Judge. Drake, supra.

This factual question was decided adversely to Appellant; and all presumptions lie in favor of his decree under our ore tenus rule of review. See Richards v. William Beach Hardware Co., 242 Ala. 535, 7 So.2d 492 (1942). Thus, where, as here, there is credible evidence supporting the Court’s decree, and it is not manifestly unjust or unreasonable, the decree must be upheld. Alabama Power Co. v. Martin, 341 So.2d 695 (Ala.1977); Hartford Accident and Indemnity Co. v. Oglesby, 293 Ala. 620, 308 So.2d 695 (1975); and Shirley, supra.

Here, there is substantial evidence in this regard. The contract in controversy is fourteen years old and even Appellant originally believed it would take only one to two years to complete. Therefore, because there was no evidence that this delay was occasioned by the Town, the record fully supports the holding that a reasonable time has transpired and that the contract was properly held to have expired. Thus viewed, the trial Court was correct in holding that the contract was not breached.

The type services Hendrix-Mohr performed are of the type normally offered of courtesy to aid a customer or client in hopes of fostering future or continued contractual patronage. Although Hendrix testified that Appellant did not act as fiscal agent merely to obtain the Town’s financial business, he stated several times that Appellant was working toward its fee from the 1961 contract to recoup pay for these additional services. It thus becomes evident that these peripheral activities were in furtherance of the 1961 obligations and were offered gratuitously. This Court has held:

“As a general principle, it may be stated that one who knowingly takes the benefit of the service of another, or the use of his property, not under an express contract or engagement, impliedly promises to make reasonable compensation. But services may be rendered, or there may be permissive use and enjoyment of property, under such circumstances as lead to the conclusion that neither party intended that compensation should be claimed or made. Gratuitously, of mere grace or courtesy, a party may render services, or permit the use of his property; and in that event the old maxim of the common law applies, that ‘a mere voluntary courtesy will not have consideration to uphold an assumpsit.’ ” Brush, supra, at 446, 21 So. at 964.

Moreover, and in further support of our holding, even should we deem an implied contractual relationship to have arisen concerning the 1961 contract, Hendrix-Mohr could not recover. As an implied contract based upon an originally express agreement, its terms are referable to the original agreement. See, generally, Howell v. Dodd, 229 Ala. 393, 157 So. 211 (1934). The original 1961 contract states:

“In the event no bonds or warrants are issued, the City owes the Agent nothing.” Thus, regardless of the services performed over and above the contract, because no bonds have been issued (and that contract is now expired), no remuneration is proper either by terms of the contract or under any legal theory pursued by Appellant. Additionally, there is evidence to the effect that, because of the long delay, all work performed on this bond issue would, necessarily, have to be redone. Consequently, the Town has received no benefit from these services and, thus, no implied contract will lie.

III.

Concerning the 1975 bond issue, however, the trial Court committed reversible error. As stated, Hendrix-Mohr was asked to render financial guidance as to this issue. Furthermore, it is undisputed that it worked on this project for a number of years and rendered valuable services. Even witnesses for the Town testified that a reasonable sum was due, and merely disagreed as to the value of these services. Though the Town performed many of these services itself, Appellant served as fiscal agent and is entitled to remuneration for work it undertook and performed.

Because the essential facts relative to this issue are undisputed, the judgment of the trial Court in this regard is not binding upon us. City Stores Co. v. Williams, 287 Ala. 385, 252 So.2d 45 (1971). Therefore, we remand this action for further proceedings to determine the reasonable value of Hendrix-Mohr’s services relative to the 1975 bond issue. In so holding, we are not to be understood as indicating either that the amount recoverable is necessarily limited to 2% of the principal amount of the bond or that even the 2% fee is necessarily recoverable. The prior course of dealings between these parties is instructive as to the terms of this implied agreement. See Flagg-Utica Corp. v. City of Florence, 275 Ala. 475, 156 So.2d 338 (1963). In these prior dealings, however, Hendrix-Mohr performed all the acts pertaining to fiscal agency. This was not done for the 1975 bond issue. Accordingly, the reasonable value of the services actually performed, whatever that may be, is recoverable upon a subsequent hearing.

The judgment of the trial Court is affirmed as it pertains to the 1961 contract and related matters; it is reversed and the cause is remanded as to the services performed on the 1975 bond issue.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

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

MADDOX and BEATTY, JJ., concur in parts I and II but dissent as to part III.

