author: EMBRY, Justice.

text:
    Ronald J. TIDWELL et al. v. IRON AND STEELWORKERS CREDIT UNION, INC., et al.
    SC 2532.
    Supreme Court of Alabama.
    Feb. 3, 1978.
    Rehearing Denied March 31, 1978.
    Hugh A. Locke, Jr., Birmingham, for appellants.
    Maurice Rogers, Birmingham, for appel-lees.
   EMBRY, Justice.

Appeal by Ronald and Mary Tidwell from a judgment entered by the trial court denying them damages and dissolving a preliminary injunction. We affirm.

The Tidwells filed a bill for an injunction to enjoin the foreclosure sale of their property pursuant to an alleged default on a mortgage. Named as defendants were the Iron and Steelworkers Credit Union, Inc.; Robert L. Hall, its president, and Maurice Rogers, attorney for Credit Union in the foreclosure sale. A temporary restraining order, followed by a preliminary injunction, was issued by the court and the action was set for final hearing on the merits. Before trial, the Tidwells, by amendment, added Loyal American Insurance Company as a party defendant to the suit.

The action sought to establish disability insurance coverage in connection with a loan and to secure the benefits from the coverage. Alternatively, the Tidwells claimed the Credit Union, through its agents and attorney misrepresented there was such insurance; or negligently failed to inform the Tidwells there was no insurance; or negligently failed to procure insurance to pay the mortgage indebtedness in the event of disability. The Tidwells also sought damages for delay in the construction of their house for Credit Union’s failure to advance additional monies as a construction loan. The defendants denied the Tidwells’ claims and the action was submitted to the trial judge, who heard the evidence without a jury.

The trial court’s judgment provides an excellent summary of the evidence:

“1. * * * on December 19, 1975, the Plaintiffs entered into a loan agreement with the Defendant, Iron and Steelworkers Credit Union, wherein the Plaintiffs borrowed from the credit union the sum of $48,677.93 together with a finance charge of $1,460.34 for a period of ninety days. The repayment of said loan to be one installment due on March 18, 1976. The proceeds of said loan included the refinancing of previous loans borrowed by the Plaintiffs from the credit union evidenced by prior notes and additional sums to be advanced in the amount of $22,776.55. It was known that the monies borrowed by the Plaintiffs were used and to be used for the reconstruction of a house that Plaintiffs had purchased and moved to land owned by them. The credit union had further agreed that when the reconstruction of the house was completed it would enter into a permanent real estate loan with the Plaintiffs for seventy-five percent of the appraised value of the property at a stipulated interest rate and term.
“On the disclosure form and note of December 19, 1975, Mr. Tidwell signed the form declining Credit Life Insurance, but agreed to a charge of $253.82 for Life Insurance. The closing statement prepared by the closing attorney designated this insurance charge as ‘Mortgage Protection Insurance Premium $253.82.’
“2. Tidwell failed to have a physical examination to institute the life insurance coverage and the life insurance policy was not issued. The premium charged for the policy was thereafter credited to Tidwell’s loan account.
“3. The credit union offers to its borrowers for a premium charge credit life insurance which pays off the indebtedness in the event of death or total and permanent disability to a maximum of $10,000. The loan note and disclosure form signed by Mr. Tidwell provide lines for the borrower to accept or decline such coverage. As previously stated, Tidwell declined such insurance.
“4. Tidwell had previously borrowed money from the credit union in connection with the construction on three occasions. He requested and paid for credit life, insurance on the first two loans on July 15, 1974 for $3,000 and on December 26,1974 for $11,494.18. He declined credit life insurance on the loan of April 25, 1975 for $15,279.71. The evidence showed that on each occasion when Tidwell requested credit life, a certificate was given to him describing the coverage. No such certificate was given in connection with the December 19, 1975 loan. Tidwell was also made aware of the credit life disability benefits by a pamphlet sent to all members describing the advantages of credit life coverage.
“5. The house construction required considerably more time and money to complete then planned by Tidwell and the December 19, 1975 loan was made to consolidate the prior loans that had matured and to loan the final sums needed for completion, all leading to a long-term loan.
“6. Construction was further delayed by weather and unanticipated costs and the credit union extended the last loan. On June 9, 1976, Tidwell was advised by letter that he had until June 21 to pay the debt. At this time the credit union was attempting to close the permanent loan. On July 14, 1976, Tidwell suffered a heart attack and has been unable to resume his regular employment since that date. His physician testified that Tidwell may have possible future disability. During the months of August, September and October, 1976, the credit union’s attorney attempted to have the loan closed with Tidwell’s power of attorney, but Tidwell’s attorney refused to do so for the stated reason of possibly endangering Tidwell’s health.
“The credit union began foreclosure of the December 19, 1975 loan in November, 1976 and this action was thereafter filed.”

Upon this evidence the trial court rendered judgment against the Tidwells. The trial court found: no contract of insurance providing disability benefits was ever sought or requested by the Tidwells in connection with the loan in question; there was no agreement, expressed or implied, between the Tidwells and Credit Union for Credit Union to provide disability insurance in connection with the loan; the only representations made by Credit Union were to the effect disability insurance was available if desired, but the Tidwells declined this insurance; Credit Union was not negligent in failing to provide disability insurance; and Credit Union was in no way responsible or caused the delay in construction of the house. The judgment decreed that the relief sought by the Tidwells was denied and dissolved the preliminary injunction.

In brief, the Tidwells advance several theories for reversal of the trial court’s judgment; however, all of the theories involve factual disputes. An example of such is the Tidwells’ pivotal contention that the trial court erred in finding no contract of insurance providing disability benefits. The Tidwells contend that at the closing they requested disability protection and an agent of Credit Union stated Credit Union would purchase mortgage protection insurance. The Tidwells claim the premium was paid with the understanding mortgage protection insurance included disability benefits.

Reviewing the record, it shows there was conflicting evidence on this point. The evidence includes opposing testimony to the effect that at no time was there ever a request or conversation with any of the defendants, or their agents, concerning a desire for disability insurance made by the Tidwells. The Tidwells admit the evidence was disputed as to whether there was a request for disability insurance or not.

When reviewing cases of this kind, it is well recognized that this court cannot substitute its judgment for that of the trial court as to the effect to be given conflicting oral testimony dealing with questions of fact. McCaghren v. McCaghren, 294 Ala. 89, 312 So.2d 384 (1975); White v. Sims, 295 Ala. 244, 326 So.2d 733 (1976).

There was substantial evidence to support the findings of the trial court and the conclusions and holding based upon those findings are correct under applicable law. This being the case the judgment was neither clearly erroneous nor manifestly unjust. Rafield v. Johnson, 294 Ala. 235, 314 So.2d 695 (1975); White v. Sims, supra.

AFFIRMED.

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


source: Caselaw Access Project

license: Public Domain

text:
    REDWING CARRIERS, INC. v. ALABAMA PUBLIC SERVICE COMMISSION et al.
    SC 2727.
    Supreme Court of Alabama.
    Feb. 3, 1978.
    Rehearing Denied March 31, 1978.

      J. Douglas Harris, Montgomery, for appellant.
    George M. Boles, Birmingham, for appel-lee, R. C. Van Lines, Inc.
   EMBRY, Justice.

This appeal is by Redwing Carriers, Inc., from a judgment of the Circuit Court of Montgomery County affirming an order of the Alabama Public Service Commission granting to R. C. Van Lines, Inc., a permit to operate as a contract motor carrier in intrastate commerce. We affirm.

R. C. Van Lines filed its application with the APSC seeking authority under the Motor Carrier Act of Alabama (Tit. 48, §§ 301(1), et. seq., Code 1940) to operate as a contract carrier by motor vehicle in intrastate commerce over irregular routes, in the transportation of glue, adhesives, materials used in the manufacture of glue and adhesives, and chemicals, between the plant site and storage facilities of, or used by, Chem-bond Corporation in Covington County, Alabama, on the one hand, and on the other, all points and places in Alabama.

After notice, protests against R. C. Van Lines’ application were filed by Ross Neely Express, Inc.; Miller Transportation, Inc.; and Redwing Carriers, Inc., all common carriers.

The APSC held a hearing on R. C. Van Lines’ application but because a majority of the Commission did not hear the entire case, an examiner’s report and recommended order was filed. Miller did not appear at the hearing to continue its protest.

In the report and recommended order, the examiner recommended:

“ * * * the Applicant be granted authority by the Commission to institute a new operation as a contract carrier by motor vehicle, under a continuing contract with Chembond Corporation, in intrastate commerce over irregular routes, in the transportation of:
Glue and adhesives, and materials and chemicals used in the manufacture of glue and adhesives, in bulk, in tank vehicles, between River Falls, Alabama, on the one hand, and on the other, all points and places in Alabama.”

Both Ross Neely and Redwing filed exceptions to the examiner’s report and recommended order. In an order dated 6 October 1976, the APSC adopted the examiner’s summary of evidence, agreed with the examiner’s conclusion that the APSC should grant the authority as recommended, and made the following findings:

“We find the supporting shipper, Chembond, has distinct and specialized transportation needs that it is not able to have satisfied from existing transportation services. Further, we find that the grant of this application will not result in the necessity of the protesting carrier’s diminishing any service to the public. Therefore, we find that the grant of this application will be consistent with the public interest.
“The Applicant initially carried his burden of proving this fitness to hold contract carrier authority. Protestants challenged this because there was evidence of prior unauthorized operations by the Applicant. Nevertheless, we do not feel these unauthorized operations were such that would negate the showing that the Applicant is willing to conform to the provisions of the Motor Carrier Act and the rules and regulations of this commission.
“Therefore, we find that the Applicant is fit, willing and able to properly perform the services of a contract carrier by motor vehicle and to conform to the provisions of the Motor Carrier Act of 1939, and the lawful requirements, rules and regulations of this Commission promulgated thereunder.”

