author: SHORES, Justice. BEATTY, Justice

text:
    R. L. REID, INC. v. Mildred PLANT, etc., et al.
    SC 2187.
    Supreme Court of Alabama.
    Sept. 30, 1977.
    Rehearing Denied Nov. 4, 1977.
    William H. Hardie, Jr., of Johnstone, Adams, May, Howard & Hill, Mobile, for appellant.
    Richard Bounds and John T. Crowder, J., of Cunningham, Bounds, Byrd, Yance & Crowder, Mobile, for appellees.
    Bibb Allen, Birmingham, for Alabama Society for Professional Engineers, National Society for Professional Engineers, American Consulting Engineers Council, Consulting Engineers Council of Texas, Consulting Engineers Council of Alabama, amici curiae.
   SHORES, Justice.

The plaintiff, a widow who sued under Title 26, § 312, Alabama Code, obtained a jury award in the amount of $350,000.00. The defendant appeals from a judgment for the plaintiff based upon that award. We reverse and remand.

This is our second review of this case. The first appeal dealt with the constitutionality of Title 7, § 23(1), Alabama Code, as it applied to this cause of action, and we held that as applied to causes of action in tort the terms of Act 788 creating that section were void for vagueness and uncertainty. The applicable statute of limitation was held to be Title 7, § 123, Alabama Code. Plant v. R. L. Reid, Inc., 294 Ala. 155, 313 So.2d 518 (1975).

The case was tried on the plaintiff’s amended complaint alleging that the defendant company, engineering consultants, was employed by the Alabama State Docks Department “ . . .to prepare specifications for alterations to the loading facility at the bulk-handling plant at the Alabama State Docks at Mobile, Alabama.” The complaint continued:

“3. Plaintiff further alleges that the Defendants did prepare the specifications for the alterations hereinabove described and the alterations were subsequently made in accordance with such specifications.
“4. Plaintiff further alleges that in the exercise of reasonable care and diligence the specifications for the alterations of the conveying equipment at said loading facility as above set forth should have required that the conveyor be equipped with features to prevent slippage of the conveyor belt when operated under ordinary conditions and the specifications should have required built-in features to eliminate slippage of the convey- or belt when operated under extraordinary conditions.
“5. Plaintiff further avers that in the exercise of reasonable care and diligence the specifications for the alterations at the loading facility as above set forth should have designated that the control house for the west surge hopper at said bulk-handling plant be positioned so that the operator’s vision of the conveying equipment and belt was not obscured.
“6. The Plaintiff further alleges that on November 25, 1972, her husband, Tramble Plant, while engaged in his duties as an employee of the Alabama State Docks was putting rosin in between the drive pully [sic] or drum and the conveyor belt in order to prevent slippage of the belt when his hands became caught between the drum or pully [sic] and the conveyor belt, pulling him into the conveyor proximately inflicting upon the Plaintiff’s husband injuries which proximately cause[e]d his death.
“7. Plaintiff further alleges that the death of her husband, Tramble Plant, was the proximate result of the negligence of the Defendants in negligently failing to place a safety guard or shield over the moving portions of the conveyor system to protect the Plaintiff’s husband and other employees who would be required to be in close proximity to said conveyor and who Defendants knew, or in the exercise of reasonable care should have known, would be in danger of having portions of their bodies or clothing caught in the conveyor.”

After one mistrial, another trial resulted in a verdict for the plaintiff. The defendant’s motions for a directed verdict, judgment N.O.V., and new trial were denied.

The defendant raises a number of issues on this appeal, not all of which need to be addressed. Among those raised are:

1. Whether recovery may be allowed against an engineer based upon negligent design of modifications when the machine to be modified was not substantially modified according to the engineer’s design;
2. Whether recovery may be allowed against the engineer based upon negligent failure to provide a guard in the design of modifications to a machine when the engineer’s contract was limited to specific modifications which did not include guards; and
3. Whether recovery may be allowed against an engineer for negligent design of modifications to a machine without testimony of a qualified expert that the engineer failed to use the skill exercised by others of his profession.

R. L. Reid, Inc. is a firm of consulting engineers whose headquarters are located in Houston, Texas. Its president, Robert L. Reid, is an experienced, professional construction engineer. On January 21, 1964, the firm entered into a contract with the Alabama State Docks Department whereby the Reid firm was to provide “ . general engineering work and preparation of plans and specifications, and supervision of construction,” including:

“(a) The furnishing of engineering services as requested by the Director, or his authorized representative, in the planning and construction of Bulk Ore Loading System, Scales, Railroads and appurtenances. Preparation of preliminary engineering studies[,] layouts, sketches, and reports, where applicable, and the Engineer’s specific recommendations. Preparation of tentative cost estimates.
“(b) The planning of soil borings or subsurface investigations or any special surveys and tests required for design. Field surveys for design of structures, such as, buildings; not to include areas outside of structures. Furnishing engineering data, drawings, maps or plans necessary for permits required by local or federal authorities. Preparation of detailed design, drawings, specifications, detailed cost estimates and bidders proposal forms for authorized construction. Furnishing original and five (5) copies of plans and agreed number of specifications, notice to bidders and bidder’s proposals. Assistance in securing, tabulating and analysis of bids and furnishing recommendations on the award of construction contract. Assistance in preparing formal contract documents.
“(c) Performing general supervision and administration of authorized construction (as distinguished from continuous resident field inspection), including periodic visits of the Engineer or competent representative of the Engineer to the site of construction; consultation and advice during construction. Check shop and working drawings furnished by the contractors; review laboratory, shop and mill tests of materials and equipment; preparation or review of monthly estimates of payments to contractors; supervision of initial operation of the project, or of performance tests required by specifications; make a final inspection of the project; revise the contract drawings to show the work as actually constructed.”

Among the facilities operated by the State Docks are those which handle bulk ore. These consist primarily of ship unload-ers and a conveying system which transfers the bulk material from the ship to a surge tank, which then empties the material onto a horizontal belt feeder which deposits it into railroad cars.

The facility at the State Docks, of which the belt feeder was a part, was designed originally by J. B. Converse in 1950. It was built by Rust Engineering in 1951. In 1964, the State Docks decided to increase the turn-around time of those ore ships unloading at the facility. The Reid firm was selected and it prepared and presented plans and specifications for the modification. The complaint in this case alleges that “ . . . alterations were subsequently made in accordance with such specifications.”

The original design for carrying the bulk material from the surge tank caused it to be deposited on the horizontal belt feeder which conveyed it to a spout through which it was loaded onto the cars. The horizontal belt feeder and the railroads cars were operated from a control room located on the same structure which contained the surge tank, the horizontal conveyor and the loading spout. The horizontal belt feeder was powered by a drum pulley, a powered cylindrical drum. The belt had a long-standing tendency to slip, and the customary procedure used by the attending workmen to alleviate slippage was to throw crushed rosin on the belt at the point where the belt joined the drum pulley. In doing this, a workman would stand on a catwalk adjacent to the pulley and throw rosin at the drive pulley where the belt and pulley came together, which was about five to seven feet from the catwalk. Apparently, one would stand as close as possible to that nip point in order to get as much rosin into it as he could.

Tramble Plant, the decedent, was normally employed by the State Docks as a crane operator, but like other employees, was working past his normal shift to assist in operating the bulk plant, probably because a ship had to be off-loaded. Plant was in the control room operating the horizontal belt feeder, but left that place to throw rosin on the belt. Although no one saw the accident, Plant was discovered a short time after he left the control room. His body had been forced through an opening approximately six inches wide between the drum pulley and a section of angle iron, his arm having been caught between the belt and the drum.

The evidence is uncontradicted, however, that the plans and specifications prepared by Reid were not followed by the State Docks. The theory of the plaintiff’s case is that Reid was negligent in failing to provide for a guard to shield the nip point of the head pulley, the point at which Mr. Plant met his death. However, it is again uncontradicted that had the State Docks followed the plans and specifications as prepared by Reid, no guard would have been necessary at this point, because the belt feeder would not have been accessible to workmen. It is also uncontradicted that, at the time of Mr. Plant’s death, the State Docks had long since converted the facility and no longer purported to employ the Reid modifications.

The plaintiff’s position is that Reid owed a duty to third persons in the performance of its contract with the State Docks, and it breached that duty to plaintiff by failing to include a guard in the plans and specifications submitted to the State Docks. The plaintiff concedes that the contract did not call for any safety features. However, she relies on testimony from an engineer employed by the State Docks to the effect that safety is always a factor in drawing any plans and specifications. She did not come forward with any testimony that safety guards of the type she says should have been recommended by Reid were commonly recommended by engineers on such projects in 1964. Her only evidence on this crucial point consisted of testimony by an engineer who could testify to no more than his opinion that guards should have been included in this project in 1964. This witness, a 1969 graduate, was not a member of the profession at the time and never testified to the state of the art in the engineering field in 1964. At most, he simply expressed an opinion that guards should have been recommended, without saying that such was an established practice in 1964.