SHORES, J., not sitting.

MADDOX, Justice

(concurring in part; dissenting in part).

I concur in Parts I and II, but dissent as to Part III. I would affirm the judgment below in its entirety.

BEATTY, J., concurs.


author: WRIGHT, Presiding Judge.

text:
    Wesley Dean WILLIAMS, Jr., and Glenda P. Williams v. The JACKSON COMPANY. Wesley Dean WILLIAMS, Jr. and Glenda P. Williams v. PEST-EX EXTERMINATING COMPANY.
    Civ. 1351, Civ. 1351-A.
    Court of Civil Appeals of Alabama.
    March 15, 1978.
    Rehearing Denied, Civ. 1351A, April 5, 1978.
    Rehearing Denied, Civ. 1351, May 24, 1978.

      Joseph Daniell Whitehead, Dothan, for appellants.
    L. A. Farmer, Jr., Dothan, for appellee, The Jackson Co.
    W. Perry Calhoun, Dothan, Pest-Ex Exterminating Co.
   WRIGHT, Presiding Judge.

Plaintiff brought suit against multiple defendants claiming right of recovery separately upon different causes of action. Motions to dismiss for failure to state a claim upon which relief can be granted were granted as to defendants Jackson Company and Pest-Ex Exterminating Company. Leave to amend was not accepted and entry of final judgments for purpose of appeal was entered in accordance with Rule 54(b) ARCP. The appeals are consolidated here. We will first discuss the judgment in favor of Jackson Company.

The claim against Jackson Company stated, in essence, that in August 1976 plaintiffs purchased a house and lot in Do-than, Alabama. Subsequent to the purchase, it was discovered that there were serious defects in the subflooring. Jackson Company prepared the deed in violation of the criminal statute providing a penalty for the unauthorized practice of law. As a result of such act, plaintiffs were not apprised of the legal consequences of their actions and suffered damages.

Plaintiffs concede that the theory of their claim against Jackson Company is that the preparation of the deed constituted the unauthorized practice of law, violated the statute and amounted to negligence per se; that because Jackson Company prepared the deed it undertook the obligation to advise plaintiffs as to all legal aspects of the purchase; that having undertaken such duty, Jackson Company was negligent in not advising plaintiffs that the doctrine of caveat emptor applied to the purchase of the house.

As was made clear in the case of Fraternal Order of Police, Strawberry Lodge # 40 v. Entrekin, 294 Ala. 201, 314 So.2d 663 (1975), a complaint should not be dismissed for failure to state a claim upon which relief can be granted unless it appears beyond doubt that the plaintiff can prove no state of facts in support of his claim which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). The court said, “Implicit in Conley and our cases is the requirement that the provable set of facts entitling plaintiff to relief must be according to a cognizable theory of law." It is because of the presence of complete factual agreement and the absence of a cognizable theory of law for recovery that we find that the trial court was correct in dismissing plaintiff’s claim against Jackson Company.

In every action in tort three elements must be present: (1) a duty of defendant to protect plaintiff from the injury of which he complains; (2) a failure to fulfill that duty; and (3) an injury to the plaintiff proximately caused by the failure of defendant. Havard v. Palmer & Baker Eng’rs, Inc., 293 Ala. 301, 302 So.2d 228 (1974). Plaintiff contends that when defendant drew the deed for the transfer of title in the purchase of the house and lot, he undertook the practice of law. By such undertaking he assumed the duty of not only properly drawing a legal instrument but also the duty of giving full legal advice to plaintiffs concerning the purchase including informing them that the doctrine of caveat emptor applied. We are unable to accept this contention as a “cognizable theory” for recovery.

There is no contention that Jackson Company represented to plaintiffs that they were skilled or qualified to give legal advice, or assumed any contractual obligation to provide such advice. Even one authorized to practice law owes no duty except that arising from contract or from a gratuitous undertaking. Assuming arguendo that the preparation and furnishing of the deed by Jackson Company constituted the unauthorized practice of law in violation of statute (Section 34—3—6(b)(2), Code of Alabama (1975)), and was negligence as a matter of law, the duty arising thereby was only to provide a proper and legal deed resulting in transfer of title. Jackson Company could not thereby be said to have assumed the duty of providing full legal advice. No such duty would have fallen upon an attorney who was retained to draw a deed.