Concluding, the APSC granted and issued the authority as recommended by the examiner.

From that order, only Redwing filed an appeal to the Circuit Court of Montgomery County; there the court affirmed the order. Redwing appeals here from the judgment of affirmance.

It is well settled that an order of the APSC is taken as prima facie just and reasonable, Tit. 48, § 82, Code 1940. It may be set aside by the circuit court or by this court only if “ ‘ * * * the commission erred to the prejudice of appellant’s substantial rights in its application of the law; or, the order, decision or award was procured by fraud or was based upon a finding of facts contrary to the substantial weight of the evidence. * * * Van Express, Inc. v. Bee Line Express, Inc., 347 So.2d 1353 (Ala.1977). It is likewise well settled that we review the order of the APSC as if it were on direct appeal to us from the APSC without any presumption of correctness of the judgment of the circuit court. Jefferson Trucking Co. v. Alabama Public Service Commission, 347 So.2d 372 (Ala.1977).

The sole issue presented on this appeal is whether the APSC’s order is supported by competent, substantial evidence of record. We answer yes and accordingly affirm.

We draw this conclusion on the basis that the evidence satisfies the requirements governing issuance of contract carrier permits as those requirements are stated in § 301(11), Tit. 48, Code, 1940. Section 301(11) provides in pertinent part:

* * * Subject to Section 301(12) of this title, a permit shall be issued to any qualified applicant therefor, authorizing in whole or in part the operations covered by the application, if, after public hearing of the application, it appears from the application and the evidence in support thereof or from any hearing held thereon that the applicant is fit, willing and able to properly perform the service of a contract carrier by motor vehicle and to conform to the provisions of this article and the lawful requirements, rules and regulations of the commission thereunder, and that the proposed operation, to the extent authorized by the permit will be consistent with the public interest, otherwise such application shall be denied. * * ” (Emphasis added)

The standards by which the APSC in a case of this kind is governed are: (1) the proposed operation to the extent authorized by the permit will be consistent with the public interest; and (2) the applicant is fit, willing and able to properly perform the service of a contract carrier by motor vehicle and will conform to the provisions of the statute and the lawful requirements, rules and regulations of the APSC thereunder. Alabama Public Service Commission v. Consolidated Transport Co., 286 Ala. 323, 239 So.2d 753 (1970); Osborne Truck Lines, Inc. v. Alabama Public Service Commission, 284 Ala. 166, 223 So.2d 284 (1969); Alabama Public Service Commission v. Nunis, 252 Ala. 30, 39 So.2d 409 (1949).

The ancillary issues pertinent to a disposition of this appeal are:

(1) Was the grant of R. C. Van Lines’ application “consistent with the public interest?”; and

(2) Is R. C. Van Lines, “Fit, willing and able, etc.” to perform the proposed service?

I

“Consistent with the Public Interest”

Alabama Public Service Commission v. Nunis, supra, is traditionally cited for the interpretation of the captioned phrase. There, this court made the following comments:

“Attention is called to the difference in the finding necessary for contract carriers, that is, ‘consistent with the public interest,’ and for common carriers, that there must be a ‘certificate of public convenience and necessity’. Section 301(8), Title 48 [Code 1940], supra.
“A contract carrier can give preferential service, and is not limited to schedules or routes: a common carrier is thus bound. * * * This carrier cannot extend the preferential service nor other advantages of a contract carrier.
“ * * * It is not a question of whether the public needs this service, as when a common carrier seeks a permit, but whether such service would be detrimental to the public interest. It is said to be a form of private transportation. * *
“ * * * We think this proposed service would be consistent with the public interest, unless it would probably depreciate materially the ability of the lone common carrier who may be equipped so to engage in serving the public, and who alone is protesting this application. * * * ”

From that decision a two prong test for determining “consistent with the public interest” has evolved: a permit should be granted when a common carrier cannot extend the preferential service or other advantages of a contract carrier; and the granting of a permit will not tend to materially depreciate the ability of the protesting common carriers to serve the public. Alabama Public Service Commission v. Consolidated Transport Co., supra.

The APSC found, and the evidence supports such a finding, that Chembond has distinct and specialized transportation needs which it is not able to fulfill from existing transportation services. This preferential service is required because it is starting production of a chemical commodity at the River Falls plant called urea resin. Transportation of that chemical requires dedicated equipment which transports nothing else which would discolor or contaminate the white urea resin and thus make it unacceptable to Chembond’s customers. Redwing, as a common carrier, could not dedicate such equipment to the exclusive use of Chembond. Urea resin goes through a screening procedure before it is loaded and the tanker trailer used to haul it must be free of foreign particulate matter. Evidence from Chembond was to the effect that equipment of Redwing had been rejected on occasion because it was not sufficiently clean. Further, the equipment is needed on an hour’s notice and Redwing cannot assure timely supply of it from terminals located in Mobile and Montgomery. Drivers experienced in handling the problems of transporting substances with similar qualities to those of urea resin are needed. These will be provided by R. C. Van Lines while that has not always been the case with Redwing. Also, facilities for cleaning the equipment are important and cleaning facilities are maintained at the Chembond plant while Redwing does not have cleaning facilities at the plant site; its closest facility is at Montgomery, some distance away.

With reference to the second aspect of the test, the APSC found, and again there is supporting evidence in the record, that the grant of R. C. Van Lines’ application will not result in diminishing the protesting carriers service to the public. As noted earlier, Ross Neely and Redwing were the only two remaining protestants to the application. Because Ross Neely had not been participating in this traffic, the examiner was of the opinion, and it logically follows, that Ross Neely will not lose business if the application is granted. However, Redwing argues that because it has handled traffic for Chembond in the past it will stand to lose revenue if the application is granted.-Redwing claims it cannot afford a loss in revenue of sums totalling more than $53,-000 annually and continue to give good service to the shipping and receiving public.

Redwing’s argument ignores the essence of the decision in Osborne Truck Lines, Inc. v. Alabama Public Service Commission, supra, where this court said:

“We will not undertake to establish any factual guidelines for guidance of the Commission controlling the issuance of contract permits, but suffice it to say, that when it appears that there is an existing plurality of common carriers who are willing, ready and able to provide with reasonable efficiency and promptness the service proposed by the applicant for a contract permit, the permit should not be granted, to the end that the financial status and physical assets of the common carriers may be protected against erosion and depletion. Want of such protection is inconsistent with public interest. * * * (Emphasis added)

The words emphasized above set forth the crux of this factor considered in a finding of “consistent with the public interest”: “ * * * to the end that the financial status and physical assets of the common carriers may be protected against erosion and depletion. * * * ” The mere allegation that a common carrier will stand to lose revenue does not establish that its financial status and physical assets are subject to erosion and depletion. The language employed in Osborne contemplates evidence of the totality of the common carrier’s financial condition. This includes gross receipts, net revenue, net profits, etc. For instance, suppose Redwing loses $53,000 in annual revenue as a result of the grant of this application; this fact standing alone sheds no light on the impact of that loss to its overall profitability and financial soundness.

Further, the APSC’s evidential supported finding that Chembond had specialized transportation needs it could not fulfill from existing transportation services authorizes the conclusion that Redwing was not able to provide reasonably efficient and prompt service.

II

“Fit, Willing and Able, etc.” (§ 301(11), Tit. 48, Code 1940)

Finally, Redwing attacks R. C. Van Lines fitness to hold contract carrier authority. Redwing contends that prior unauthorized operations of R. C. Van Lines should preclude a finding that R. C. Van Lines is fit, willing and able, etc. The record shows R. C. Van Lines under its interstate authority had moved commodities manufactured in Covington County, Alabama, to various points in the state. R. C. Van Lines claimed those operations occurred because it was under a belief it was authorized to transport some commodities intrastate by its ICC temporary authority. The record reveals that after being advised the intrastate operations were illegal, R. C. Van Lines leased the equipment to the shippers and sought intrastate authority. Moreover, R. C. Van Lines represented at the APSC hearing its willingness to comply with the Motor Carrier Act, and rules and regulations of the APSC. The action of R. C. Van Lines, after being notified of the illegality of the instrastate operation, authorized the APSC to conclude there was good faith in the representation of R. C. Van Lines that it would adhere to the laws of this state. We find nothing offensive about those prior unauthorized operations which should preclude a finding by the APSC that R. C. Van Lines is “fit, willing and able, etc.” to perform the proposed service.

To the contrary, we find an abundance of evidence in the record to support a finding of R. C. Van Lines’ fitness, willingness and ability to perform the proposed service. R. C. Van Lines’ financial statement shows third quarter 1975 profits of $21,618, and its balance sheet as of 30 September 1975, reflects total assets of $930,109.34. In 1975, R. C. Van Lines had gross revenues of $1,962,000. The evidence shows R. C. Van Lines has already invested $160,000 in equipment to provide service for Chembond. It consists of stainless steel trailers, insulated and specially equipped to handle adhesives; 1975 model trailers built to specifications required by Chembond.

R. C. Van Lines expressed its intention to provide service for Chembond through a terminal at the Chembond plant site. Evidence of R. C. Van Lines was that it had personnel qualified to hire and supervise the proper drivers to operate its equipment to transport Chembond’s substances and the drivers to be used will be specially trained in handling adhesives. Further, that R. C. Van Lines will provide washing, cleaning and maintenance facilities at the Chembond plant site, and will be able to provide equipment promptly upon request.

Having found the APSC’s order is supported by competent substantial evidence of record, the judgment of the circuit court sustaining the order of the APSC is due to be, and is affirmed.

AFFIRMED.