Experts may be permitted to state facts known to them because of their expert knowledge but should not be allowed to substitute opinion for fact, although they can express an opinion on established or assumed facts. Devore v. Schaffer, 245 Iowa 1017, 65 N.W.2d 553, 51 A.L.R.2d 1041 (1954).

She offered no other testimony that such was the state of the art at the time.

The questions put to this witness were as follows:

“Q Based on what you’ve told us of your study of the plans and specifications, the contract, your visit to the scene, your observing the operation of the conveyor system, and your study of the photographs — and I’ll ask you to assume that on November 24th, 1972, at about 2:30 P.M., Tramble Plant left the — the belt began to slip; it was in operation; they were loading — well, unloading cast iron pellets; and the weather was wet and damp; and Tramble Plant and Ronnie Giles were in the control room; and the belt began to slip, and Tramble Plant said, ‘I’ll get it this time.’ And the procedure was that if this occurred to go out and take a handful of rosin and throw it between the drive pulley and the belt on the west end of the conveyor system, and that shortly thereafter witnesses underneath noticed fabric from clothing coming down through the hopper; that there has been further proof that they went immediately to the scene and found that Tramble Plant was caught — that his arm and hand were caught between the drive pulley and the belt; that he was upside down into the hopper and had been pulled through a space some six to eight inches or a foot wide between the drive pulley and the structural members running adjacent to it; that the machine was stopped and that he was in fact caught in there and had to be cut out. Now, based on those facts and based on your examination of the other matters in this case, do you have an opinion as to whether the defendant, R. L. Reid, with respect to his preparation of those plans and specifications complied with or conformed with the standard of care governing the conduct of that company and other professional engineering consulting firms in Alabama with equal education and experience and acting under the same or similar conditions?
“A Yes. My opinion is that there should have been some guarding device to prevent human beings from being pulled into the in-running nip there. Now, there are a number of solutions, but I was going to keep it simple by saying the major objection I have is that there should have been some guarding device there.
“Q Now let me ask you this; is the opinion that you’ve given with regard to compliance by Reid and Company to the standard of care, is your opinion altered in any way by the fact that R. L. Reid, Inc. did not design or install or have anything to do with the original facility in 1950, but rather was employed only to draw the plans and specifications for the alterations made in 1964?
“A Yes. If engineers are going to be professionals in the same sense that the profession wants and that the professional engineering societies to which I belong and possibly to which Mr. Reid belongs want, if we are going to raise or if we have raised engineering to the professional status as that of attorneys and physicians, then I think that certainly we have to follow the code of ethics and interpret that always in favor of the public and people who are around things that we design and build. And there is no question that when the machine was first designed it was designed badly and it was unsafe to begin with; and I feel that when Mr. Reid and his associates came to the point of re-design that the problem did exist and they should have recognized that there was a dangerous situation there and in the course of their re-design of it, it should have been brought up to the contemporary standards at that time; and I do not feel that the fact that Mr. Reid was engaged by the State Docks to do exactly as they told him and nothing else — I do not feel that that is a good defense professionally because in other professions similar arguments do not hold much water . . . .” (Emphasis Supplied)

In addition to this, the plaintiff put various pamphlets into evidence which illustrated that guards should be placed at points on conveyor belts where humans were likely to come into contact. However, had the plans and specifications recommended by Reid been adopted by the State Docks, the nip point of the head pulley would not have been accessible to humans and, therefore, a guard would not have been required to meet the standards of the profession as they existed in 1964. An engineer may not be held liable for injuries which could not have occurred had his modifications been adopted. Bayne v. Everham, 197 Mich. 181, 163 N.W. 1002 (1917). Two experts testified to the effect of Reid’s recommendations, and this was not contradicted by the plaintiff, other than by the testimony set out above, in which her expert expressed the opinion that Reid should have brought the facility, which was unsafe to begin with, up to contemporary standards. Before Reid could be found negligent in the performance of his duty, it must be shown that he failed to meet the standards of his profession existing at the time he performed the services. In Looker v. Gulf Coast Fair, 203 Ala. 42, 45, 81 So. 832, 835 (1919), this court stated the duty to be as follows:

“ . . .A competent architect, pursuing an independent profession, is not an insurer of the accuracy or perfection of his work. In preparing plans and specifications he must be faithful and possess and apply the ordinary care and skill of the ordinarily skilled in that profession.

Significantly, the only evidence of the extent of the professional standards in 1964 came from the defendant’s experts, which established without contradiction that guards were not a recommended procedure under these facts in 1964.

We might agree with the plaintiff that guards should have been specified had Reid not recommended moving the belt feeder so as to make it inaccessible to humans which, according to the evidence, would have met the professional standards existing in 1964.

The plaintiff apparently concedes that Reid would not be liable had its plans and specifications contained a recommendation that the nip point be guarded and the State Docks had failed to follow that recommendation. We can see no difference where it is conceded that Reid recommended that the belt feeder be moved some 1' 8" so as to make it inaccessible to workmen, and this recommendation was not followed by the State Docks.

The plaintiff’s own witness stated that there were a number of possible solutions to the safety problem, of which the Reid recommendation may well have been a satisfactory one. This witness stated only that it was his personal preference to install guards.

There is no doubt, having read the record, that the practice of throwing rosin into the moving belt at the nip point was dangerous and by condoning it, or directing it, the State Docks was negligent, or even wanton, demonstrating as it does, a total disregard for the sanctity of human life. But to charge Reid with responsibility for alleviating this practice which he testified he knew nothing about (and there was no evidence that he did), simply because he agreed to make some modifications in the facility years after it had been installed, is not sanctioned in the law. There is nothing in his contract to suggest that he assumed any responsibility for correcting all defects in the design of a facility some fifteen years old at the time he undertook to modify it to make it more efficient. There is no evidence that his plans and specifications made the facility more dangerous. He is charged with the sin of omission. According to the plaintiff, he should have recognized the danger and should have made a specific recommendation to eliminate that danger. The fact that the recommendation which he did make would have alleviated the danger, had it been followed, is said by the plaintiff not to excuse him for failing to specify another procedure which would have also eliminated the danger, assuming it had been adopted by the State Docks. This cannot be the law.

The plaintiff has failed to establish by the evidence that Reid breached any duty to the decedent by failing to specify the installation of a guard at the point where Mr. Plant met his death. The plaintiff has this burden under our practice and, having failed to establish this element of her claim, the defendant was entitled to a new trial.

The cause is, therefore, reversed and remanded for a new trial.

REVERSED AND REMANDED.

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

FAULKNER, EMBRY and BEATTY, JJ., dissent.

ALMON, J., recused himself.

BEATTY, Justice

(dissenting).

I dissent.

(1) Defendant’s first position is that plaintiff could not recover because the conveyor system for which defendant was employed to design modifications was not in fact substantially modified according to his design. In other words, defendant maintains that his recommendations were not followed, so he cannot be held liable for an injury caused by a design of someone else. That argument is untenable in this instance because it assumes that the defendant did design some modifications for that aspect of the feeder operation which was the source of the accident.

It is without dispute that the defendant’s designs under his contract did include specifications which called for changes in the belt feeder. These were manifested in defendant’s exhibit 3, admitted into evidence. They called for increasing the capacity of the belt conveyor to 2500 TPH by replacing the existing gear-reducer; replacing the existing roller chain drive, and relocating and revising the existing drive pulley and supports; revising the receiver and car loading spout; re-working the existing skirtboards to provide clearance around the feeders under the surge bin; removing the belt scale not required for operating the belt convey- or; and relocating the existing return rolls and removing the shims from under the troughing idlers. However, these modifications did not include either a design or specifications for a guard at the nip point. As already noted, there was evidence that the purpose of the contract with the defendant was to speed up the conveyor system, which was accomplished. Those changes were made, but later the system broke down and the original drive was reinstalled on the pulley. Certainly under the allegations of plaintiff’s complaint which alleged that Plant’s death

. was the proximate result of the negligence of the Defendants in negligently failing to place a safety guard or shield over the moving portions of the conveyor system . . . (Emphasis supplied)

the plaintiff could prove the failure to specify such safety features in the specifications which were actually prepared. In short, the plaintiff’s theory was that there was an absence of a safety design for a hazard known or which should have been appreciated, rather than a design made but not followed. (Mr. Reid himself testified: “Q. I mean it is a significant hazard — if a man gets caught in that, he’s gone, isn’t he? A. Right.”) Accordingly, the cases of Day v. National U. S. Radiator Corp., 241 La. 288, 128 So.2d 660 (1961) and Bayne v. Everham, 197 Mich. 181, 163 N.W. 1002 (1917), cited by the defendant, are inapposite because they deal with factual situations in which specifications regarding safety features were actually made but not followed. In this instance none were specified, and under the plaintiff’s contention this failure to specify is the gist of her cause of action. This factual issue was addressed in Beloit v. Harrell, 339 So.2d 992 (Ala.1976). In that case a manufacturer of a paper-making machine was found not to have designed it to prevent a subsequent injury to a workman. The plaintiff’s theory was that in designing the machine the manufacturer failed to design safeguards at the nip point between the rolls in a calendar, and we held that liability might ensue even though the operator of the machine had modified a part of it, because the modification was found not to have had any safety function. Quite obviously, if the contrary had been true and the designed parts removed by another, the defendant’s theory would have applied and no liability would have resulted. Bayne v. Everham, supra; Hoehn v. Minnesota Mining & Mfg. Co., 248 Minn. 162, 79 N.W.2d 19 (1956).