We further consider that plaintiff’s theory breaks down as to the third element necessary, that of proximate cause. The negligent act charged is drawing of the deed. The injury complained of is the purchase of a defective house. There is no conceivable chain of causation between the breach of a duty to draw a valid deed and the purchase of a house with holes in the floor. The decision to purchase has been made before a deed is drawn. In fact, it is stated in the claim that the contract to purchase was executed before Jackson Company was ever contacted. Even if that were not so, it is not reasonably foreseeable that the preparation of a deed would result in the purchase of a defective house. The test of reasonable foreseeability is not met. Vines v. Plantation Motor Lodge, 336 So.2d 1338 (Ala.1976); Havard v. Palmer & Baker Eng’rs, Inc., supra.

Plaintiffs’ claim against Jackson Company has not been disputed on the facts. This appeal has been presented, as was the hearing on the motion to dismiss, upon the issue of whether the facts alleged in the claim presented a cognizable theory for recovery. The trial court dismissed the claim upon the ground of absence of proximate cause. Upon that issue, we affirm.

We consolidate in this opinion a second appeal filed by plaintiffs from a judgment granting a motion to dismiss filed by defendant Pest-Ex Exterminating Company. The two appeals were filed in this court as separate cases, though they arose from the one case below.

The claim of plaintiffs against Pest-Ex alleged that on July 15,1976, plaintiffs signed a contract with a real estate agent for the purchase of a house; that after signing the. contract of purchase they applied for a commitment from the Federal Housing Administration to guarantee a loan for the purchase; a commitment letter was subsequently issued by F.H.A. but was subject to inspection for termites by an approved termite control company and a report thereof on a form furnished by F.H.A.; defendant Pest-Ex did perform the inspection and submitted the report, a copy of which was required by F.H.A. to be furnished the buyer and seller; that Pest-Ex negligently failed to inspect and state in the report that there was damage to the subflooring; (a copy of F.H.A. Form 2053 titled “Wood Infestation Report” signed by the agent of Pest-Ex was attached to the complaint). As a proximate consequence of the failure to report the presence of damage, plaintiffs suffered injury.

As in the appeal from the dismissal of the claim against Jackson Company, the provable facts are apparently not in dispute. The issue on appeal does not involve the pleading question of whether the claim against Pest-Ex could support a recovery under any provable facts. Rather, the issue is stated to be whether the court was correct in finding that Pest-Ex owed no duty to plaintiffs because they were not a party to the contract for inspection. Plaintiffs in brief stated the issue a second time as whether or not Pest-Ex “under the facts” alleged, owed a duty to plaintiffs.

In dismissing the claim through a finding that Pest-Ex owed no duty to plaintiffs because they were not parties to the contract Pest-Ex made with F.H.A., the court erred. Privity of contract is not a required basis of duty in such cases. It has now been expressly stated by our supreme court that duty may arise from a social relationship as well as from a contractual relationship; that a duty to use care may arise from the reasonable man test of foreseeability of injury. Harris v. Board of Water & Sewer Comm’rs of Mobile, 294 Ala. 606, 320 So.2d 624 (1975); Havard v. Palmer & Baker Eng’rs, Inc., supra. Thus one who undertakes to perform a contract may be determined to owe a duty to others not privy to the contract to perform his obligations under the contract without negligent injury to such others. Such duty may arise from the foreseeability that such others may be injured by negligent performance, or duty may arise from the knowledge that others are relying upon a proper performance. Rozny v. Marnul, 43 Ill.2d 54, 250 N.E.2d 656, 35 A.L.R.3d 487 (1969); Glanzer v. Shepard, 233 N.Y. 236, 135 N.E. 275 (1922). This latter source of duty could surely be shown by evidence in support of the claim against Pest-Ex in this case. We do not intend to indicate any conclusion as to ultimate liability but merely find that the 12(b) motion to dismiss was improperly granted. The trial court was incorrect in its holding that plaintiffs could not recover from Pest-Ex because there was no privity of contract.

AFFIRMED as to The Jackson Company.

REVERSED AND REMANDED as to Pest-Ex Exterminating Company.

BRADLEY and HOLMES, JJ., concur.