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


author: FAULKNER, Justice.

text:
    E. C. OVERTON et al. v. The SCOTT COMPANY, INC., et al.
    SC 2791.
    Supreme Court of Alabama.
    Feb. 3, 1978.
    Rehearing Denied March 31, 1978.
    Watts E. Davis, James G. Adams, III, Charles H. Wyatt, Jr., Birmingham, for appellants.
    William M. Acker, Jr., Birmingham, for appellee, The Scott Company, Inc.
   FAULKNER, Justice.

This is an appeal from a summary judgment holding that § 48-50 of the General City Code of Birmingham is invalid. We affirm.

Scott is the owner of all lands abutting a public alley located within the city limits of Birmingham. This alley was created by the recording of a map dedicating it to public use. On September 17, 1976, Scott filed an application with the City Engineer to vacate the alley. Subsequently, the Subdivision Planning Committee of the Birmingham Planning Commission recommended vacation of the alley to the City Council.

When Scott filed its application, § 48-50 of the City Code read as follows:

“The assent of the city council to the vacation of any street or public way or portion thereof shall not be given or granted unless and until the applicant for such assent shall have paid to the city an amount equal to the reasonable market value of the land to be freed from public servitude.”

After the property was appraised by the City, Scott’s counsel was advised by the City Engineer that he would take appropriate steps to place the matter before the Council upon receipt of $9,000. Scott declined to pay, and filed suit. Pending the suit, the City Council amended § 48-50 of the City Code:

“Upon any application to the city council for its assent to the vacation of any street, public way or portion thereof, the city council shall be apprised of the fair market value of the land comprising such street, public way or portion thereof proposed to be vacated, and shall before assenting thereto without payment to the City of the fair market value of such land, consider whether it is in the public interest to divest the public of all of its rights and interest in said land without such payment to the City.”

Scott’s application for vacation was presented to the Council without an offer or tender of the fair market value of the land. On February 22, 1977, the Council voted against approving the resolution assenting to the vacation of the alley.

Section 32, Tit. 56, Code of Ala., 1940, is the statutory authority given to a municipality by the Legislature to vacate a street or alley. Even though the statute provides that the City Council must give its assent to vacate a street or alley, there is no specific or implied authority in the statute that permits a city to require payment of the fair market value of the land to be vacated, before giving its assent. The amended ordinance does not correct the invalidity of the original. Assent in the amendment without payment is determined on whether the City considers it is in the public interest to vacate. The amendment seeks to do indirectly that which it cannot do directly. It is as invalid as the original ordinance, because the City does not have any legislative authority to charge or consider whether to charge an abutting owner, a price for giving its assent to vacate a street or alley.

We affirm the trial court in holding the ordinance to be invalid.

AFFIRMED.

TORBERT, C. J., and ALMON, EMBRY and BEATTY, JJ., concur.


text:
    Betty Poole YATES v. CHRISTIAN BENEVOLENT FUNERAL HOMES, INC., a corp.
    SC 2280.
    Supreme Court of Alabama.
    Feb. 24, 1978.

      David L. Barnett, Mobile, for appellant.
    Fred W. Killion, Jr., Mobile, for appellee.
   EMBRY, Justice.

Appeal by Betty Poole Yates from a jury verdict in favor of Christian Benevolent Funeral Homes, Inc. We affirm.

Mrs. Yates filed suit against Christian Benevolent seeking damages for personal injuries sustained from a fall she had while attending a wake on its premises. The complaint alleged Mrs. Yates’ fall was the proximate consequence of Christian Benevolent’s negligent maintenance of its floor. She claimed to have suffered the following injuries as a result of the fall:

“She was contused, bruished and abraised about her body; she suffered injuries to her back and neck, and was caused to suffer female disorders; she suffered and continues to suffer great mental and physical pain; her injuries are permanent; and she has incurred medical expenses in and about the treatment of her injuries, and will incur further expenses in the future.”

Christian Benevolent answered generally and asserted, as an affirmative defense, contributory negligence on the part of Mrs. Yates. Trial followed and jury verdict was rendered in favor of Christian Benevolent.

On appeal, Mrs. Yates asserts two eviden-tiary rulings by the trial court to be reversible error. They are:

1. The overruling of her objection to the introduction into evidence of a court file from a prior proceeding and the reading of her deposition taken in connection with that proceeding; and

2. The overruling of her objection to a hypothetical question posed to her physician on cross-examination.

I

Mrs. Yates contends the trial court erred in allowing the introduction into evidence of an original and amended complaint, from a prior lawsuit where she, a minor suing by her mother and next friend, sought damages on account of personal injuries resulting from an automobile accident. The crux of Mrs. Yates’ contention is that the records did not fall within the category of admissible evidence from a former proceeding and were used to unduly discredit her. We disagree.

A party’s pleading in a prior case is admissible in a subsequent action as an admission of the truth of the facts stated in the pleading if such pleading was filed in behalf of the party in another action, and was drawn under the party’s direction or with his knowledge of its content. Redwing Carriers, Inc. v. Stone, 293 Ala. 726, 310 So.2d 206 (1975); Sosebee v. Alabama Farm Bureau Mutual Casualty Insurance Co., 56 Ala.App. 334, 321 So.2d 676 (1975).

The very style of the complaints show the pleadings filed in the prior lawsuit were filed in behalf of Mrs. Yates, a minor at that time. This evidence was relevant to show Mrs. Yates had filed a prior action claiming damages for injuries similar to those injuries alleged in the instant action, therefore the complaints were admissible in view of the evidence to which we will now allude.

Mrs. Yates further contends the trial court erred in allowing opposing counsel to read from her testimony in a deposition taken in the prior proceedings, which was also a part of the court record. We find this contention equally unpersuasive.

This court has said:

“ * * * ‘Where a party on the trial of an action advances contentions which are inconsistent with his prior conduct in relation to the matter in controversy, such prior conduct may be shown as being in the nature of an admission. * * *'" Elder v. Ralls Sanitarium, 219 Ala. 298, 122 So. 41 (1929).

Mrs. Yates testimony in that deposition was to the effect she suffered neck, back and female problems as a result of the automobile accident. During trial below, Mrs. Yates testified she had not suffered from neck, back and female problems prior to her fall at the funeral home. Hence her prior testimony in the deposition was inconsistent with her testimony at trial; therefore, admissible for impeachment purposes.

Moreover, this court has stated, and it is accepted, answers of a party to interrogatories of discovery in another case are admissible, in the nature of admissions, against that party in a subsequent case. Williams v. Bedenbaugh, 215 Ala. 200, 110 So. 286 (1926); McElroy’s Evidence, § 108.-02, p. 366, 3d Ed (1977). The same is true for answers obtained through another method of discovery utilized in the prior lawsuit: depositions upon oral examination. Rule 30, ARCP.

II

Mrs. Yates says the trial court erred in allowing her physician, whose qualifications as an orthopedic surgeon had been stipulated, to answer the following hypothetical question posed by opposing counsel on cross-examination:

“Q Doctor, let me rephrase my question. If you have sworn testimony, would it make any difference in your opinion as to whether a patient were really having a pain if you assume these facts to be correct, that that patient in sworn testimony says that, as a result of this fall, she has back trouble, neck trouble and female trouble, that that same patient says under sworn testimony, T never had any back trouble before, never had any neck trouble, back trouble or female trouble before the fall’? Do you understand that set of facts?
“A Yes, sir.
“Q Further assuming that that same patient gives sworn testimony in a prior involvement, being back in 1967, that she was in an automobile accident, that she filed a twenty-five-thousand-dollar lawsuit claiming low back pain, head pain, side pain, female trouble. And assume that she testified in sworn testimony in that particular claim that she had been hospitalized for a long period of time because of those difficulties; that they kept her tied in bed for all of the pain that she was having for approximately a week or two weeks because of the low back pain, head pain, and what-have-you.
“Now, I am asking you to assume that, and I am offering to the Court to say that I will offer such testimony; that, assuming that to be the case, please, sir, would that in any way affect your opinion as to the validity of the patient’s complaints?”

After the trial court overruled the objection of Mrs. Yates’ counsel, the doctor answered:

“A Well, sir, I think this would have some weight in my thinking on this matter. I think if someone came down and told me they had sustained a fall, I would expect them to tell me they hurt and I would expect there to be some pain from a fall down a flight of stairs.
“But for the same token, with no findings and no x-ray changes, if the patient continues to complain beyond the point which I thought they should be better, and I had this other information available to me, then I would somewhat question the complaints that they were continuing to voice.”

In brief, Mrs. Yates contends it was reversible error to overrule her objection to the question because the question invaded the province of the jury and asked for a comment on whether the doctor thought her complaints of pain were valid. We disagree.

The admissibility of expert opinion evidence is governed by the rule that such evidence should not be admitted unless it is clear that the jurors themselves are not capable, for want of experience or knowledge of the subject, to draw correct conclusions from the facts proved. Hagler v. Gilliland, 292 Ala. 262, 292 So.2d 647 (1974). The subject of the validity of a patient’s complaints of pain is one upon which jurors, for want of experience or knowledge of the subject, might be unable to draw correct conclusions from the facts proved. Therefore, expert opinion in this area could be helpful.

The frame and substance of hypothetical questions to expert witnesses are matters committed to the discretion of the trial court and the ruling of the trial court will not be disturbed unless there is a showing of abuse of discretion. Barfield v. Wright, 286 Ala. 402, 240 So.2d 593 (1970).

It is well recognized that an expert may give his opinion based upon his own knowledge of the facts, stating those facts, then his opinion, or he may give an opinion based upon a hypothetical question, based upon facts already in evidence. Hagler v. Gilliland, supra; Harper v. Baptist Medical Center-Princeton, 341 So.2d 133 (Ala.1976); or evidence to be subsequently admitted. Birmingham Electric Co. v. Farmer, 251 Ala. 148, 36 So.2d 343 (1948).