(2) The defendant’s next contention is that his contract did not include guards for the nip point, but was limited to specific modifications. The question this proposition raises is, of course, what was the scope of the contract?

We agree with the defendant that the contract was one calling for modifications in an already existing structure and, ipso facto, his plans were to be limited. But of what were those limited plans to consist? The chief engineer of the Docks testified to their reliance upon the defendant to develop a safe plan. Had the specifications included a guard over the nip point, he knew of no reason why it would not have been installed. He acknowledged that safety “is a necessary consideration of any work done in the way of drawing plans and specifications for an industrial facility.” Even the defendant’s expert engineer, Dr. Brooks, testifying to the scope of the contract, conceded that the contract did not prevent the defendant from incorporating safety features into the design of the equipment. Mr. Reid himself testified to other safety recommendations he made:

A. The operation of the equipment was not correct?
Q. Why do you say that?
A. Because they on this — for safety reasons I recommended that we keep the — keep pressure in the house .
Q. Is what you are saying that the State Docks insofar as the operation of the equipment is concerned did not follow your safety recommendations?
A. That’s right.
Q. Was any consideration given to safety cables along the belt itself to enable workmen to stop it from those positions other than from the control house?
A. I mentioned it to them but they had some problems there. They didn’t want me to do it. They didn’t want me to put it in.
Q. Did you recommend it?
A. Well, I don’t know what you mean by recommend; we suggested it. We don’t — it wasn’t the poiicy — this was an emergency job — to put everything in writing. In fact, there wasn’t hardly anything put in writing.

Following this exchange, Mr. Reid also testified:

Q. Do you admit to the jury that it was your responsibility or the responsibility of your company and the engineers who drew these plans and specifications to consider the aspect of safety when they were doing so? A. Yes. Would you like for me to elaborate on it?
Q. It doesn’t matter—
A. I’m going to tell you — you asked the question and I’m going to tell you what we did. In the first place I wanted to eliminate the railroad switchback to eliminate the danger of somebody getting hurt down there. The second thing I did, we air-conditioned the control room so they would have a better place to work and to keep the dust out of the equipment to prevent fires. We put an air jet on the windows to keep them clean so they could see better out of the windows of the new control room. We also show an air jet on the west side, which was never installed, and that is the side that you could have seen this belt—
Q. All right—
A. No, I’m not through — you asked me the question. I recommended to them from the very beginning that they have some cable stope on there for emergency stops, and they said, ‘We’ll take care of that.’ Now they have an engineering department and they have a registered engineer; I had no reason to believe that they themselves would not take care of anything else that needed to be done on that. We had a limited contract; they needed it done in a hurry. The other things their engineering department said they would do.
Q. Did you recommend a guard?
A. No, we didn’t recommend a guard because a guard wasn’t necessary.
Q. It wasn’t necessary on that other end?
A. No — that was not my contract.

Mr. Reid later testified that “if they had followed my drawing, there wouldn’t have been any need for a man to be up there.” Even so, the testimony of all of these witnesses, and Reid in particular, was sufficient to make a jury question of the scope of the contract, that is, whether it included the defendant’s obligation to make safety recommendations in his designs pertaining to the drum pulley. McGehee v. Frost, 268 Ala. 23, 104 So.2d 905 (1958).

(3) Reid’s testimony, standing alone, might have foreclosed any issue on his duty to make safety designs pertaining to the operation of the drum pulley, but the plaintiff’s evidence furnishes a “mere gleam, glimmer, spark, the smallest trace, or a scintilla” in support of the theory of his duty in that connection, so it was a question for the jury. Pettway v. Pepsi-Cola Bottling Co., Inc., 337 So.2d 757 (Ala.1976).

Some, although not all, of that testimony came from the plaintiff’s expert, Dr. Richard Macon.

Numerous Alabama cases recite our rule that the determination of whether a witness is qualified to testify as an expert is primarily within the discretion of the trial judge, and his ruling on that issue will be disturbed on appeal only when it is patently abusive. Ford Motor Co. v. Rodgers, 337 So.2d 736 (Ala.1976); Hagler v. Gilliland, 292 Ala. 262, 292 So.2d 647 (1974); Lehigh Portland Cement Co. v. Dobbins, 282 Ala. 513, 213 So.2d 246 (1968). In this instance Dr. Macon testified to his opinion that safety was an important aspect of engineering design in 1964, and that there should have been a guarding device on the in-running nip to prevent persons from being pulled into it. He maintained that the “state of the art” at that time had advanced to where there were feasible guards which would have eliminated this hazard. He also stated that:

. [wjhen Mr. Reid and his associates came to the point of re-design that the problem did exist and they should have recognized that there was a dangerous situation there and in the course of their re-design of it, it should have been brought up to the contemporary standards at that time; . . and in this case I believe some thought should have been given to the people that are running around this device and have to work near it.

These opinions were allowed from a witness who was graduated in 1969 from the University of South Alabama with a degree in electrical engineering, and received a masters degree in mechanical engineering from Southern Methodist University in 1973. He combined this academic training with one and one-half year’s employment as a designer and conductor of static and fatigue tests on aircraft components with General Dynamics Corporation, then was a research and development engineer with Southwest Wheel and Manufacturing Company, designing and testing automotive-related components. Thereafter he lectured in electrical engineering and taught courses at the University of South Alabama in engineering mechanics and machine design. He testified to his familiarity, through studies and experience, with the art of machine design predating 1964, after all of which the trial court allowed him to state the opinions we have indicated. Under this evidence we should not state that the trial court patently abused his discretion by allowing the witness to state his opinions.

Accordingly, the trial court was correct in allowing the expert opinion evidence, and the result should be to affirm the verdict for the plaintiff. But the majority questions the power of this expert to testify to the “state of the art” which existed before he became an engineer. Make no mistake about it, this holding of the majority places a severe restriction upon expert testimony and represents an unfortunate step backward in the development of the law of evidence.

FAULKNER and EMBRY, JJ., concur.

      . Assuming, without deciding, that the proper standard is stated in this question, the answer is unresponsive. Therefore, we need not decide whether the standard to be applied to the profession is limited to the conduct of the profession in the State of Alabama.


source: Caselaw Access Project

author: PER CURIAM. BEATTY, Justice

license: Public Domain

text:
    Charles WILLIAMS v. The CITIZENS BANK OF GUNTERSVILLE.
    SC 2193.
    Supreme Court of Alabama.
    Sept. 30, 1977.
    Rehearing Denied Nov. 4, 1977.
    Charles W. Williams, pro se.
    No brief for appellee.
   PER CURIAM.

This is an appeal from the trial court’s granting summary judgment against Charles W. Williams, the plaintiff, in a suit alleging breach of contract. We affirm.

Initially, we make several observations. First, Mr. Williams represents himself and he is not an attorney. His brief is inadequate and he fails to carry the burden of proof necessary on appeal. Second, the record is confusing. This arises from contradictions in Mr. Williams’ complaint, affidavits, and deposition. Third, giving Mr. Williams the benefit of many doubts, his complaint alleges a breach of contract with a condition precedent which has not occurred. Lastly, assuming there was a breach of contract, Mr. Williams is entitled only to nominal damages.

Mr. Williams filed suit against The Citizens Bank of Guntersville in the Circuit Court of Marshall County on September 4, 1973, claiming money damages of $67,693.00 and demanding a jury trial. The complaint was amended on July 23,1975, to include an additional $20,000.00 damages.

The nature of his claim is not without considerable doubt. The defendant and the trial court treated his claim as one for breach of contract to lend money. Prom our examination of the record, we are not inclined to disagree.

To avoid a recital of confusing facts, we will give a brief synopsis of the facts as we understand them. Mr. Williams alleges that he entered into an oral contract with Hayse McGahey as President of The Citizens Bank of Guntersville in late September, 1971, whereby the bank would lend him money to purchase the inventory or other property of the Lamarr Vice Lucky Bargain Store. The inventory and property were to be sold at auction by the Small Business Administration. Apparently, the store had not prospered. The complaint alleges in part:

“2. THAT, president of the said bank, Hayse McGahey, promised if I, Charles W. Williams, would BID IN the Lamarr Vice personal property SBA was advertising for sale at auction, the Bank would ‘furnish the money’ .
“4. Having completed after several days work, the two determinations named herein, Charles W. Williams party of the second part (plaintiff in this action), promised, agreed and contracted as follows:
“(a) To bid on the Vice property at the auction and buy same unless some other bidder called out a bid over and above the maximum I was willing to pay.”