      . “Our cases” referred to are Watwood v. R. R. Dawson Bridge Co., 293 Ala. 578, 307 So.2d 692 (1975); Bowling v. Pow, 293 Ala. 178, 301 So.2d 55 (1974); Smith v. Potts, 293 Ala. 419, 304 So.2d 578 (1974).


author: ALMON, Justice.

text:
    Ex parte Wesley Dean WILLIAMS, Jr., et al.
    77-570.
    Supreme Court of Alabama.
    June 30, 1978.
   ALMON, Justice.

WRIT DENIED.

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


author: HOLMES, Judge.

text:
    Patricia Ann Couey WARNICK v. Joe Dwain COUEY.
    Civ. 1248.
    Court of Civil Appeals of Alabama.
    June 7, 1978.

      David B. Cauthen, Decatur, for appellant.
    James D. Whitmire, Lentz & Nelson, Decatur, for appellee.
   HOLMES, Judge.

This is an appeal from a decree denying modification of a prior award of custody to the appellee-father. The mother appeals and we affirm.

The dispositive issue on appeal is whether the trial court abused its discretion in refusing to change custody.

The parties were divorced in 1974. The Circuit Court of Morgan County awarded custody of their minor child to the father. The mother appealed that decision to this court. In April of 1975, this court affirmed the trial court’s decision awarding custody of the child to the father. For a better understanding of the prior facts and our decision in the instant appeal, reference should be had to Couey v. Coney, 54 Ala.App. 602, 311 So.2d 322 (1975).

In 1976, the wife petitioned the Circuit Court of Morgan County to award the wife custody of the child. This petition alleged that the mother had, since the divorce decree in 1974, remarried; that she no longer needed to work outside the home and, in fact, was a full time homemaker; that she cares for the needs of the minor children of her present husband; and, furthermore, that since the decree of divorce, the father has had a serious accident and is disabled.

The trial court held an extensive ore ten-us hearing and, as indicated above, refused to modify the custody.

Able and distinguished counsel for both parties have favored this court with extensive and well written briefs. The record before this court exceeds 700 pages. We have carefully reviewed the briefs and the record and we do not deem it necessary to set out in detail the evidence as it relates to the dispositive issue.

The pertinent evidence does reveal that approximately three months after the original decree of divorce in 1974, the mother married her employer. The relationship of the mother and her then employer and now husband is included in this court’s prior opinion. Coney, supra. The mother and her present husband have a good, stable home. They attend church regularly and maintain a loving atmosphere while rearing the present husband’s children from a previous marriage. The wife is no longer employed, but devotes all of her energies toward being a homemaker and mother to the children in the home. The present husband testified he loved the child and wanted her in his home and, further, that he is financially able to care for the child.

In addition to the above, there is ample evidence that since the decree of divorce, the husband has become disabled. Specifically, he was injured on the job and is now partially paralyzed. However, his income is now greater than before the divorce. Additionally, he can drive a car. He drives the child to school and other places. In fact, the evidence reveals the father is able and does spend a great deal of time with the child. The child and the father live with the paternal grandparents. These grandparents are in their forties. We would further note that our prior opinion in this matter clearly indicates it was anticipated that the father and child would live with the grandparents. Furthermore, the child has her own room. The child does well in school; she is an “A” student. The evidence indicates she is well adjusted and loves her father and grandparents. Needless to say, the child has lived with the father and grandparents for approximately four years.

With the above before it, the trial court refused to modify the custody award and this court cannot reverse.

The person asking the court to modify a previous custody decree has the burden of showing that circumstances have so changed as to warrant modification. Jenkins v. Jenkins, 45 Ala.App. 500, 232 So.2d 680 (1970). Specifically, as our Presiding Judge Wright stated in Ford v. Ford, 54 Ala.App. 510, 512, 310 So.2d 230, 232, (1974):

“In order to support a petition for modification of custody, the petitioner must produce evidence of a material change of circumstances of the parties occurring since the last prior decree which adversely affects the welfare and best interest of the child to such an extent that a change in custody is warranted or required. . ” [Emphasis supplied.]

See also Ponder v. Ponder, 50 Ala.App. 27, 276 So.2d 613 (1973).

In view of the strong presumption favoring the trial court in cases of this nature, we cannot say that the changed circumstances are such that the child is adversely affected.

Put another way, clearly the wife’s situation has changed considerably since the divorce. She is to be admired for bringing about some of these changes. Just as clear is the fact that while the husband’s physical condition has greatly changed, his love and ability to care for the child has not changed. More to the point is the fact that the child is well adjusted and does not appear to be adversely affected by any of the changes. Hence, we cannot reverse.