We noted earlier, in Part I, that the evidence of record contains: Mrs. Yates’ testimony at trial that she had not suffered from any of the alleged disorders prior to her fall at the funeral home; and her previous testimony by deposition in the prior case when she complained of neck, back and female problems as a result of a prior automobile accident. Accordingly, we find the hypothetical question proper, and the trial court did not abuse its discretion, as the question was based upon facts subsequently admitted into evidence.

Finding no ruling of the trial court that merits reversal, we affirm.

AFFIRMED.

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


author: BLOOD WORTH, Justice.

text:
    J. C. STUDDARD, etc. v. SOUTH CENTRAL BELL TELEPHONE COMPANY, a corporation.
    77-22.
    Supreme Court of Alabama.
    Feb. 24, 1978.

      James F. Hinton, Gadsden, for appellants.
    Anita Leslie Miller, Birmingham, James D. Pruett, Gadsden, for appellee.
   BLOOD WORTH, Justice.

Defendant, J. C. Studdard, appeals from the grant of a motion for summary judgment for plaintiff, South Central Bell Telephone Company. We affirm.

In 1969, J. C. Studdard and wife, Grace Studdard, conveyed by deed a “right-of-way” for a public road to Etowah County. The deed stated the right-of-way “shall be 25 feet in width on each side of the center line of said road, as it is now located and staked out by Etowah County or as much of our lands as is required to make a 50 foot right-of-way across our lands, on Road known locally as Heath Herring (Chris Lyn Dr.) Road. . . .” In 1973, the telephone company was granted permission by the Etowah County Engineer, pursuant to Tit. 23, § 48, Code of Alabama 1940, [§ 23-1-85 Code 1975] to install a buried telephone cable within the right of way of said road. The cable was buried between 16.5 feet and 18 feet from the center line of the road.

In June, 1976, J. C. Studdard’s brother-in-law damaged plaintiff’s underground cable while he was erecting a fence for the Stud-dards on their property. Plaintiff brought suit for negligence. Defendant J. C. Stud-dard answered with a general denial and interposed the defense of contributory negligence. In addition, defendant filed a counterclaim for trespass to real property, which allegedly occurred when plaintiff installed the cable without permission or authority to do so. Plaintiff answered defendant’s counterclaim with a general denial and later moved for summary judgment on defendant’s counterclaim. Defendant also moved for summary judgment on plaintiff’s complaint and on defendant’s counterclaim.

The trial court held, inter alia, that plaintiff was entitled to summary judgment; that defendant’s motion for summary judgment on its counterclaim was due to be denied; that there was no just reason for delay; and, that this was a final judgment. This appeal then followed.

Defendant J. C. Studdard contends the trial court erred in granting a summary judgment for plaintiff on his counterclaim for trespass, because, he claims the underground cable was installed at an improper point, and because the question regarding proper placement of the cable is a “genuine issue of material fact,” which precludes summary judgment. We must disagree.

A restatement of our rules respecting summary judgment is in order. A motion for summary judgment may be granted only when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Isbell v. City of Huntsville, 295 Ala. 380, 330 So.2d 607 (1976).

The movant for summary judgment has the burden of showing the absence of any genuine issue of material fact, and all reasonable doubts touching the genuine issue of material fact must be resolved against the moving party. Donald v. City National Bank of Dothan, 295 Ala. 320, 329 So.2d 92 (1976).

Moreover, if there is a scintilla of evidence supporting the nonmoving party, a summary judgment is inappropriate. Wilbanks v. Hartselle Hospital, Inc., 334 So.2d 870 (Ala.1976).

-Where, as here, however, all the basic facts are undisputed and the matter is one of interpretation or of reaching a conclusion of law by the court, the court may grant a motion for summary judgment. Bible Baptist Church v. Stone, 55 Ala.App. 411, 316 So.2d 340 (1975).

We think it is clear that what is involved in this case is purely a question of law.

Placement of telephone lines in Alabama is governed by Tit. 23, § 48, Code [§ 23-1-85 Code 1975] which provides, as follows:

“§ 48. (1367) (5817) Right to construct telephone and telegraph lines along highway. — The right of way is granted to any person or corporation having the right to construct the telegraph or telephone lines within this state to construct them along the margin of the right of way of public highways, subject to the removal or change by the court of county commissioners, board of revenue, or other like governing body of the county, except in cases where the highway department has jurisdiction over such highway. (1927, p. 348.)” [Emphasis supplied.]

There is no dispute as to the location of the buried telephone cables at the time the damage was done to them. Both sides agree on that location. Therefore, the trial judge was faced exclusively with a question of law, the interpretation of the statutory phrase “along the margin of the right of way of public highways,” contained in Tit. 23, § 48, supra. What he had to determine, in effect, in granting summary judgment for the plaintiff on defendant’s counterclaim for trespass, was that the location of the cables between 16.5 feet and 18 feet from the center line of the road, fell “along the margin of the right of way of public highways,” which right of way extended 25 feet in width from the center line, according to the deed, as a matter of law.

Defendant relies on Gilbert v. Southern Bell Telephone and Telegraph Co., 200 Ala. 3, 75 So. 315 (1917), which was decided according to § 5817, Code of Alabama 1907, the statutory predecessor of Tit. 23, § 48, Code of Alabama 1940, as supporting their contention that the location of the cables was not “along the margin of the right of way of public highways.” In Gilbert, this court, in holding that the giving of a certain jury charge was not improper, discussed the meaning of the phrase “along the margin of public highways” as the statute then read, viz:

“. . . Telegraph and telephone companies, under their statute license to construct their lines along the margin of public highways (Code § 5817) could not, for example, take advantage of the convenient windings of travel due to difficulties in the road, to intrude their poles into that part of a highway set apart and devoted to the use of the public traveling on foot and in vehicles. The right of such companies under the statute is limited to the margin of the road. This means necessarily that their poles may be planted within the borders of the way devoted to public use; but they must not unreasonably or unnecessarily interfere with or endanger the use of the highway by the traveling public. . . ”

200 Ala. at 4, 75 So. at 316.

Defendant argues that the addition of the words, “of the right of way” to the 1907 Code dictates the conclusion that the cables were improperly placed. Defendant contends that the cables may only be placed along the exact outer limit of the right of way.

Plaintiff’s counsel answers this argument as follows:

. When used as it is in this statute, ‘margin’ patently means an area. It is so understood in everyday usage. The rules of this Court require that a margin of 1.5 inches be left around the typescript of this page. ARAP 32. If one of the judges of this Court makes notes in the margin of this brief, he or she will write in the space between the typewriting and the edge. As the word is employed in the statute it can have no comprehensible meaning unless it refers to the space between the traveled part of the roadway and the edge of the right-of-way. It was so understood in Gilbert and the best that counsel for Mr. Studdard can do with that is to claim that adding “of the right-of-way” to the section turns Gilbert inside out.
“To reason that the added words change both Gilbert and ordinary usage so completely is to wind up standing on thin air. The same Legislature that incorporated those words retained the requirement that the lines be constructed ‘along’ the margin and added also the provision that they be subject to removal or ‘change’ by county governing bodies.
“ ‘Along’ recently has been construed by this Court:
“ ‘The word “along” is not exact or specific. * * *
“ ‘If the barrier were on the highway right of way and extended in the direction of the property line, it could be said that the barrier was “along” the property line. If the barrier were on the land owned by the defendant railroad and extended in the direction of the property line, it could be said that the barrier was “along the property line.” Whether on one side or the other, the barrier would be “along” the property line. Holley v. Seaboard Air Line R. Co., 291 Ala. 510, 515, 283 So.2d 168, 173 (1973).’ ”
If ‘margin’ means an exact, fixed point, its use with ‘along’ is a contradiction. Furthermore, if the Legislature granted telephone and telegraph companies a franchise to construct their lines only upon definite, fixed points (joined together to make a line) there was no sense in simultaneously giving county governing bodies the power to require the location of the lines to be changed. If the lines could be in one place only, to what other location could they be changed?”

In order to agree with defendant’s statutory interpretation, we would have to hold that telephone lines and cables may only be constructed along one line. Not only would this prove to be impracticable as plaintiff’s counsel points out, but it would require an excessively strained reading of Tit. 23, § 48, Code, which we are unwilling to give it.

In ascertaining legislative intent, we are entitled to consider conditions which may arise under the provisions of statutes and to examine the results which will flow from giving the language in question a particular meaning over another. Wright v. Turner, 351 So.2d 1 (Ala.1977); League of Women Voters v. Renfro, 292 Ala. 128, 290 So.2d 167 (1974). We agree with plaintiff’s interpretation of the meaning of “along the margin of the right of way.”

For the foregoing reasons, therefore, this case is due to be affirmed.

AFFIRMED.

FAULKNER, ALMON, EMBRY and BEATTY, JJ., concur.


author: TORBERT, Chief Justice.

text:
    In re the ESTATE of Willie Beryl K. POTTS, Deceased. Ex parte Gould H. K. BLAIR and William A. Kitchens.
    77-30.
    Supreme Court of Alabama.
    Feb. 24, 1978.

      William A. Kitchens, pro se.
    Gould H. K. Blair, pro se.
    William P. Powers, Circuit Judge, 6th Judicial Circuit, Talladega, for respondents.
    Michael H. Cleckler of Gaines, Hereford, Cleckler, Robbins & Blair, Talladega, for respondents Shirley Horn Foote and Vicki Lynn Foote.
   TORBERT, Chief Justice.