The auction was held on October 15,1971, and Mr. Williams was the high bidder with a bid of $7,500.00. Accompanied by two representatives of the Small Business Administration, he went to the Citizens Bank of Guntersville to obtain the loan proceeds to pay for his bid. Mr. McGahey refused the loan.

Concerning his encounter with Mr. McGa-hey, Mr. Williams’ deposition reveals the following:

“Q. So, really, you could borrow it from . . .• you indicated to Mr. McGahey at the time that you went there on the date of the auction or foreclosure sale and after he refused to lend you the money you said you could borrow it from anybody you wanted to?
“A. No, I didn’t say that.
“Q. What did you say again?
“A. I said that I could borrow money elsewhere, I could go to the First National Bank at Florence if I wanted to, but I wouldn’t go there because I was going to the First National Bank in Guntersville.”

In Mr. Williams’ affidavit in opposition to the Bank’s motion for summary judgment is the following:

“I asked the two SBA representatives to give a showing that I was the high bidder and the money would be obtained from another source. They very obligingly did.
“I went immediately to the First National Bank and asked for an $8,500.00 loan. Mr. Willis, senior, and Cashier John Brookshire, were at the loan desk and responded, ‘The money is here for you; when do you want it?’ My request was that the money be made available today, but I won’t need the loan unless I can get the lease on the building transferred to me. ‘I’ll see about that tomorrow and let you know.’
“I went to see Mr. MaGahey to get the lease transferred and got this answer: ‘. . . the bank has nothing to do with the lease.’ That meant I could not get the building, and declined the loan with grateful thanks to Mr. Brookshire and Mr. Willis.”

The trial court rendered summary judgment in favor of appellee on two grounds: (1) the contract was too vague, indefinite, and uncertain to support a cause of action and (2) the plaintiff failed to show that he could not obtain funds from another source on grounds as favorable as promised by the defendants.

Apparently, existence of the alleged contract is conditioned upon the happening of certain events. Scott v. Moragues Lumber Co., 202 Ala. 312, 80 So. 394 (1918). Mr. Williams says that Mr. McGahey told him that if he would go to the sale conducted by the SBA and bid the inventory of the business in at a price which would save the bank from its prospective loss of $1,250 which it had loaned the previous owner of the business, then the bank would loan him the money to pay the SBA. The condition precedent was that Williams bid in the property at a price and sell those same goods at a price which would pay off the loan to Williams with enough money left over to also pay the bank the $1,250 which it had invested in the business. From a reading of the record there is no evidence that the condition precedent was met. In fact, by the very terms of the condition precedent, it seems impossible for Williams to have performed it. In other words, Williams would have had to bid the property in, and sell the property at a price adequate to hold the bank harmless. It would be impossible for Williams to sell the goods at the very moment he was to get the loan from the bank and pay the SBA.

Moreover, even assuming there was a breach of contract, it is clear that Mr. Williams is entitled only to nominal damages.

“This court, in Bixby-Theirson Lumber Co. v. Evans, 167 Ala. 435, 52 So. 844, 29 L.R.A. [N.S.] 194, 140 Am.St.Rep. 47, wrote:
“ ‘It seems to follow, as was noted in Gooden v. Moses, 99 Ala. 230, 13 So. 765, that ordinarily the damages for the breach of a contract to lend money cannot be more than nominal.’
“In Baxley v. Tallassee & M.R.R. Co., 128 Ala. 183, 29 So. 451, it was held that the complaint should contain an averment of the special circumstances and that the defendant had notice.
“In Bixby-Theisen Co. v. Evans, 174 Ala. 577, 57 So. 40, this court wrote:
“ ‘It was competent for the plaintiff to show that in the course of the negotiations leading up to the contract he had communicated to the representatives of the defendant information of the fact that he would be unable to get money elsewhere. Defendant’s notice of this special circumstance was a condition upon which plaintiff’s right to the recovery of substantial damages depended. Bixby v. Evans, supra, 167 Ala. 431, 52 So. 843, 29 L.R.A. (N.S.) 194, 140 Am.St.Rep. 47.’ ” McMillian Lumber Co., v. First National Bank of Eutaw, 215 Ala. 379, 380, 110 So. 602 (1926).
“ ‘Generally, the breach of a contract to loan money will impose a liability for nominal damages only, because no injury will result as the same amount may be borrowed from another on the same terms. But special circumstances made known to the lender and in contemplation of the parties when the contract is made may impose a Liability for substantial damages. Bixby-Theisen Lumber Co. v. Evans, 167 Ala. 431, 52 So. 843, 29 L.R.A. (N.S.) 194, 140 Am.St.Rep. 47; 17 C.J., p. 865, headnote 17.” McMillian Lumber Co., supra, at 381, 110 So. at 603.

Normal damages are “a small sum fixed, without regard to the extent of harm done, by the custom of the jurisdiction in which the action is brought.” Corbin on Contracts, Vol. 5, § 1001, p. 29-30. See Kelly v. Fahrney, 97 F. 176 (C.C.A. 8th, 1899).

The judgment in this cause is hereby affirmed.

AFFIRMED.

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

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

BEATTY, J., with whom MADDOX and SHORES, JJ., concur, dissents.

BEATTY, Justice

(dissenting):

I dissent.

The trial court rendered summary judgment against the plaintiff on two grounds:

1. The contract was too vague, indefinite, and uncertain to support a cause of action; and
2. The plaintiff failed to show that he could not obtain funds from another source on grounds as favorable as promised by the defendants.
Both of these grounds are erroneous.

In his complaint, the plaintiff alleged a contract as follows:

“2. That, president of the said bank, Hayse McGahey, promised if I, Charles W. Williams, would bid in the Lamarr Vice personal property SBA was advertising for sale at auction, the Bank would ‘furnish the money’ .
“4. Having completed after several days’ work, the two determinations named herein, Charles W. Williams, party of the second part [plaintiff in this action], promised, agreed and contracted as follows:
“(a). To bid on the Vice property at the auction and buy same unless some other bidder called out a bid over and above the maximum I was willing to pay.”

Thereafter, Williams bid in the property at the sale but was refused the loan by Mr. McGahey.

Williams is an elderly man who represented himself before this court on his appeal. Judging from the inartistic manner with which his brief is drawn, he drafted it himself. We accepted it, and allowed'him to make an oral argument to us. One of the grounds he insists upon focuses upon the summary judgment granted against him, for he states under his Proposition Law II: “On a Motion for summary judgment, the court cannot try issues of fact, can only determine whether there are issues to be tried,” and he cited Rule 56, ARCP, Committee Comments. In his argument under that proposition, he contends that the trial court’s summary dismissal was not based upon the factual issues.

will readily concede that much of the plaintiff’s brief and argument is unclear, and that this lack of clarity, in the view of some, may rise to a failure to abide by the requirements of Rule 28 ARAP. But if that is so, we should be guided by our own mandate under Rule 2, ARAP, which states:

“When an appellate court . on its own motion, shall determine that a party . . . has substantially failed to comply with these rules . . . the appellate court shall cause notice to be sent to the party in default, notifying him, in general terms, of the deficiency.

We knew his brief was deficient when it was filed, and we let him make an oral argument based upon that brief. Although I believe it sufficiently places before us the propriety of the summary dismissal, if others disagreed then we should have given him an opportunity to clarify his position. It is now too late for this court to affirm the case on the tenuous ground that we don’t understand what he states or what he wants.

On the merits of the appeal, the case ought to be reversed and remanded because Williams has stated a cause of action for breach of contract which would entitle him at least to nominal damages.

1. Pleadings are to be construed in favor of the pleader, and a complaint should not be dismissed unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Rule 8, ARCP; Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957).

This alleged contract was not vague and indefinite. The plaintiff has alleged that the defendant promised to lend the plaintiff the purchase price of a certain business if the plaintiff successfully bid in it, and the plaintiff promised to bid and buy it if he could buy it within the maximum he would pay.

Apparently, the trial court believed that these terms made the obligation of the plaintiff uncertain, that is, that the condition to his buying the property made his promised performance within plaintiff’s will, with no obligation to be bound. We have held, however, that a valid contract may be conditioned upon the happening of an event, even though the event may depend upon the will of the party who after-wards seeks to avoid its obligation. Scott v. Moragues Lumber Co., 202 Ala. 312, 80 So. 394 (1918); DiBennedetto v. DiRocco, 372 Pa. 302, 93 A.2d 474 (1953). Such promises so conditioned are not illusory. Corbin on Contracts, § 149.

If we examine the respective promises by the test for consideration, that is, detriment to the promissor-bank, or benefit to the promisee-plaintiff, consideration for the bank’s promise is established. The bank assumed an obligation it was not under prior to making its promise. The plaintiff obtained a benefit he had not enjoyed before, the obligation of the bank to lend the money. Plaintiff was obliged to bid, and defendant was obliged to lend if that bid was successful. A promise for a promise, pure and simple.