The wife, in an excellent brief by her able and distinguished counsel, emphasizes the following language which is found in our prior decision in this matter:

“[I]n matters of custody this court’s ruling and the trial court’s order is never res judicata, Danford v. Dupree, 272 Ala. 517, 132 So.2d 734, and under changed circumstances, the trial court on proper petition, may later reach a different conclusion. ...” 54 Ala.App. at 604, 311 So.2d at 324.

The above statement is a correct statement of the law; however, in the first instance on a modification petition it is the trial court who must make the determination of “changed circumstances.” Here, none were found to justify modification and we cannot substitute our judgment for that of the trial court.

In addition to the above, the wife argues in brief that the trial court erred to reversal in allowing certain evidence to be admitted. Suffice it to say that even if such be the case, error would be harmless as there is competent evidence to support the trial judge’s decision. Rule 45, ARAP.

The case is due to be and is hereby affirmed.

AFFIRMED.

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


author: BRADLEY, Judge.

text:
    Dr. C. J. ROSS and Bobbie C. Ross v. Carla R. POWELL and Cameron Carla Powell.
    Civ. 1387.
    Court of Civil Appeals of Alabama.
    June 7, 1978.

      Joe T. Pilcher, Jr., Selma, for appellants.
    Jack Crenshaw and J. Floyd Minor, Montgomery, for appellees.
   BRADLEY, Judge.

The case out of which this appeal arose originated when the appellees (Carla Ross Powell and her daughter Cameron Powell) and the appellants (Dr. and Mrs. C. J. Ross) filed a joint petition in the Circuit Court of Montgomery County, Juvenile Division. The parties’ petition submitted all matters concerning the custody and welfare of Mrs. Powell’s child, Cammie, to the jurisdiction of the Montgomery County Circuit Court.

After an oral hearing and the consideration of reports by various court appointed officials, the circuit court found that the welfare and best interests of seven year old Cammie Powell required that her grandparents (Dr. and Mrs. Ross) be enjoined from visiting her. The circuit court also permanently enjoined Dr. and Mrs. Ross from contacting their daughter (Carla Powell) or their granddaughter, or otherwise interfering with the lives of the latter two individuals. In addition, the court concluded that there was no evidence to support the Ross-es’ allegation that Carla Powell was an unfit mother. Consequently, the court denied Dr. and Mrs. Ross’ request for continued supervision or evaluation of the child and her mother by the circuit court. Finally, the court directed Dr. and Mrs. Ross to return certain enumerated items of furniture to their daughter, Carla Powell.

From the circuit court’s order, Dr. and Mrs. Ross filed this appeal contending that the court committed several errors, any one of which is sufficient to warrant reversal.

The Rosses’ major contention is that the trial court erred in denying Dr. and Mrs. Ross reasonable visitation with their granddaughter and in enjoining the Rosses from contacting both their daughter and their granddaughter.

Viewing the evidence in the record with all of its attendant presumptions, the following facts are gleaned therefrom. The child, Cammie Powell, was born in 1970. Two years later her parents were divorced and her mother, Carla Powell, was awarded custody of young Cammie. Immediately after the divorce, Carla took Cammie and went to live with Carla’s parents, Dr. and Mrs. Ross, in Selma, Alabama. Subsequently, Carla Powell decided to obtain a graduate degree in nursing at the University of Alabama at Birmingham. Apparently, Dr. and Mrs. Ross did not object to Carla’s decision. However, they did resist Carla’s efforts to take Cammie with her to live in Birmingham, Alabama.

Nonetheless, Carla eventually obtained physical custody of Cammie by returning to Selma and removing the child from the latter’s kindergarten class without the knowledge of Dr. and Mrs. Ross. After the occurrence of this event, Carla and her daughter resided at a lake home owned by the Rosses in Pell City, Alabama. Carla commuted from Pell City to her nursing classes in Birmingham.

During the period she resided in Birmingham, Carla suffered from depression, allergic reactions and various other infirmities. She was treated by a psychiatrist and he advised her to become less dependent upon her parents. When Carla attempted to follow the advice of her psychiatrist and curtail her visits with Dr. and Mrs. Ross, the parties’ relationship began to deteriorate significantly. Indeed, the Rosses often requested that Carla and Cammie visit them at the formers’ home in Selma. In most instances Carla refused or ignored her parents’ invitations.