In this case a petition for writ of mandamus, or alternatively, a motion for a Rule 8(b) order, Alabama Rules of Appellate Procedure, was filed by William A. Kitchens and Gould H. K. Blair. Respondents are Judge William P. Powers of the Talladega Circuit Court, Shirley Horn Foote and Vicki Lynn Foote. We have closely examined all papers filed in this cause and conclude that petitioners have not presented a proper case for mandamus or relief under Rule 8(b), Alabama Rules of Appellate Procedure.

Prior to October 3, 1977 Kitchens served as executor of the estate of his sister, Mrs. Willie Beryl K. Potts. On that date, Judge Powers entered an order which removed Kitchens from that position and appointed Mrs. Shirley Horn Foote as executrix of the Potts estate. Judge Powers also directed Kitchens to transfer all estate records to Mrs. Foote within fourteen days of the date of the order. The new executrix was ordered to then “proceed immediately” to dispose of all estate assets.

The trial court order also stated that Mrs. Foote and her daughter, Vicki Lynn Foote, were the sole beneficiaries of the Potts estate. Judge Powers noted that the trial court had previously denied a Petition for Declaration on Intestacy and a Rule 54(b) motion, Alabama Rules of Civil Procedure, which had been filed by Blair who claimed to be a beneficiary under the Potts will.

Notice of appeal to the Supreme Court from the October 3rd ruling was filed by both Kitchens and Blair. In order to obtain a stay of the judgment pending the appeal to this court, the two men asked Judge Powers to set the amounts of the necessary supersedeas bonds pursuant to Rule 8(a)(3) of the Alabama Rules of Appellate Procedure. Such action was not immediately taken by Judge Powers. No written applications concerning the amount of the bonds were made by either Kitchens or Blair at that time.

On October 14, 1977 Kitchens and Blair filed a petition in this court for writ of prohibition, mandamus, or, alternatively, a motion for a Rule 8(b) order. This court then issued an order setting a hearing on the matter for October 17, 1977, and staying Judge Powers’ order.

Kitchens and Blair jointly filed an amended petition on October 27, 1977, asking for the writ of mandamus to compel Judge Powers to set the supersedeas bond amounts, or, alternatively, for an order from this court approving the bonds under Rule 8(b).

It is well-settled in this state that appellate courts may issue writs of mandamus to lower courts to enforce the performance by them of particular ministerial duties. Alcoholic Beverage Control Bd. v. Taylor, 339 So.2d 66 (Ala.1976); Tanner v. Dobbins, 251 Ala. 392, 37 So.2d 520 (1948); Ex parte Wright, 225 Ala. 220, 142 So. 672 (1932). Petitioners contend that the writ should lie in the present case because, according to their analysis of the situation, Judge Powers has refused to prescribe the amounts of the supersedeas bonds in spite of his duty to do so under Rule 8(a) of the Alabama Rules of Appellate Procedure. We do not agree.

It is clear to this court that the relief sought by Blair arid Kitchens through mandamus has already been granted. We have before us two orders signed by Judge Powers which concern the bond amounts. Immediately following the hearing before this court on October 17, 1977, Judge Powers entered an order setting the amount of Blair’s supersedeas bond at $10,000.00. The second order, entered on October 28, 1977, set Kitchens’ bond at $35,000.00. The cause is thus moot and the petition for writ of mandamus must be denied. See State ex rel. Gallion v. Emmet, 285 Ala. 511, 234 So.2d 47 (1970); Carpenter v. State, 276 Ala. 695, 166 So.2d 423 (1964); Gamble v. State, 276 Ala. 72, 159 So.2d 70 (1963).

As previously stated, petitioners alternatively seek this court’s approval of the supersedeas bond amounts by motion under Rule 8(b), Alabama Rules of Appellate Procedure.

The last sentence of subdivision (a) of Rule 8 is as follows:

“In the event the clerk declines to approve the bond, or his approval is contested, the requirements of (b) below shall apply.”

We note in the present case that bonds in the amount set by Judge Powers have not been executed and tendered by Blair and Kitchens to the clerk of the trial court for the clerk’s approval — an obvious condition precedent to the application of provisions of Rule 8(b) according to the abovequoted sentence. Therefore, under the plain wording of the rule itself, petitioners’ motion for relief under Rule 8(b) is premature and must be denied.

Accordingly, the petition for writ of mandamus is denied. The motion for relief under Rule 8(b), Alabama Rules of Appellate Procedure, is denied.

WRIT DENIED.

MOTION DENIED.

BLOODWORTH, FAULKNER, EMBRY and BEATTY, JJ., concur.


author: BLOODWORTH, Justice.

text:
    ASSURED INVESTORS LIFE INSURANCE COMPANY, an Alabama Corporation v. Charles H. PAYNE, as Commissioner of Insurance of the State of Alabama.
    77-282.
    Supreme Court of Alabama.
    Feb. 24, 1978.

      B. G. Minisman, Jr., Birmingham, for appellant.
    William J. Baxley, Atty. Gen., George L. Beck, Deputy Atty. Gen. and Joseph M. Carlton, Asst. Atty. Gen., for appellee.
   BLOODWORTH, Justice.

Plaintiff, Assured Investors Life Insurance Company, appeals from a judgment for defendant, Charles H. Payne, as Commissioner of Insurance of the State of Alabama. We reverse and remand.

Plaintiff, an Alabama corporation qualified to engage in the insurance business, was notified by defendant Insurance Commissioner that plaintiffs capital was impaired and was given sixty days within which to cure the reported impairment. Plaintiff then determined to remedy the impairment by amending its certificate of incorporation and reducing its capital from $500,000.00 (500,000 shares of common stock issued and outstanding with a par value of $1.00 per share) to $100,000.00 with a corresponding reduction in the par value of its common stock to $.20 per share.

Insurance Departmental Regulation No. 34 (see Appendix “A”), however, provides, in pertinent part, that no insurer can reduce the par value of its stock below $1.00 per share without the Commissioner’s approval. Although plaintiff took the position that the regulation is void, plaintiff nevertheless requested defendant to permit it to reduce the par value of its stock. Defendant denied this request on January 11, 1978.

Plaintiff then filed suit against defendant on January 17, 1978, seeking a preliminary and permanent injunction against defendant’s enforcement of Regulation No. 34. Pursuant to plaintiff’s motion, an expedited hearing was held on January 18,1978. On January 27, 1978, the court entered its final decree upholding the validity of the regulation. The appeal was submitted in this Court, on briefs, February 9, 1978.

Plaintiff contends that the regulation is void insofar as it is in conflict with § 10-2-31, Code 1975, and § 27-27-41(b), Code 1975, and thus violates § 27-2-17(a), Code 1975. We agree and, therefore, reverse and remand.

Plaintiff, as an Alabama insurance corporation, is governed by the Alabama statutes relating to domestic private corporations, unless those statutes “conflict with the express provisions of this title [on insurance] and the reasonable implication of such provisions.” § 27-27-61, Code 1975.

Under the express provisions of § 10-2-31, Code 1975, plaintiff possesses the power and the right to increase or decrease its authorized capital stock by changing the par value of its shares.

Likewise, § 27-27-41(b), Code 1975, specifically grants a stock insurer, like plaintiff, the right to cure a capital impairment “by reduction of the insurer’s capital to an amount not below the minimum required for the kinds of insurance thereafter to be transacted . . . § 27-27-41(b), Code 1975.

Defendant contends, however, that Regulation No. 34, which, as noted above, proscribes reduction of the par value of the stock below $1.00 per share, unless he approves such reduction, is not only binding upon plaintiff but is also a valid exercise of his power. We cannot agree.

It is, of course, true, as defendant argues, that he may make reasonable rules and regulations for the effectuation of the insurance laws. Where, as here, however, such a regulation conflicts with this state’s laws, the regulation is void. § 27-2-17, Code 1975. See also State v. Advertiser Company, 337 So.2d 942 (Ala.Civ.App.1976), cert. quashed 337 So.2d 947 (Ala.1976). McCrory v. Wood, 277 Ala. 426, 171 So.2d 241 (1965); Alabama State Board of Optometry v. Busch Jewelry Company, 261 Ala. 479, 75 So.2d 121 (1954).

We think the conflict here is apparent. The Alabama Business Corporation Act expressly permits reduction of capital. Likewise, this same right is granted to stock insurers in § 27-27-41(b), Code 1975, so long as the reduction of capital does not fall below the minimum required by law. Clearly, Department Regulation No. 34 conflicts with these statutes by virtue of its prohibition on reducing the par value of stock below a certain amount. Nor is the conflict cured by virtue of that portion of the regulation which allows such reduction if the Commissioner approves of it, because the right granted in the above noted statutes is not conditioned upon the Commissioner’s approval.

Defendant argues, however, that the reduction sought by plaintiff would place it below the minimum amount required, which defendant argues is $200,000.00.

At the time plaintiff became an “old line legal reserve life insurance company,” on December 31, 1964, Tit. 28, § 1, Code 1940, required that it .. . have an actual capital fully paid up in cash, of not less than one hundred thousand dollars . . ” Tit. 28, § 1, Code, was amended in 1965 during the Second Special Session of the Legislature by Act No. 143, to require that “[a]ll insurance corporations shall possess and thereafter maintain unimpaired paid-in capital . . in an amount not less than two hundred thousand dollars.” However, a “grandfather clause” was added to Act No. 143, which allowed insurance corporations holding valid certificates of authority prior to the effective date of Act No. 143 (October 2, 1965) to continue to be licensed by maintaining not less than the same amount of paid-in capital as had previously been required by law. In other words, the $100,000.00 minimum capital requirement of Tit. 28, § 1, was preserved for plaintiff, provided it possessed a valid certificate of authority before October 2, 1965.