2. When the bank allegedly refused to lend the money, this was a breach of the contract. Ordinarily, where a complaint charges a breach of the duty owed to the plaintiff in such a manner that damages are presumed, it states a cause of action for nominal damages at least. Hinkle v. Ry. Express Agency, 242 Ala. 374, 6 So.2d 417 (1942). Plaintiff would not have been required to prove that he was unable to obtain funds from another source in order to state a cause of action for nominal damages. Such proof refers to substantial damages, not nominal damages.

Accordingly, the trial court was in error when it granted summary judgment on the bases mentioned, since that ruling was tantamount to a ruling that plaintiff had stated no cause of action. Therefore, I would reverse for further proceedings.

MADDOX and SHORES, JJ., concur.


author: JONES, Justice. BEATTY, Justice BLOODWORTH, Justice ALMON, Justice

text:
    HOMA-GOFF INTERIORS, INC., an Alabama Corporation, John Wayne Goff, Pal Shoemaker, and J. Henry Goff v. Geraldine W. COWDEN.
    SC 2277.
    Supreme Court of Alabama.
    Aug. 12, 1977.
    Rehearing Denied Nov. 4, 1977.

      Jesse M. Williams, III, and James W. Garrett, Jr., Montgomery, for appellants.
    W. Ernest Moss, William I. Hill, II, John M. Milling, Jr., for Hill, Hill, Carter, Franco, Cole & Black, Montgomery, for appellee.
   JONES, Justice.

This summary judgment case involves a counterclaim filed by the appellants, Homa-Goff Interiors, Inc., against Geraldine Cow-den, the appellee, claiming interference with a contractual relationship and unlawful refusal, by Mrs. Cowden, to grant consent to a sublease agreement between Homa-Goff and certain named prospective subtenants.

In February of 1974, a lease was entered into by Mrs. Cowden and Homa-Goff, John Goff, Pal Shoemaker, Henry Goff, and Thomas Gallion for a ten-year period. The lease was negotiated by Ted Cason, Mrs. Cowden’s son-in-law. The lease contained a clause which restricted the lessees’ power to sublet subject to the landlord’s written consent.

In October, Homa-Goff opened a furniture store on the leased premises. After several months in business, however, it became apparent to the appellants that, because of financial problems, they could not continue their operation. Therefore, they began seeking a subtenant. After some negotiation with the State of Alabama, the appellants, according to their counterclaim, reached a tentative agreement with the State to sublease the premises at a rental rate in excess of the rate paid by the lessees. Mrs. Cowden, exercising her option provided in the lease, refused'to approve the State as a sublessee.

Homa-Goff also attempted to sublease the property to James Rudd, Jr. The appellants and Rudd, Jr., had several meetings and set up a meeting at the leased premises. Upon arriving at the premises, John Goff discovered Ted Cason talking with Rudd’s father. Appellants charged in their counterclaim that Cason informed Rudd, Sr., that John Goff was without authority to rent the building, but that he, Cason, on behalf of Mrs. Cowden, could lease the building to Rudd, immediately, at a lower rental rate.

Rudd, Jr., testified at deposition that he had no intention of subleasing. John Goff testified at deposition that Rudd, indeed, was interested in subleasing and had inquired about prices. In any event, the building was eventually leased to Rudd, by Cason, for the same amount of rent paid by Homa-Goff.

Mrs. Cowden filed suit against the appellants claiming breach of the terms and conditions of the lease, consisting of failure to pay the November, 1975, rent installment. After Homa-Goff counterclaimed, Mrs. Cov/den filed a motion for summary judgment as to the counterclaim, which was granted by the trial Judge.

The trial Judge based his ruling upon two legal principles. First, the trial Judge ruled: “Alabama is one State that does not recognize in general a cause of action for interference with a contractual relationship.” Secondly, the trial Judge ruled: “[t]he landlord’s withholding of consent can be arbitrary and unreasonable.” From the order based on these rulings, Homa-Goff appeals. We reverse.

The threshold question is whether Mrs. Cowden, pursuant to ¶ 15(a) of the lease, may arbitrarily and capriciously reject a subtenant proposed by the lessee. This question, apparently, has never been considered by this Court. If we hold that the trial Judge was correct in ruling in the affirmative on this issue, we need not deal with the allegations concerning interference with a contractual relationship. And this for the reason that, if Mrs. Cowden may arbitrarily reject proposed subtenants, Homa-Goff was powerless to enter into any contractual relationship with the State or Rudd, Jr., without Mrs. Cowden’s approval.

It should be noted at the outset that, in the absence of a restrictive clause as set out in ¶ 15(a), the lessee generally has the right, without consent of the lessor, to assign his interest under the lease, or to sublet the premises, because the law looks with disfavor on restraints on alienation. 49 Am.Jur.2d, Landlord and Tenant, §§ 398, 481. ¶ 15(a) of the lease states:

“The Lessee shall not assign or sublease all or any part of the demised premises except by and with approval of the Lessor in writing. Should such approval be given, the assignment or sublease of said leased premises shall not release the Lessee of its obligation hereunder.”

The general rule throughout the country has been that, when a lease contains an approval clause, the landlord may arbitrarily and capriciously reject proposed subtenants. See 49 Am.Jur.2d, Landlord and Tenant, § 423; 51C C.J.S. Landlord and Tenant § 36(1); 31 A.L.R.2d 821. This rule, however, has been under steady attack in several states in the past twenty years; and this for the reason that, in recent times, the necessity of reasonable alienation of commercial building space has become paramount in our ever-increasing urban society.

Ohio has expressly rejected the general rule. Shaker Building Co. v. Federal Lime and Stone Co., 28 Ohio Misc. 246, 277 N.E.2d 584 (1971). In Shaker, the lease provision permitted assignment and subletting only with the permission of the landlord. The Ohio Court, in ruling on whether the landlord could arbitrarily withhold consent, stated:

“(W)here provision is made in a lease permitting assignment of rights thereunder, limited only by the requirement of prior consent of the lessor, such consent may not be withheld unless the prospective assignee is unacceptable, using the same standards applied in the acceptance of the original lessee.” 277 N.E.2d at 587.

The arbitrary and capricious rule has also been rejected in Illinois. Arrington v. Walter E. Heller International Corp., 30 Ill. App.3d 631, 333 N.E.2d 50 (1975). In Ar- rington, the situation was somewhat reversed in that the lessee had the right to refuse to consent to the occupation of the building by another lessee. The defendant leased the top fifteen floors from the plaintiff. The lease contained a provision which stated:

“Landlord covenants and agrees that it will not enter into any lease or other arrangement respecting the use of space on the ground floor, mezzanine and lower concourse of the building without the written consent of tenant, which consent shall not be unreasonably withheld.”

The Appellate Court points out that, in Arrington, the tenant expressly provided that he would not unreasonably withhold consent. The Court adds, however, that this was a mere recital of the law of Illinois which is:"

“Where the lease merely contains a provision — without more — granting a person, normally a landlord, the power to withhold consent, regardless of whether explicitly qualified to reasonable exercises of that power . . . the courts have held the person’s refusal to consent to a person acceptable by reasonable commercial standards to be an unreasonable exercise and thus violative of the lease.” 333 N.E.2d at 58. (Emphasis added.)

Guided by this rationale, we hold that, even where the lease provides an approval clause, a landlord may not unreasonably and capriciously withhold his consent to a sublease agreement. The landlord’s rejection should be judged under a test applying a reasonable commercial standard. This question, of course, becomes a question of fact to be determined by the jury. Therefore, we hold that the trial Judge erred in granting a summary judgment in favor of Mrs. Cowden regarding appellant’s claim alleging Mrs. Cowden was arbitrary and capricious in rejecting the prospective subtenants. It is a jury question whether Mrs. Cowden acted reasonably, and there is sufficient conflict of material fact to mandate a reversal.

While our decision is not limited to the particular facts before us, we can perceive no set of circumstances which would more dramatically support the reasons behind this rule, and the moral need for it, than the facts of this case. The tenant sought and secured a potential subtenant. Before a sublease agreement was consummated, Mrs. Cowden exercised her “right” under the lease to disapprove the proffered subtenant. Thereafter, however, she proceeded immediately to lease the same premises to the same person previously rejected. To accept as a tenant the very party rejected as a subtenant is, at the very least, evidence of extreme bad faith, for, in this instance, the act of disapproval became the act of approval.