Subsequently, Carla moved to Montgomery, Alabama and her parents frequently attempted to visit Carla and their granddaughter there. Carla often requested that Dr. and Mrs. Ross limit their visits to occasions when Carla had expressly invited them. On other occasions, the Rosses would visit and then refuse to leave Carla’s apartment when she asked them to. And in one instance Carla telephoned the police in an effort to have her parents physically removed from her residence.

Moreover, Dr. and Mrs. Ross initiated legal actions in the circuit courts of Choctaw and Montgomery County in an effort to obtain custody or visitation rights with regard to their granddaughter. These actions were filed and concluded prior to the case in dispute here.

The litigation in Choctaw County involved an attempt by the Rosses to have the circuit court grant them custody of Cam-mie. Although the record is somewhat vague with respect to the factual aspects of the legal action in Choctaw County, Dr. and Mrs. Ross apparently obtained a court order and with the aid of a deputy sheriff seized the child without notice or a hearing having been provided to the child’s mother, Carla Powell. Carla, however, subsequently regained custody of her child.

In 1975 Dr. and Mrs. Ross also filed an action in Montgomery County Circuit Court seeking the right to visit with Cammie. This action was later dismissed, although it is unclear as to the reason for the dismissal.

In addition to the legal actions described above, Dr. and Mrs. Ross had the environment in which Cammie lived as well as their daughter’s personal life investigated on several occasions by employees of the Department of Pensions and Security. These investigations occurred as a result of the Rosses’ belief that Carla was having an affair with a married man and that the latter individual frequently beat Carla and her child. Despite the Rosses’ beliefs, the investigators found no evidence to support the couple’s allegations against their daughter or the man they claimed to be her lover.

Furthermore, several investigations of Carla Powell’s personal life occurred as the result of the case at bar. Indeed, the court ordered the parties to avail themselves of a private counselor for the purpose of receiving counseling and suggestions on how to resolve their difficulties. After several personal interviews with both Carla and her parents, as well as some additional investigation into the matter, the private counsel- or recommended that the court should accede to Carla’s desire not to see her parents or have them visit with Cammie. A probation officer and the attorney who was appointed to represent Cammie as guardian ad litem also made a surprise visit to Carla Powell’s home and determined from this visit that Carla’s home was clean, that Cammie was very close to her mother and that the child did not want to be separated from her mother. The probation officer testified that she asked Cammie if her mother had any boyfriends; however, the officer continued by stating that the child did not reveal any information that was detrimental to her mother’s character. And the attorney who acted as guardian ad li-tem stated that although Dr. and Mrs. Ross had told him that Carla was living with a man, his investigation of this allegation did not result in any evidence which would indicate that the Rosses’ suspicions were well-founded.

In addition to the aforementioned facts, the circumstances of this case are further complicated by the emotional instability of both Dr. and Mrs. Ross. The record discloses that Mrs. Ross attempted suicide several years prior to the present case. Moreover, the testimony of the witnesses at trial indicated that she often acts irrationally and suffers from an overactive imagination. On the other hand, Dr. Ross is suffering from a condition known as Parkinson’s Disease and as a result of this disease he becomes disoriented, agitated and confused. While being treated for Parkinson’s Disease he suffered an “acute brain syndrome with psychotic reaction” which caused him to have various delusions. His condition is controlled to some extent by medication but he often becomes extremely angry and agitated with members of his family.

In cases involving a parent’s or a grandparent’s desire to obtain custody of a minor child, the welfare of the child is of preeminent concern. Carter v. Harbin, 279 Ala. 237, 184 So.2d 145 (1966); Willette v. Bannister, Ala.Civ.App., 351 So.2d 605 (1977); Evans v. Wilkes, 48 Ala.App. 363, 265 So.2d 145 (1972). Accordingly, the party seeking to obtain custody or visitation must demonstrate to the trial court that his or her desire is in the best interests of the child. Carter v. Harbin, supra; Willette v. Bannister, supra. After a careful reading of the evidence it is clear that Dr. and Mrs. Ross failed to convince the trial court that their desire to visit their granddaughter was in the best interests of Cammie. Moreover, the trial court concluded that it was necessary to restrain the Rosses from further contact with their daughter and their granddaughter. And in view of the settled rule that the decision of the trial court is presumed correct where the court has seen the parties and the witnesses, heard their testimony and observed their demeanor, we cannot say that the trial court acted incorrectly in so ruling. Kewish v. Brothers, 279 Ala. 86, 181 So.2d 900 (1966); Kilgore v. Kilgore, 54 Ala.App. 336, 308 So.2d 249 (1975). Nor are we convinced that the court plainly abused the discretion given to it by law in matters regarding child custody and visitation. Kewish v. Brothers, supra; Sheffield v. Sheffield, Ala.Civ.App., 350 So.2d 1056 (1977); Evans v. Evans, 278 Ala. 573, 179 So.2d 320 (1965). Therefore, the court’s decision denying Dr. and Mrs. Ross reasonable visitation with their granddaughter and its order enjoining the Rosses from further contact with their daughter and granddaughter are affirmed.