Subsequently, Act No. 407, § 813, Acts of Alabama 1971, repealed Tit. 28, § 1, as well as its amendments. Again, however, a “savings clause” was inserted in § 810 of Act No. 407 which provided that “This Act shall not impair or affect any . '. right accruing, accrued or acquired . prior to the time this Act takes effect, but the same may be enjoyed, asserted, . as fully and to the same extent as if this Act had not been passed.” In other words, the $100,000.00 minimum capital requirement was again preserved in Act No. 407 for those insurance companies which were holding valid certificates of authority prior to the effective date of Act No. 143, October 2, 1965.

Defendant contends that plaintiff cannot be “grandfathered” in because the effective date of Act No. 143 was October 2, 1965, but plaintiff’s certificate of authority was not issued until December 28, 1965.

In answer to this assertion, there is nothing in the record indicating when the certificate of authority was issued. Thus, we do not reach this issue. The trial judge will have to resolve that issue on remandment. Moreover, the only issue presented to the trial judge was the validity of the regulation vel non. That is the issue on this appeal. We simply hold it is invalid, being in contravention of the statutes.

Nor, do we reach the issue as to whether the Commissioner is authorized to suspend or revoke the plaintiff’s certificate of authority if he finds that the plaintiff is in “unsound condition,” under § 27-3-21(b), Code 1975.

For the foregoing reasons, therefore, this case is due to be reversed and remanded.

REVERSED AND REMANDED.

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

APPENDIX A

DEPARTMENTAL REGULATION NO. 34

NOVEMBER 3, 1959

SUBJECT: CAPITALIZATION OF DOMESTIC INSURANCE COMPANIES

Pursuant to the authority vested in me, as Superintendent of Insurance of the State of Alabama, by Title 28, Section 47(9), 47(13), Code of Alabama 1940, as amended, the following is adopted:

I. Departmental Regulation No. 34 dated March 13, 1959 together with Amendment No. 1 dated April 15,1959 is rescinded effective this date.

II. The following Departmental Regulation No. 34 is substituted therefor:

1. Subsequent to November 3, 1959, no domestic insurance company shall either initially by its original certificate of incorporation or subsequently by amendment thereto reduce the par value of any class of its shares below One Dollar ($1.00), unless justification therefor, in writing together with documentation, is submitted to the Superintendent of Insurance and his approval in writing to such reduction in par value of any class of such shares below One Dollar ($1.00) is granted.

2. No further reduction in the par value of any class of a domestic insurance company shall be permitted if the par value on the effective date of the original Departmental Regulation No. 34, or any date subsequent thereto was less than One Dollar ($1.00).

DONE at Montgomery, Alabama, on this the 3rd day of November, 1959.

EDMON L. RINEHART, SUPERINTENDENT OF INSURANCE


text:
    Rufus Eldred SHARP, as the father of Rufus David Sharp, a Deceased minor v. ARGO-COLLIER TRUCK LINES CORPORATION and Donald Evans.
    SC 2326.
    Supreme Court of Alabama.
    March 3, 1978.

      W. A. Barnett, Robert W. Walker, Florence, for appellant,
    Robert E. Jones, III, of Poellnitz, Cox, Robison, McBurney & Jones, Florence, for appellees.
   TORBERT, Chief Justice.

This is an appeal by plaintiff, Rufus El-dred Sharp, from a judgment for defendants, Argo-Collier Truck Lines Corporation and Donald Evans, in an action for the wrongful death of plaintiff’s minor son, Rufus David Sharp, in an automobile accident. We affirm.

The accident which is the basis of this suit occurred on April 8, 1975, at approximately 11:30 p. m. on Alabama Highway 20, a paved, two-lane highway, between Florence, Alabama, and Savannah, Tennessee. Plaintiff’s son was killed when the automobile which he was driving collided with a tractor-trailer truck owned by Argo-Collier Truck Lines. Evans, an employee of Argo-Collier Truck Lines, was the driver of the truck. The wreck occurred in Lauderdale County, Alabama, near the Alabama-Tennessee state line. The deceased and another young man, who was also killed in the accident, were proceeding in a direction toward Florence, Alabama. Evans was traveling in the opposite lane toward Tennessee at the time of the collision.

It was the position of plaintiff at trial that the collision occurred due to Evans’ negligence in driving on the wrong side of the highway. Defendants pleaded the general issue and contributory negligence. They argued that the Sharp vehicle rounded a curve in the highway, went out of control, and struck the left front of the tractor-trailer truck on its side of the highway. The case went to the jury which returned a verdict for the defendants. This appeal followed.

Plaintiff first contends that the trial court erred in allowing State Trooper Elree Strickland, the investigating officer to testify as an expert for the defendants and to state his opinion as to the location of the point of impact of the collision. We cannot agree.

It is well established in this state that the question of whether or not a particular witness will be allowed to testify as an expert is largely discretionary with the trial court, whose discretion will not be disturbed on appeal except for palpable abuse. Hagler v. Gilliland, 292 Ala. 262, 292 So.2d 647 (1974).

At the time of trial, Mr. Strickland had been a State Trooper for five and a half years. He attended Recruit School where he received training in accident investigation. Mr. Strickland further testified that he had investigated three to four hundred accidents in south Alabama before assuming his present position in Florence, Alabama, and that he had investigated some one hundred other accidents in the Florence area. We find, therefore, that the trial court did not abuse its discretion in permitting Mr. Strickland to testify as an expert in this case.

This discretion of the trial court is limited, however, to weighing the qualifications of Strickland to testify as an expert witness, Hagler v. Gilliland, supra, while the admissibility of the substance of his opinion testimony is governed by the rule that opinion testimony as to the location of the point of impact of a collision is proper where the witness first details the facts upon which his conclusion is based. Griffin v. Gregory, 355 So.2d 691 (Ala.1978); Robinson v. Morrison, 272 Ala. 552, 133 So.2d 230 (1961); Madison v. State, 40 Ala.App. 62, 109 So.2d 749 (1958).

A review of the record shows that Strickland arrived at the scene of the accident approximately thirty minutes after the collision occurred. He testified as to his observations of the location of tracks and gouge marks in the pavement of the highway, the condition of both vehicles, and the location of diesel fuel and under-carriage debris on the highway. On the basis of these observations, Strickland identified the point of impact as being on the tractor-trailer truck’s side of the highway. Because Strickland stated in detail all facts upon which his conclusions were drawn, we find no reversible error in the trial court’s admitting the foregoing opinion evidence.

Plaintiff secondly asserts that the trial court committed error in overruling plaintiff’s objection to the following question asked by defense counsel of Strickland:

“Q. Mr. Barnett asked you if there were any marks in the roadway, or something about the roadway, by the car — were there any marks in the road that you think were left by the car?”

However, the record shows that plaintiff’s objection was made too late because it was interposed after the witness had given a responsive answer to the question. Wilkinson v. Duncan, 294 Ala. 509, 319 So.2d 253 (1975).

Plaintiff also charges error on the part of the court below in not excluding, upon plaintiff’s motion, the answer to the above-quoted question:

“A. Those grooves all except the ones left by the hub of the truck were left by the car.”

But, having failed to make timely objection, as previously pointed out, plaintiff has waived this alleged error. Madison Highlands Development Company v. Hall, 283 Ala. 333, 216 So.2d 724 (1968).

Plaintiff next contends that the trial court erroneously allowed David Lee Weldon, an equipment maintenance director for Argo-Collier Truck Lines and a diesel mechanic, to testify as to certain cuts on the left front tire of the tractor-trailer truck because Weldon was not qualified as an expert in accident reconstruction. Again, we cannot agree with plaintiff.

Whether Weldon was allowed to testify as an expert witness is, as previously noted, largely a matter of discretion with the trial court. Hagler v. Gilliland, supra. However, we need not reach this issue because a review of the record shows that Weldon, pursuant to specific directions from the trial court, testified only to the physical condition of the tire and bumper of the tractor-trailer truck as he observed these items during his examination of the vehicle after the collision. Thus, Weldon testified to facts which were within his personal knowledge and it is axiomatic that such testimony is admissible. See McPherson v. Martin, 234 Ala. 244, 174 So. 791 (1937).

The final error urged by plaintiff concerns the trial court’s failure to state the amount of damages claimed by plaintiff in its oral charge to the jury. He argues that failure to charge as to the maximum amount sought by plaintiff confused and mislead the jury because the charge as given “may very well have been interpreted by one or more members of the jury as an indication by the Court that no damages at all should be awarded.” We find no merit in this argument.

Plaintiff, as appellant, has the burden of affirmatively showing to this court that the error complained of was prejudicial to his case. Gordon v. State, 273 Ala. 213, 137 So.2d 752 (1962). While we do not concede that the trial court in fact committed error by its charge, we find that clearly no prejudice resulted to the plaintiff’s case from the charge as given because the jury found no liability on the part of defendants. We also note that the trial court stated that plaintiff’s counsel twice advised the jury of the amount of damages sought during argument.

Having reviewed all claims of error by plaintiff and having found no merit therein, we hereby affirm the judgment of the trial court.

AFFIRMED.

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


author: BEATTY, Justice.

text:
    Robert E. WHITEHEAD v. BI-PETRO MARKETING, INC., a corporation.
    SC 2549.
    Supreme Court of Alabama.
    March 3, 1978.

      Robert E. Whitehead, pro se.
   BEATTY, Justice.

This is an appeal prosecuted pro se by Robert Whitehead (defendant) from a default judgment in the amount of $13,226.54 in favor of Bi-Petro Marketing, Inc. (plaintiff).