Because we have ruled that a landlord may not arbitrarily and capriciously reject a subtenant when the landlord reserves the right of approval of sublessees, we must now address the issue whether Alabama law recognizes a cause of action for tortious interference with a contractual relation. The trial Judge is correct in stating that generally Alabama does not recognize a cause of action for the tortious interference with a contract. There are, however, two important exceptions to this rule which are set forth in Erswell v. Ford, 208 Ala. 101, 94 So. 67 (1922): The first involves employer-employee relationships; and the second occurs when a party to a lease has been induced, by fraud or coercion, to breach his contract. See McCluskey v. Steele, 18 Ala.App. 31, 88 So. 367 (1920). Appellants specifically allege, “Ted Cason . intentionally, fraudulently, maliciously and wrongfully made statements to James Rudd. . . .” Thus, under the exceptions enunciated in Erswell, the appellants have properly set forth a cause of action, and the trial Judge erred in granting summary judgment.

REVERSED AND REMANDED.

FAULKNER, J., concurs.

MADDOX, SHORES, EMBRY and BEATTY, JJ., concur specially.

TORBERT, C. J., and BLOODWORTH and ALMON, JJ., dissent.

BEATTY, Justice

(concurring specially).

I concur with the majority opinion of Justice Jones in which he maintains that the lessor may not arbitrarily reject a sub-lessee chosen by the lessee. In my opinion, clauses which restrict subleasing should be interpreted to call for the application of reasonable commercial standards unless the parties themselves expressly agree that the lessor’s decision, for whatever reason, is binding. This is so because it is probable that when contracting the parties expect each other to act reasonably.

I express no opinion upon the other aspects of the majority opinion, particularly regarding the reference to the effect of the moral point of view upon the decision in this case. The prospect of this Court’s (or any court) deciding individual cases upon the Court’s own moral assessments is something which might be useful in frightening little children into proper behavior, but its utility in decision-making deserves much study.

MADDOX, SHORES and EMBRY, JJ., concur.

BLOODWORTH, Justice

(dissenting).

I respectfully dissent.

Since 1853, this Court has upheld lease provisions which provide that there shall be no subletting without the express consent of the lessor. See: Nave v. Berry, 22 Ala. 382 (1853); Crommelin v. Thiess & Co., 31 Ala. 412 (1858); Maddox v. Wescott, et al., 156 Ala. 292, 47 So. 170 (1908); City Garage & Sales Co. v. Ballenger, 214 Ala. 516, 108 So. 257 (1926); Faucett v. Provident Mut. Life Ins. Co. of Philadelphia, 244 Ala. 308, 13 So.2d 182 (1943).

To overturn a century and a quarter of existing real estate law without giving contracting parties “fair notice” is my principal complaint with the majority’s opinion. At the very least, I think the majority ought to make the rule they have adopted “prospective.”

There must be literally tens of thousands of existing leases with similar “consent” provisions as to subletting as those in this case. Lawyers and judges should have a right to rely on existing well-settled property law interpretations by our courts. See my special concurrence in Nunn v. Keith, 289 Ala. 518, 524, 268 So.2d 792 (1972).

As Mr. Justice Almon points out in his dissent, in quoting from Mr. Justice Boul-din’s opinion in Faucett, supra, parties have a right to contract as they see fit so long as their contracts are not violative of the law, and I would add, or against public policy. Here, the parties made their contract; they ought to be bound by it. I would add that I concur in the other views expressed in Justice Almon’s dissent.

TORBERT, C. J., and ALMON, J., concur.

ALMON, Justice

(dissenting):

I would adhere to the view adopted by a majority of jurisdictions in this country. Citizens should have the right to contract. Art. 1, Sec. 22, Constitution of Alabama, 1901.

In my judgment, the court has rewritten this contract so as to rid it of its alleged moral harshness. There are many valid reasons why a lessor would insist that a lease-contract contain a provision to prevent subletting without the consent of the lessor. Why should a lessor be obligated to accept a sub-tenant chosen by a defaulting original tenant on the basis of “commercial standards,” (whatever they may be) when the lessor’s contract plainly gives him a contrary right?

Moreover, the leasing of real property for a term of years conveys an estate. The majority has enlarged that estate.

“Under the plenary power to make contracts, not violative of law, the lessor and lessee may stipulate there shall be no subletting of the property nor any portion of same without advance consent of the lessor evidenced by written endorsement on the lease. This is said to be restrictive of the estate which would otherwise pass to the lessee. Annotation 117 Am.St.Rep. 92 et seq.; 32 ArnJur. 333; Maddox v. Westcott, 156 Ala. 492, 47 So. 170, 16 Ann.Cas. 604.” Faucett v. Provident Mut. Life Ins. Co. of Philadelphia, 244 Ala. 308, 13 So.2d 182 (1943).

I respectfully disagree with the judgment of the Court.

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

On Rehearing

APPLICATION FOR REHEARING OVERRULED.

FAULKNER and JONES, JJ., concur.

BEATTY, J., extends special concurrence, with whom MADDOX, SHORES and EM-BRY, JJ., join.

BLOODWORTH, J., dissents on rehearing, with whom TORBERT, C. J., and AL-MON, J., join.

BEATTY, Justice (special concurrence extended).

We now have held that reasonable commercial standards will be applied to restrictive subleasing clauses. As I view the application of this principle to those clauses, we have simply refused to interpret those terms literally, but instead we have applied a constructive condition precedent to them, that being that the lessor will not unreasonably withhold his approval. Phrasing the condition in another way, if a reasonable and prudent businessperson would not object to the sublessee, the lessor will not be allowed to arbitrarily disapprove of him unless the parties have expressly bargained to give the lessor that power without regard to commercial standards.

The judicial construction of conditions in written instruments is far from a new development in law. Indeed, Lord Mansfield’s opinion in Kingston v. Preston, 2 Doug.K.B. 689 (1773) appears to be one of the first, if not the first, to apply the doctrine to contracts. The effect of the doctrine has been that courts not infrequently do not enforce the literal terms of written undertakings but, in order to avoid unjust results otherwise reached by literalism, impose constructive conditions. See Farns-worth, Disputes over Omission in Contracts, 68 Colum.L.Rev. 860 (1968).

A statement of this principle as it is applied in Alabama is found in Norwood Hospital, Inc. v. Howton, 32 Ala.App. 375, 26 So.2d 427 (1946):

This responsibility of the court (to adhere to the expressed stipulations of a written agreement) must, however, yield to a reasonable construction of all contracts in an effort to secure and safeguard the real intention of the parties in the light of their mutual understandings and the objects and rights intended to be accomplished and protected. .

Our Court there found analogies in the cases dealing with the satisfaction of either personal taste or mechanical fitness. Alabama cases dealing with contracts involving the latter have construed them to require a good faith satisfaction. That is, if the person to be satisfied should be satisfied, he will be deemed to be satisfied. For other applications of the principle see Electric Lighting Co. v. Elder Bros., 115 Ala. 138, 21 So. 983 (1896); Jones v. Lanier, 198 Ala. 363, 73 So. 535 (1916); Utley v. Stevens, 221 Ala. 666, 130 So. 405 (1930); Manufacturers’ Finance Acceptance Corp. v. Woods, 222 Ala. 329, 132 So. 611 (1931); Shelton v. Shelton, 238 Ala. 489, 192 So. 55 (1939). In my view, this case is analogous to those cases requiring satisfaction, viz., if the lessor is to be satisfied with the proposed lessee, the condition is fulfilled when he should have been satisfied, based upon reasonable commercial standards.

The members of the American Law Institute support this view. In their 1977 publication of 2 Restatement of Property 2d, Landlord and Tenant, just issued, this recommendation appears:

§ 15.2(2) A restraint on alienation without the consent of the landlord of the tenant’s interest in the leased property is valid, but the landlord’s consent to an alienation by the tenant cannot be withheld unreasonably, unless a freely negotiated provision in the lease gives the landlord an absolute right to withhold consent.

As my original concurrence pointed out and as the Restatement recommends, the parties remain completely free to expressly agree to the landlord’s absolute right to consent to his own “satisfaction” with the proposed sublessee.

MADDOX, SHORES and EMBRY, JJ„ concur.

BLOODWORTH, Justice (dissenting on rehearing).

I would grant rehearing and affirm the trial judge’s grant of summary judgment. Thus, I must respectfully dissent from the majority’s overruling of the application for rehearing. In my judgment, the majority opinion has the effect of rewriting tens of thousands of existing real estate leases in Alabama which were negotiated by lessors and lessees in good faith reliance on our existing law.

This Court, in City Garage Sales v. Ballenger, 214 Ala. 516, 108 So. 257, in 1926, over 50 years ago, expressly held valid a provision “that the premises should not be relet . . without the consent of the lessor.”

The minority rule (followed in only two or three states) has now been adopted by our Court. The majority rule which recognizes the provision as valid, unambiguous and enforceable, has been followed in at least seven jurisdictions, New Jersey, New York, Washington, D. C., California, Maryland, and New Hampshire.

I am disappointed that, at least, the majority did not make this new rule “prospective” in its application. It would have caused no harm and it would certainly have protected those tens of thousands of landlords, tenants and lawyers who have relied on our unbroken line of judicial precedent. I plead, as my Brother Justice Almon did in a recent case, for judicial restraint.