The next issue raised by Dr. and Mrs. Ross on appeal is that the trial court did not comply with the mandates of Rule 65(d), ARCP in granting Carla’s request for an injunction against her parents.

Rule 65(d)(2) of the Alabama Rules of Civil Procedure requires that an order granting an injunction provide the reasons for the injunction’s issuance, set out its terms with specificity and describe in reasonable detail the act or acts sought to be restrained. We believe the form and scope of the injunction issued by the trial court in this instance was sufficient to meet the requirements of Rule 65(d)(2).

The trial court’s order provided:

“1. The Court finds no authority to support the proposition of the maternal grandparents that they have a legal right, over the objection of their daughter, to visitation with the minor child, Cameron Carla Powells Further, the Court finds from the evidence that lamentably it is in the best interests of the minor child that visitation with the grand parents not be allowed in the foreseeable future until or unless the natural mother, Carla Ross Powell, initiates said visitation.
“2. Dr. and Mrs. Ross are hereby permanently enjoined from contacting, directly or indirectly, or through the agency of any other person, their daughter, Carla Ross Powell, and their granddaughter, Cameron Carla Powell. They are further enjoined from harassing, molesting, interfering or intervening directly or indirectly in the lives of Carla Ross Powell and Cameron Carla Powell.” (Emphasis supplied.)

As this order demonstrates, the reason for the injunction’s issuance was indicated, i. e. the welfare and best interests of the minor child. Likewise, its terms were sufficiently specific for the Rosses to be apprised of the fact that they were to have nothing whatsoever to do with the lives of their daughter or granddaughter unless their daughter chose to initiate a reconciliation between the parties. Finally, the court adequately described the act or acts to be restrained. Indeed, its order stated that Dr. and Mrs. Ross were not to visit, contact or otherwise interfere with Cammie or her mother.

It is our belief that a restraining order or injunction should be direct and succinct. It must set forth the reasons for its issuance and it should be specific in that respect. However, elaborate detail is not necessary. There is sufficient basis for sustaining the injunction if the party enjoined is apprised of the course of conduct which is prohibited and the order is not so excessively broad that the party against whom it is issued is subjected to undue restraint. See 7 Moore’s Federal Practice § 65.11; 11 Wright & Miller Federal Practice and Procedure § 2955.

We have carefully considered the injunction issued in this case and find that it adequately apprised Dr. and Mrs. Ross of the course of conduct which was prohibited and that it did not constitute an undue restraint on their personal lives.

The third ground asserted by Dr. and Mrs. Ross as a basis for this appeal relates to their contention that the trial court erroneously considered and relied upon an investigative report made by a private counselor who discussed the parties’ difficulties with both the Rosses and Carla. Dr. and Mrs. Ross complain that their attorney was not permitted to challenge this report because it was not presented as evidence at trial and that he was not given the opportunity to cross-examine the counselor because she was not called as a witness. We find absolutely no merit to these contentions.

In November of 1976 the trial court ordered the parties to discuss their problems with a private counselor named Frances Ward. Dr. and Mrs. Ross agreed to pay for the services of Mrs. Ward. On January 12, 1977 Mrs. Ward submitted her report to the trial judge. In her report she stated that she had interviewed the parties and on the basis of her investigation of the situation she saw no justification for requiring Carla to allow her parents to visit with Cammie. Mrs. Ward’s letter to the court also stated that she did not feel that there was any justification for Dr. and Mrs. Ross’ alarm for the welfare of their granddaughter.