On December 17, 1975 Bi-Petro Marketing, Inc. (Bi-Petro) delivered 43,111 gallons of number two diesel fuel to Republic Oil & Gas Corporation (Republic) pursuant to their agreement. After delivery Republic failed to make the required payment for the fuel. Thereafter Robert Whitehead, President of Republic, sent Bi-Petro a letter dated February 4, 1976 acknowledging Republic’s obligation to pay for the fuel. By that letter, Republic agreed either to return to Bi-Petro 43,111 gallons of number two diesel fuel or to make four weekly payments for the fuel in the total amount of $12,717.82. However, Bi-Petro received neither diesel fuel nor payment from Republic.

Bi-Petro then brought this action on May 10, 1976 against Republic, Robert Whitehead and Hannon Fayard, a salesman for Republic, for the account balance due plus interest, and for fraud. On June 11, 1976 Whitehead answered the complaint essentially by denying its allegations. Later, after Bi-Petro filed an affidavit for entry of a default judgment alleging that Republic failed to timely answer the complaint, default judgment was entered in the amount of $13,226.54 on August 2, 1976 against Republic.

In February, 1977 Whitehead, apparently then a prisoner in a federal penitentiary, moved for a writ of habeas corpus ad testi- ficandum so that he could defend himself pro se at trial but this motion was denied by the trial court. Also his attorney had apparently withdrawn from the action prior to this time. At trial, bn March 23, 1977, after noting that Whitehead failed to appear, the trial court heard evidence ore tenus and then entered a default judgment against Whitehead for $13,226.54. His motion for a rehearing was denied on April 22, 1977. The trial court, however, did grant his motion for permission to appeal the default judgment in forma pauperis pro se. Whitehead then filed notice of appeal to this Court. After the appeal was filed, Bi-Petro filed a motion in this Court to dismiss the appeal alleging Whitehead’s failure to file an affidavit in forma pauper-is pursuant to Rule 24, ARAP. Whitehead, however, did file an in forma pauperis affidavit later in this Court.

Among the issues raised by the parties are these questions:

1. Whether the appeal should be dismissed as not conforming to Rule 24, ARAP.

2. Whether the trial court erred in denying appellant’s motion for writ of habeas corpus ad testificandum when he was an incarcerated prisoner.

3. Whether the trial court erred in denying Whitehead a trial by jury.

4. Whether the trial court erred in granting default judgment when Whitehead was the president of an indebted corporation.

The appellee insists initially that Whitehead’s appeal to this Court should be dismissed because he did not file an affidavit showing his inability to pay fees and costs as required by Rule 24, ARAP. The pertinent portion of Rule 24, ARAP is:

(a) A party to an action in a court who desires to proceed on appeal in forma pauperis shall file in the trial court a motion for leave so to proceed, together with an affidavit showing, in the detail prescribed by Form 15 of the Appendix of Forms, his inability to pay fees and costs or to give security therefor, his belief that he is entitled to redress, and a statement of the issues which he intends to present on appeal. If the motion is granted, the party may proceed without further application to the appellate court and without prepayment of fees or costs in either court or the giving of security therefor. .

The appellee’s argument, however, disregards the effect of the trial court’s order granting Whitehead’s motion to appeal the default judgment in forma pauperis pro se. Indeed, the above-quoted portion of Rule 24 contemplates that a motion to appeal in forma pauperis and an affidavit shall be filed before the trial court rules on the appropriateness of the person to proceed in forma pauperis on appeal. Because the trial court granted that motion, he impliedly considered Whitehead’s financial circumstances, which the affidavit seeks to ascertain, before he granted the motion to appeal in forma pauperis. Thus the motion to dismiss is not well taken.

The appellant argues, on the other hand, that the trial court erred in not allowing him to testify in person at the trial. That position erroneously assumes that Whitehead was entitled in this civil case to have himself brought from the penitentiary to testify in his own behalf. But the common law writ of habeas corpus ad testifi-candum was superseded by Tit. 45, § 60, Alabama Code (Recomp. 1958) which in turn was superseded by Rules 26 and 43 of the Alabama Rules of Civil Procedure. See Ex parte Brown, 206 Ala. 528, 91 So. 306 (1921) and Appendix II, Statutes and Rules Superseded, ARCP. Appellant’s proper remedy was to take his own testimony upon oral examination under Rule 30, ARCP, upon written questions under Rule 31, ARCP, or upon written questions under Rule 33, ARCP. See also Rule 32(a)(3)(C), ARCP.

The appellant also argues that the trial court erred because it denied him a trial by jury. The record discloses that neither the appellant, nor his attorney prior to withdrawal, made a demand for a trial by jury and neither was present at trial when default judgment was entered. Rule 38(d), ARCP provides:

The failure of a party to serve a demand as required by this rule and to file it as required by Rule 5(d) constitutes a waiver by him of trial by jury. . The failure to appear, in ■ person or by counsel, at the trial is a waiver of trial by jury. . . .

Therefore, appellant’s failure to demand a jury trial and his failure to have counsel represent him at trial constituted waiver of a jury trial.

The appellant insists that because he was incarcerated and he was relying on his counsel to demand a jury trial in his behalf, his error should be considered “excusable neglect” under Rule 60(b), ARCP. The pertinent portion of Rule 60(b) provides:

On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; .

Although the appellant, after entry of judgment, moved in the trial court for rehearing on the ground that he was prevented from testifying due to force majeure, he failed to allege “excusable neglect” by either conclusion or facts that would establish “excusable neglect” which would entitle him to relief under Rule 60(b). It is obvious that appellant is using the same reasoning for excusing absence of counsel at trial as he did for his own absence. For aught that appears the absence of counsel represents a conscious disregard by appellant to provide for his own representation. This is so because appellant filed his motion for writ of habeas corpus ad testificandum on February 7,1977 and it is a fair conclusion he had knowledge at least by that date that his attorney had withdrawn from the action. The trial did not take place until March 23, 1977. Thus, from the record it appears that the appellant had sufficient time to make demand for a jury trial and employ new counsel.

As we have pointed out previously and as Justice Embry stated in Whitehead v. Baranco Color Labs, Inc., 353 So.2d 793 (Ala.1977), the appellant, as an incarcerated prisoner, had no right to have himself brought to court to testify in his own behalf in this civil action, hence we perceive no error by the trial court denying appellant’s motion for rehearing. And since appellant cannot now raise “excusable neglect” for the first time on appeal, his argument made in this Court must fail.

The appellant argues further that in his individual capacity as President of Republic Oil & Gas Corporation, he was not liable for Republic’s indebtedness to Bi-Pe-tro. Although this argument may be plausible it overlooks the effect of the default judgment, the entry of which precludes argument on that question.

There being no reversible error, the judgment of the trial court must be, and is, affirmed.

AFFIRMED.

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


text:
    Arthur WOODS et al. v. Bruce M. WESTBROOK.
    SC 2665.
    Supreme Court of Alabama.
    March 3, 1978.

      J. L. Chestnut, Jr., Chestnut, Sanders & Sanders, Selma, for appellants.
    Thomas H. Boggs, Jr., Lloyd, Dinning & Boggs, Demopolis, for appellee.
   BEATTY, Justice.

The defendants appeal from a judgment for the plaintiff in an ejectment' action. We affirm.

This was the second of two trials over a .portion of a lot of land located in Fauns-dale. After a jury verdict in favor of the defendant in the first trial, a motion for a new trial was granted, and that second trial resulted in a verdict for the plaintiff.

The appellants’ statement of the issues, and their argument as well, present only one question: Whether the weight of the evidence supports the jury’s verdict for the plaintiff. In response to this issue the plaintiff, in brief and by motion, has pointed out the defendants’ failure to file a motion for a new trial making the weight of the evidence a ground thereof. In the absence of such a motion, the defendants maintain, this Court will not pass on' the weight of the evidence.

Our decisions are in accord with that principle. The reason for this position, expressed by Coleman, J. in Porter v. Alabama Farm Bureau Mutual Cas. Ins. Co., 279 Ala. 499, 187 So.2d 254 (1966), distinguishes the role of a reviewing court vis-a-vis the motion with that of the trial court:

It is apparent, however, that such a motion for new trial is necessary in order to obtain, for the first time, a ruling, by the trial court, on the weight of the evidence. It seems that the purpose of the motion is not to afford the trial court a second opportunity to rule on the same question, but to obtain a ruling by the trial court on the weight of the evidence. The jury has already judged the weight of the evidence, but the trial court has not ruled on the weight of the evidence. In the absence of a ruling by the trial court, there is no ruling of which the appellant may complain. The motion for a new trial is necessary to obtain such a ruling.

There having been no such ruling, the scintilla of evidence rule applies to the case, and thus the only issue before us is whether there was evidence raising a reasonable inference in support of the plaintiff’s position (appellee here) warranting submission of the facts to the jury. Street v. Street, 246 Ala. 683, 22 So.2d 35 (1945); Orman v. Scharnagel, 210 Ala. 381, 98 So. 123 (1923).

The dispute involved the legal title to Lot 13 of Selden Subdivision. The defendants claimed title to all of the lot, while the plaintiff claimed title to a southerly portion. The plaintiff introduced a map of the Selden Subdivision showing the name of one Willie Cunningham on Lot 13. ' The plaintiff proved a chain of title beginning with a probate court order (which included the map) of October 11, 1909 deeding the south portion of Lot 13 to Cunningham. This deed was followed by a deed dated March 8, 1913 from Cunningham to Mary M. Wilkins conveying a portion of Lot 13:

Beginning at the SW corner of the De-mopolis Road and Cunningham Avenue, thence Westwardly along the North line of the Demopolis Road, 90 feet to the East line of Mrs. Bessie S. Peacock’s property, thence Northwardly along the East line of Mrs. Peacock’s property to the South line of Grant Estrage’s property, thence Eastwardly along the South line of Grant Estrage’s property 90 feet, to the West line of Cunningham Avenue, thence Southwardly along the West line of Cunningham Avenue to the point of beginning. . . . (emphasis added)

This description, compared with the subdivision map, obviously describes land in the southern portion of Lot 13. The final deed in this chain was dated September 2, 1960, named Bruce M. Westbrook as grantee, and described the property as:

That certain lot in Faunsdale, Alabama, Marengo County. Bounded on South by U. S. 80 on the East by an alley on West by Mr. Will Aikens and on the North by Lou and Arthur Woods.