TORBERT, C. J., and ALMON, J., concur.

      . Because the trial Court’s ruling is not grounded on the specificity of pleading requirement of ARCP, 9(b), nothing in this opinion should be construed as upholding the sufficiency of the complaint in this regard; and this for the reason that it is not the function of an appellate court to make initial rulings, nor to review issues not presented.


author: HOLMES, Judge.

text:
    Marsha L. SHIRLEY v. Jimmy S. SHIRLEY.
    Civ. 964.
    Court of Civil Appeals of Alabama.
    April 27, 1977.
    Rehearing Denied May 25, 1977.

      Miles T. Powell, Decatur, for appellant.
    John S. Key, Eyster, Eyster & Key, Decatur, for appellee.
   HOLMES, Judge.

This is a divorce case.

The Circuit Court of Morgan County divorced the parties, made an award of support for the wife and minor child, and divided the property. From this decree the wife appeals. The dispositive issue before this court is whether the learned and distinguished trial judge abused his discretion in the award of support for the minor child and the wife, and whether the trial court abused its discretion in the division of property. We find such abuse and reverse and remand.

The record in this case consists of over 450 pages of transcript. This court has carefully reviewed the entire record and, viewing the evidence with the attendant presumptions accorded the trial court, finds the following.

The parties were married in 1966. The wife, at the time of marriage, was 16 years of age and lacked 2 years of completing high school. The husband, at the time of the marriage, was 20 years old and was employed by a local newspaper in the advertising department. The wife thereafter completed high school. The husband by extremely hard work, determination, and perserverance, became a real estate broker. A child was born in 1972; at the time of the divorce hearing, she was 4 years old.

In 1971, the first year the husband was in the real estate business on virtually a full time basis, his income was approximately $16,000. In 1972, the husband’s income was approximately $40,000; in 1973, $90,000; in 1974, $95,000; in 1975, $96,000; and for the year 1976, his income was projected to be in excess of $100,000. The income of the husband was generated by the husband forming his own real estate company, employing 6 or more salespersons and, in general, devoting virtually all of his time and talents to the business.

During the marriage, the wife did not work and was, to say the least, not interested in the husband’s business. Additionally, the wife made little if any, effort to improve herself educationally or otherwise. The wife did, however, care for the parties’ child and performed normal household duties for the entire family.

Since forming the real estate business and during the marriage, the husband has acquired $171,000 in savings and several parcels of real property. The husband testified that his accumulated savings was to be used to build an office for his real estate business. He specifically testified that the present office was totally inadequate and was in need of repair. The value to the husband of the real estate in excess of the mortgages thereon is approximately $80,-000. Included in this real estate is the parties’ home which the husband valued at $42,500, with a mortgage of $20,000. The mortgage payments on the home are approximately $200 per month.

There is a great deal of testimony regarding the wife’s conduct and attitude toward the husband. Suffice it to say there is ample evidence that the wife was extremely jealous toward her husband. This jealousy was so extreme that the wife sought psychiatric help. Her conduct toward the husband was spiteful and embarrassing. She did little to encourage his business activities. There is also ample evidence that the husband spent little time with his family, devoting most of his time to building a successful business.

With the above before the trial judge, the parties were granted a divorce on the ground of incompatibility of temperament. The custody of the minor child was awarded to the wife, the husband being given visitation rights. The home was awarded to the wife. However, she apparently was responsible for the mortgage payments. The household furniture was to remain with the wife, and she was given a 1973 Datsun automobile. Support for the child and wife was set at $600 per month. No breakdown of what portion of the $600 was to be periodic alimony and what portion was to be child support was made. Additionally, the husband was to pay up to $100' per month for psychiatric help if the wife chose to receive such help.

The wife received no portion of the $171,-000 savings, and she was required to convey to the husband her interest in all the real estate owned by the parties. It should be noted that most of the real estate referred to hereinabove was jointly owned by the parties with the right of survivorship.

I

The wife, through counsel, first contends that since the parties owned the real estate jointly, the trial court’s action requiring the wife to convey her interest to the husband amounts to the wife having to pay alimony to the husband.

Both parties were properly before the court and had submitted to the jurisdiction of that court. This argument is therefore adequately disposed of by our presiding judge in Body v. Body, 47 Ala.App. 443, 256 So.2d 184 (1971). See also, Phillips v. Phillips, 52 Ala.App. 234, 291 So.2d 322 (1974). We accordingly find no merit in this contention.

II

In addressing ourselves to the primary issue, we begin with the proposition that when a trial court renders a decree after a hearing ore tenus, such decree is presumed correct if supported by the evidence. 2A Ala.Digest Appeal & Error <s=»934(l). Additionally, with regard to the determination of alimony, the division of property, and the amount of child support in a divorce case, such matters are within the sound discretion of the trial court and that discretion will not be reversed except for palpable abuse. Clary v. Clary, 56 Ala.App. 494, 323 So.2d 380 (1975); Capra v. Capra, 56 Ala.App. 90, 319 So.2d 286 (1975); Pruett v. Pruett, Ala.Civ.App., 333 So.2d 580 (1976). Put another way, the amount of the awards is discretionary with the trial court, but the exercise of such discretion is judicial, must not be arbitrary, and is reviewable on appeal. Hardwick v. Hardwick, 55 Ala.App. 156, 314 So.2d 76 (1975).

Furthermore, there are no fixed standards for determining the amount of alimony or for dividing the parties’ property. Each case must be decided on the basis of its own facts and circumstances. Hutton v. Hutton, 284 Ala. 91, 222 So.2d 348 (1969); Helms v. Helms, 54 Ala.App. 551, 310 So.2d 475 (1975). The division of property is not required to be on an equal basis, but nonetheless must be granted upon the circumstances of the case. Walker v. Walker, 56 Ala.App. 98, 319 So.2d 718 (1975); Conwell v. Conwell, 56 Ala.App. 188, 320 So.2d 694 (1975).

While there is no fixed standard in determining what is a proper award, factors to consider include future prospects of the parties, their ages, sex, health, station in life, how long they were married, and in appropriate cases, the conduct of the parties with reference to the cause of the divorce. Brooke v. Brooke, 57 Ala.App. 704, 331 So.2d 715 (1976). It is appropriate to point out that the trial court may consider the conduct of the parties, even though the divorce was granted, as it was in this instance, on the ground of incompatibility of temperament. See Brooke, supra; and Gamble v. Gamble, 53 Ala.App. 168, 298 So.2d 254, cert. denied, 292 Ala. 721, 298 So.2d 260 (1974).

It is clear that the distinguished trial judge, in the matter now before this court, relied heavily on the aspect of the wife’s conduct. It is equally clear that there is ample evidence that her conduct in large measure caused the marriage to fail. However, the fact remains that the parties were married for 10 years, the wife having married the husband when she was 16 years old; that the wife during this time performed normal household duties; that she was a good mother; that she has no marketable skill; that she has only a high school education; that she has some slight psychiatric or emotional problem.

On the other hand, the husband is a prosperous, industrious young business man. His income is over $100,000 a year; he has $171,000 in savings; he has real property with a value exceeding the indebtedness thereon of approximately $80,000; his health is apparently good; his prospects in life are good.

As noted earlier, the wife and child received $600 per month total as alimony and child support. Additionally, the wife was awarded the homeplace, but apparently is responsible for the mortgage payments of approximately $200 per month. She also received certain personal property and certain specific medical care.

Considering all of the above, we find that the learned and distinguished trial judge did abuse his discretion and that the award to the wife and the award of child support is contrary to law and equity. Brooke v. Brooke, supra; Grant v. Grant, 49 Ala.App. 559, 274 So.2d 329, appeal after remand, 52 Ala.App. 365, 292 So.2d 660 (1973), cert. denied, 292 Ala. 722, 292 So.2d 662, cert. denied, 419 U.S. 867, 95 S.Ct. 124, 42 L.Ed.2d 105 (1974).

We therefore find that the wife is entitled to $900 per month as periodic alimony. The wife, on behalf of the child, is entitled to $400 per month as child support. The wife is entitled to the homeplace free of any encumbrances thereon. Specifically, the husband is, as soon as possible, to pay the existing mortgage in full and convey to the wife all his right, title and interest in the property. All other provisions of the trial court’s decree not inconsistent with the above are to remain in force and effect.

This case is due to be affirmed in part and reversed and remanded in part for the entry of a decree not inconsistent with this opinion.

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

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


author: TORBERT, Chief Justice.

text:
    In re Marsha L. SHIRLEY v. Jimmy S. SHIRLEY. Ex parte Jimmy S. SHIRLEY.
    SC 2620.
    Supreme Court of Alabama.
    Nov. 4, 1977.
   TORBERT, Chief Justice.

WRIT QUASHED, Ala.Civ.App., 350 So.2d 1041, AS IMPROVIDENTLY GRANTED.