In an order issued on January 31, 1977 the court adopted Mrs. Ward’s report as part of the file in the dispute over Cammie Powell. In his order the trial court also appointed an attorney to act as guardian ad litem, a youth counselor (probation officer) to investigate the home of Carla Powell, and directed the attorneys who represented the parties to meet with him on April 15, 1977. Finally, the court ordered that pending its review of the case Dr. and Mrs. Ross were not to make any contact with Carla or her daughter.

At no time after the report was made a part of the file in the case did the Rosses’ attorney object to its inclusion or challenge the validity of its conclusions. In fact, when the trial was held on the matter of the grandparents’ right to visitation, there was no objection by the Rosses’ attorney to the report made by Mrs. Ward even though the trial court expressly referred to the existence of that report. Nor did the lawyer who represented the Rosses seek to have Mrs. Ward made available for the purpose of acquiring her testimony, although he expressly requested that the probation officer who had investigated Carla and filed a report about the investigation be made available as a witness. In view of these facts, it is our opinion that there is nothing in the record to indicate that counsel for Dr. and Mrs. Ross objected to the report made by Mrs. Ward or sought to have her made available for examination concerning her report.

In Anonymous v. Anonymous, Ala., 353 So.2d 515 (1977), our supreme court established that a party involved in custody litigation could not be denied a substantive right without first receiving notice that the right was in jeopardy. And in Parten v. Parten, Ala.Civ.App., 351 So.2d 613 (1977), we stated that in custody matters reports of social workers which relate to their investigation of the parties should be made available for examination by the parties and their attorneys. Furthermore, we said that counsel could not be denied the right to examine a social worker about her report.

In the instant case Mrs. Ward’s report was available for examination by the parties and their attorneys. Despite this fact, the contents of her report were never challenged. Nor was the Rosses’ attorney denied the right to examine Mrs. Ward about her report. Indeed, he never requested that the court make her available for questioning even though he was aware (or should have been aware) that she had made a report which was unfavorable to his clients’ interests. Accordingly, we are persuaded that the holdings in Anonymous v. Anonymous, supra and Parten v. Parten, supra were not violated by the trial court’s actions in this case.

Moreover, we are not convinced that the rights of Dr. and Mrs. Ross were prejudiced by the existence of the report by Mrs. Ward. Since the report was never introduced into evidence at trial, we cannot say that the trial court relied on the conclusions contained in that report in denying the Rosses visitation with their granddaughter. And this view is further supported by the fact that a substantial amount of evidence—other than the Ward report—was introduced which would support the court’s order denying the Rosses contact or visitation with their granddaughter. See Stewart v. Stewart, Ala.Civ.App., 354 So.2d 816 (1978).

In situations where the complaining party contends that the trial court relied on improper or inadmissible evidence in reaching its decision, it is incumbent on the complaining party to affirmatively show that the court did in fact rely on or consider the defective evidence. See Long v. Ladd, 273 Ala. 410, 142 So.2d 660 (1962). Dr. and Mrs. Ross made no such showing in the instant case.

The final issue presented to this court for review concerns the Rosses’ assertion that the trial court erred in ordering Dr. and Mrs. Ross to deliver to Carla furniture and other personal property which was in the possession of the Rosses at the time of the trial. Dr. and Mrs. Ross contend that the right and possession of this property was disputed and that a court of equity had no jurisdiction to determine the contest over this property since the contest was legal in its nature and remedy.

During the pre-trial conference both parties to the litigation stipulated that one of the issues to be decided at trial was whether Dr. and Mrs. Ross had a duty to return the furniture and other personal property in their possession to their daughter Carla. Evidence on this issue was submitted at trial for the court’s consideration. The trial court ordered that the Rosses return the furniture and other items to Carla, and such action by the court was not improper. In instances where a court of equity has assumed jurisdiction of a dispute at the invocation of the parties, the court may retain jurisdiction to enforce legal rights and apply legal remedies. Billingsley v. Billingsley, 285 Ala. 239, 231 So.2d 111 (1970); Hall v. Hall, 280 Ala. 275, 192 So.2d 727 (1966); Moody v. Moody, Ala.Civ.App., 339 So.2d 1030 (1976).

In accordance with the conclusions expressed in this opinion, all aspects of the trial court’s judgment are affirmed.

MOTION TO DISMISS APPEAL AND TAX COSTS DENIED.

AFFIRMED.

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