An expert witness testified that Lot 13 was a one-acre lot comprising 43,560 feet. Another plaintiff’s witness, Ben Wilkins, an elderly man, testified that his sister had owned the portion at one time, and that it was in the possession of the Wilkins (two of plaintiff’s predecessors) and Westbrooks “as long as he could remember.” He added that a fence divided it from the defendants’ property which lay north of that in question. This fence was two-thirds of the way up the lot, was erected by his father, and was there as long as he could remember. It was not taken down until two years before. This witness also testified that he paid the taxes for his mother and sister, the previous owners, for fifty years until 1960, when the plaintiff began assessing it.

Sam Westbrook, plaintiff’s father, testified to the existence of a fence dividing the Wilkins’ portion of the lot from that the Woods lived on. The fence had been there for as long as he could remember (he was born in Faunsdale in 1912 and raised there) until it was taken down in 1974. At one time, he testified, the defendants requested him to ask his son to sell the property in question to them.

Another witness, Frank McCrary, testified that since 1923 he had lived to the east of where the Woods live and that a fence divided Lot 13 about two-thirds of the way up, with the Woods living north of the fence. With permission of the Wilkins and the Westbrooks, he had pastured his cows on the south portion of Lot 13 without any knowledge of the defendants disputing the ownership of that portion.

This evidence was disputed by that of the defendants who also established a chain of title, but that chain disclosed some flaws, notably at its beginning. It disclosed that on March 11, 1911, Willie Cunningham, plaintiff’s predecessor, had conveyed by deed a portion of Lot 13 to Grant Estrich, and on November 28, 1913, Willie Cunningham had conveyed by another deed a portion of Lot 13 to the same Grant Estrich. The descriptions contained in these conveyances were plotted in open court by the expert witness, Camp. He explained that the descriptions began at a point measured from the northeast corner of Lot 13 and conveyed a lot 228 feet north and south, and 90 feet east and west. This evidence was significant because with plaintiff’s other evidence it supported the conclusion that the defendants’ predecessor had obtained title to the north portion of Lot 13 while plaintiff’s predecessor had obtained title to the south portion.

Other conveyances introduced by the defendants included:

(a) A mortgage dated December 15, 1933 from Estrich to J. W. McDonald conveying all of Lot 13;
(b) A foreclosure deed dated December 29, 1939 to J. W. McDonald as grantee of all of Lot 13;
(c) A deed dated January 6, 1944 from J W. McDonald to Arthur and Lou Woods conveying (all of) Lot 13;
(d) A mortgage dated January 6, 1944 to J. W. McDonald from Arthur and Lou Woods on (all of) Lot 13;
(e) A mortgage dated December 3, 1951 to John W. Drinkard from Arthur and Lula Woods on (all of) Lot 13;
(f) A foreclosure deed dated July 2, 1953 to John W. Drinkard as grantee of (all of) Lot 13;
(g) A warranty deed dated September 11, 1962 from John W. Drinkard to Arthur Woods and Lula Woods as grantees of (all of) Lot 13.

This evidence was supported by Arthur Woods who testified that he had used all of Lot 13 as his own from 1944 to the present and had been paying taxes on all of Lot 13 since 1944.

As we have stated, the evidence of title, by record and by adverse possession, was disputed. We have recited its salient features not only to manifest this dispute but also to exhibit the evidence of the plaintiff-appellee which justified the trial court in submitting the case to the jury. Their verdict for the plaintiff having been supported by the existence of at least a reasonable inference of title in the plaintiff, it cannot be disturbed on appeal.

The judgment must be, and is, affirmed.

AFFIRMED.

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


author: JONES, Justice.

text:
    Larry James KNIGHT v. Staicy O’Neil DAVIS, etc.
    SC 2784.
    Supreme Court of Alabama.
    March 3, 1978.

      Michael A. Figures, of Crawford, Blacksher, Figures & Brown, Mobile, for appellant.
    Charles R. Butler, Jr., of Butler & Sullivan, Mobile, for appellee.
   JONES, Justice.

This case seeks review of a default judgment entered against Appellant, Larry James Knight, for failure to appear at trial. We reverse and remand.

On December 3,1975, Knight, while driving his automobile, struck and injured the minor Plaintiff-Appellee, Staiey O’Neil Davis. Suit was filed on April 6, 1976; served in August; and an Answer was filed on September 13.

Trial was originally set for January 26, 1977, but was reset for April 4. (The propriety of this resetting is not before the Court.) On April 1, allegedly without Knight’s knowledge, the trial Court granted Knight’s attorney’s petition to withdraw as counsel in this cause. At the new date set for trial, it was again reset; this time for April 7. No notification of this continuance was given Appellant and, when he failed to appear on this subsequent date, a default judgment was entered against him. On that same date, the issue of damages was tried before the Court and a $250,000 judgment was entered. It is in this posture, then, that this case comes before us.

It is undisputed that the trial was set for April 4,1977. Whether a default judgment properly could have been entered at that time is not the issue here presented because the trial Court, instead, chose to continue the case for a three-day period. It is the propriety of the procedure utilized in this second resetting which we must now determine.

Knight contends that by resetting the case for April 7 (a mere three-day continuance) the trial Court violated Rule 40(a), ARCP. Rule 40(a) provides, inter alia:

The trial of actions shall be set by entry on a trial docket at least 20 days before the date set for trial unless a shorter period of time is agreed to by all of'the parties or available under the provisions of Rule 55, Default.

Knight’s assertion that the failure to comply with the above-quoted rule mandates reversal of this cause is fallacious because this provision applies only to initial settings or to resettings to future trial dockets. To include within the ambit of this provision a continuance such as was here utilized would alter and disrupt current practice with no attendant benefit. Moreover, we have long held that the trial Court has inherent authority to exercise discretion in the control of its calendar and in the calling of cases. Knowles v. Blue, 209 Ala. 27, 95 So. 481 (1923); Fisher v. Smith, 11 A.D.2d 918, 205 N.Y.S.2d 277 (1960); and Rules 15 and 29, Alabama Rules of Judicial Administration. Thus, unless the action is continued until a future setting of the trial docket, the Court, under normal circumstances and absent abuse, could continue the case until a future date without the necessity of complying with the twenty-day provision. See Knowles, supra, and Sachs v. Hensley, 220 Ky. 226, 294 S.W. 1073 (1927).

The determination that Rule 40 is inapplicable does not satisfy the inquiry before us, however, because this case does not arise from “normal circumstances.” Instead, Knight’s attorney withdrew from the action, with the Court’s approval, immediately prior to trial but unbeknown to Knight. Therefore, the question presently before us concerns the propriety of entering a default judgment where a party has no actual notification of the resetting of a case when his counsel withdraws, with the Court’s approval, immediately prior to the date set for trial.

Initially, it must be noted that we have long recognized that the trial Court has discretion whether to grant a default judgment. Ex parte Central Alabama Dry Goods Co., 238 Ala. 20, 189 So. 56 (1939); and Rule 55(b)(2), ARCP. Where there is doubt, however, this discretion should be resolved in favor of the defaulting party; and this for the reason that judgments by default are not favored. Welch v. G. F. C. Credit Corp., 336 So.2d 1346 (Ala.Civ.App.1976). Even though disfavored, a default judgment will not be reversed because the trial Court reset a case for trial at a date later than that originally fixed upon the docket, in the absence of an abuse of discretion, so long as the resetting is within the same setting of the docket. Anderson v. Malone, 154 Okl. 4, 6 P.2d 795 (1932). For the reasons set out below, however, to grant a default judgment under the narrow circumstances before us, without first notifying a party of the resetting of the case, constitutes an abuse of discretion.

The prevailing rule is that litigants must keep track of their case and know its status. Thompson v. Odom, 279 Ala. 211, 184 So.2d 120 (1966); Cleveland v. Cleveland, 262 Ala. 90, 77 So.2d 343 (1955); Averett v. Averett, 255 Ala. 606, 52 So.2d 371 (1951), and McCord v. Harrison & Stringer, 207 Ala. 480, 93 So. 428 (1922). Thus, generally, the Court owes no duty to notify a party of the setting of a case or to continue a case because of his absence. Old Southern Life Insurance Co. v. Free, 46 Ala.App. 622, 247 So.2d 379 (1971).

This rule presupposes that a litigant, either himself or through his attorney, has responsibility for his case. In such situations, facts becoming known to the attorney are considered known by the client. See Waters v. American Casualty Co., 261 Ala. 252, 73 So.2d 524 (1954). The rule, however, does not contemplate the hybrid situation, presented in the case before us, where the litigant had no knowledge of the setting of the case and his attorney, though having knowledge of the setting, withdrew from the cause with the Court’s permission a mere three days prior to trial without even relating these facts to his client. The continuance could afford Knight no relief without some notification of both the withdrawal and the resetting.

Therefore, in the absence of any notification, the trial Court abused its discretion by entering a default judgment where, as here, the attorney of record withdrew from the cause immediately prior to trial. For this reason, the judgment of the trial Court is due to be reversed and remanded for trial upon the merits.

REVERSED AND REMANDED.

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

      . This Rule superseded Tit. 7, § 249, Code, but carried forward the essential provisions of that statute. See Rule 40(a), ARCP, Committee Comments.