MADDOX, FAULKNER, JONES, SHORES, EMBRY and BEATTY, JJ., concur.


text:
    Helen MANNING and All Risk Insurance Company v. Ramon Richard ZAPATA and Everett Gilliland d/b/a City Ambulance.
    Civ. 1220.
    Court of Civil Appeals of Alabama.
    Oct. 12, 1977.

      William P. Sawyer, Montgomery, for appellant.
    William I. Hill, Montgomery, for appel-lees.
   HOLMES, Judge.

This is an appeal by appellant-All Risk Insurance Company (hereinafter referred to as All Risk) from an order of the Circuit Court of Montgomery County.

The appellant initiated the proceedings below by filing a subrogation suit in the circuit court. The complaint alleged that All Risk had been called upon to pay for damages to its insured’s automobile as a result of defendant’s negligence. The insurer is now attempting to recover from defendant the monies which it had to pay to its insured. The accident occurred on September 5,1975, and the above suit was filed on April 27, 1976.

All Risk filed a motion to amend its complaint on March 28, 1977 (approximately 19 months after the accident), asking that Standard Fire Insurance Company (hereinafter Standard) be substituted in the place of All Risk as the proper plaintiff. Defendant then filed a motion to strike All Risk’s motion to amend. The circuit court, after hearing oral argument, held that All Risk’s amendment was allowed, but that it did not relate back to the original filing of the complaint. This action by the trial court effectively barred All Risk’s complaint of negligence since more than a year had expired from the date of the accident and the filing of the amendment. Judgment was then entered for defendants and plaintiff appeals.

The question before this court is whether the trial court erred in holding that the amendment of All Risk, in which it sought to strike itself and substitute Standard as the party plaintiff, did not relate back to the time of filing the original complaint.

Rule 15(c), ARCP, provides in pertinent part that:

“Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading except as may be otherwise provided in Rule 13(c). An amendment changing the party against whom a claim is asserted relates back if the foregoing provision is satisfied and, within the period provided by law for commencing the action against him, the party to be brought in by amendment (1) has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him. . . . ” [Emphasis supplied.]

Appellees, through able counsel, argue that the criteria as stated in part (2) of Rule 15(c) has not been fulfilled. Appellee contends that it did not have notice, within the applicable period of limitations, that Standard was the collision carrier and, therefore, the amendment should not relate back. We disagree.

Rule 15(c) was obviously written to protect defendants. It is to that extent that the criteria of Rule 15(c), as relied on by appellees, applies since the rule was adopted to protect potential defendants. The rule was designed to cover the situation where a defendant is attempted to be added. It is at that point that the inquiry as to the defendant’s knowledge that he should be added is made. In this instance, his knowledge as to whether Standard should have been added as the plaintiff is irrelevant. Therefore, it is not necessary for the defendants, in this case, to have known that Standard was the proper party plaintiff.

However, it has been held that Rule 15(c) can be applied by analogy to amendments changing plaintiffs. Board of Water & Sewer Commissioners of City of Mobile v. McDonald, 56 Ala.App. 426, 322 So.2d 717 (1975).

The applicability of Rule 15(c) to amendments seeking to add new plaintiffs is put in its proper perspective in 6 Wright & Miller, Federal Practice and Procedure, § 1501, at 523-24:

“Although Rule 15(c) does not expressly apply to a new pleading adding or dropping plaintiffs, the Advisory Committee Note to the 1966 amendment of the rule indicates that the problem of relation back generally is easier to resolve in this context than when it is presented by a change in defendants and that the approach adopted in Rule 15(c) toward amendments affecting defendants extends by analogy to amendments changing plaintiffs. As long as defendant is fully apprised of a claim arising from specified conduct and has prepared to defend the action against him, his ability to protect himself will not be prejudicially affected if a new plaintiff is added, and he should not be permitted to invoke a limitations defense. This seems particularly sound inasmuch as the court will require the scope of the amended pleading to stay within the ambit of the conduct, transaction, or occurrence set forth in the original pleading.
“The courts seem to concentrate on the notice and identity of interest factors as they do in the case of amendments changing defendants. Thus, an amendment substituting a new plaintiff has been held to relate back if the added plaintiff is the real party in interest. . . . ”

As is evident from the record and briefs filed with this court, the appellee was fully apprised as to the claim which arose from the specified conduct (i. e., automobile accident). The claim is the same whether it is brought by All Risk or Standard. Therefore, appellee’s ability to protect itself will not be prejudicially affected because the original claim remains the same. Thus, the defendant cannot invoke a limitations defense solely because a new plaintiff has been substituted, if he has not been prejudiced. This court can find no such prejudice in this case.

We further note that it has been held that an amendment adding a new party does relate back when the old and new parties have such an identity of interest so that such relation back would not be prejudicial. Williams v. United States, 405 F.2d 234 (5th Cir. 1968); 3 Moore's Federal Practice, 2d ed., at 1043-45; 6 Wright & Miller, Federal Practice and Procedure, at 524.

The standard which courts use in determining if an identity of interest exists, so as to allow relation back, is set out in 3 Moore’s Federal Practice, footnote 11, at 1044-45:

“Courts articulating the ‘identity of interest’ standard generally require a substantial relationship between the old and new parties with regard to the litigation, as well as a sufficiently analagous legal position within the lawsuit to preclude the assertion of a new cause of action. Many of these cases involve substituting or adding related corporations, . . ”

After a careful review of the record, we find such an identity of interest between All Risk and Standard so as to allow the amendment to relate back. What evidence we have before us reveals that All Risk and Standard have the same employees, occupy the same office space, and the majority stockholder of All Risk is also the majority stockholder of Standard. All Risk services the policies and handles the claims on policies written through Standard.

We, therefore, conclude that the amendment substituting Standard as the party plaintiff did not introduce into the case a new or different cause of action. The claim asserted, after the substitution, arose out of the conduct, transaction or occurrence set forth in the original complaint. The complaint, before and after the substitution, centered around the pivotal question of whether defendant is liable to the insurance carrier for damages it paid out to the insured due to defendant’s alleged negligence. The interest is identical, in the sense that both All Risk and Standard seek to recover from defendant monies which the insurer had to pay.

Furthermore, the defendant can in no way be prejudiced by lack of notice or change in the cause of action because there has been no change and notice was given when the initial complaint was filed. The only difference is that the claim would now be brought by the real party in interest, as is required by Rule 14, ARCP. See Celanese Corp. of America v. John Clark Industries, 214 F.2d 551 (5th Cir. 1954).

Since Standard is the one who actually paid the claim of its insured, it is clear that they are the real party in interest. According to Alabama and federal cases dealing with similar situations, the amendment seeking to substitute a real party in interest should be allowed to relate back to the original filing. See Board of Water & Sewer Commissioners of City of Mobile v. McDonald, supra; American Fidelity & Casualty Co. v. All American Bus Lines, 190 F.2d 234 (10th Cir. 1951); 6 Wright & Miller, Federal Practice and Procedure, at 524.

In summary, the amendment should relate back due to the fact the defendant had notice of the claim; the claim arose out of the same transaction or occurrence; and the identity of interest between the original and substituted plaintiff is the same. The trial court is therefore reversed and the cause remanded to the trial court.

REVERSED AND REMANDED.

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


text:
    Irvin FREEMAN, Sr. v. Julia Belle FREEMAN.
    Civ. 1242.
    Court of Civil Appeals of Alabama.
    Oct. 12, 1977.

      Murray W. Beasley, Tuscumbia, for appellant.
    Roger H. Bedford, Bedford & Bedford, Russellville, for appellee.
   HOLMES, Judge.

This is an appeal from the Circuit Court of Colbert County. The trial court found the appellant-husband owed the wife a sum of money and ordered certain property of the husband’s sold. The money owed to the wife by the .husband arose from a previous decree of divorce. The husband has appealed and we affirm.

The husband’s argument for reversal of the trial court’s action is as follows:

“The Appellant strongly urges that the Circuit Court of Colbert County, Alabama, did on the 2nd day of July, 1975, judicially decide and determine the exact issues presented by the petitioner’s petition and thereby the petition of the Appellee filed the 14th day of February, 1977, is res judicata. Gray vs. Gray, [91 Fla. 103] 107 So. 261, Irvin [Irwin] vs. Alabama Fuel and Iron Company, [215 Ala. 328] 110 So. 566.”

The husband did file an answer to the wife’s petition and one aspect of this answer is what was formerly referred to as a plea of res judicata. However, this court has diligently searched the record and we find no action or ruling by the trial court regarding the answer of res judicata. Additionally, we cannot from the record before us determine whether this question was in fact even considered by the trial court.

Suffice it to say that matters not ruled upon by the trial court cannot be considered on appeal. Smith v. Winkles, 49 Ala.App. 454, 273 So.2d 215 (1973); Dorroh v. Jefferson County, 264 Ala. 335, 87 So.2d 619 (1956); 2 Ala.Dig. Appeal & Error «8=»242(1).

The case is due to be and is affirmed.

AFFIRMED.

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