author: PER CURIAM.

text:
    CHRYSLER CORPORATION v. William G. WELLS.
    SC 2686.
    Supreme Court of Alabama.
    April 28, 1978.
    Rehearing Denied May 26, 1978.

      E. Cutter Hughes, Jr. and Harold F. Herring of Lanier, Shaver & Herring, Huntsville, for appellant.
    George A. Moore, Huntsville, for appel-lee.
   PER CURIAM.

On November 14,1975, Chrysler contracted with Engineered Maintenance Services (EMS), an independent contractor, for the installation of overhead compressed air lines and housing in Chrysler’s plant in Huntsville. Under the contract, EMS was to furnish “. . . all Labor, Material, Tools, Equipment . .” and to perform “. . . all work required to construct . . . ” the compressed air piping system.

William G. Wells was employed as a welder by EMS on January 12, 1976. On January 15, 1976, while engaged in work for EMS at the Chrysler plant, Wells was injured as a result of a fall.

Wells climbed a 10-foot ladder supplied by his employer and then proceeded to climb storage bins on which were situated wire baskets used to contain products belonging to Chrysler. He stood in one of the wire baskets to perform his work approximately thirty feet above floor level. As he attempted to climb down, he supported his weight by holding onto the wire baskets. Before he reached the 10-foot ladder, two of the wire baskets broke loose from the metal bins under Wells’ weight and he fell to the floor, approximately twenty feet.

At the time of the accident, there were two or three A-frame ladders owned or supplied by EMS on the job site. These ladders were of sufficient length to reach the work to be done at or near the ceiling of the building. One of these ladders was located within fifteen or twenty feet of Wells at the time of his injury. One man, or certainly two men, could move these ladders.

Wells did not attempt to use either of the ladders, nor did he ask anyone to help him move one to the place where he needed to reach the ceiling.

Wells received Workmen’s Compensation benefits as a result of his injury and filed suit against Chrysler. His theory of liability is that, as an employee of an independent contractor, he was an invitee on Chrysler’s premises, and Chrysler negligently failed to provide him with a safe place to work.

The case was tried to a jury, which returned a $50,000 verdict in favor of Wells and against Chrysler. Chrysler appealed. We reverse and remand.

Wells contends that Chrysler was negligent in failing to warn him of the danger involved in using the storage bins as a means of access to his place of work.

This court has defined the duty owed by an owner of premises to an independent contractor a number of times. Veal v. Phillips, 285 Ala. 655, 235 So.2d 799 (1970); and Crawford Johnson and Co., Inc. v. Duffner, 279 Ala. 678, 189 So.2d 474 (1966):

“The owner of premises is not responsible to an independent contractor for injury from defects or dangers which the contractor knows of, or ought to know of. But if the defect or danger is hidden and known to the owner, and neither known to the contractor, nor such as he ought to know, it is the duty of the owner to warn the contractor, and if he does not do this he is liable for resultant injury. Crawford Johnson & Co. v. Duffner, 279 Ala. 678, 189 So.2d 474 .. . .” (Emphasis Supplied) (285 Ala. at 656, 235 So.2d at 802).

Wells has failed, under this test, to show that Chrysler breached any duty to him. The metal baskets which he elected to climb on to reach the place where he performed his work were not supplied by Chrysler as a means of reaching the job site. They were used as storage bins for Chrysler’s products. Wells’ assertion that he used them to climb on because he has seen another employee of EMS do the same does not make Chrysler responsible for injuries resulting from such use unless it can be shown in some way that Chrysler, at the least, sanctioned such use. The record falls short of establishing by the evidence that Chrysler did sanction such use. To the contrary, the evidence shows that Wells’ employer, EMS, was required by contract to furnish all equipment necessary to perform the job, and did so. Wells’ failure to use that equipment does not cast a duty on Chrysler tp undertake to supply equipment for the performance of the job undertaken by Wells’ employer.

This case is factually dissimilar from Alabama Power Company v. Henderson, 342 So.2d 323 (Ala.1976). In that case, the evidence showed that the owner of the premises, Alabama Power Company, retained active control over the manner in which the work to be performed by the independent contractor was carried out and the methods used. There is no evidence in the instant case that Chrysler exercised any control over the performance of the work by EMS, Wells’ employer.

We conclude, therefore, that, because the plaintiff Wells has failed to establish, by the evidence, a breach of any duty by Chrysler to him, the employee of an independent contractor, the judgment appealed from is reversed and the cause remanded for a new trial.

REVERSED AND REMANDED.

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


source: Caselaw Access Project

author: BEATTY, Justice.

license: Public Domain

text:
    Nicholas TOMARAS v. C. D. PAPADEAS.
    SC 2722.
    Supreme Court of Alabama.
    April 28, 1978.

      Samuel G. McKerall, Gulf Shores, Lloyd E. Taylor,'Fairhope, for appellant.
    J. Connor Owens, Jr., Bay Minette, Edwin J. Curran, Jr., of Vickers, Riis, Murray & Curran, Mobile, for appellee.
   BEATTY, Justice.

Tomaras appeals from a jury verdict in this will contest. We affirm.

The decedent, Christ Anargyros, a member of the Malbis Plantation community in Baldwin County, died on November 12, 1974. Two wills executed by him were offered for probate:

(1) The first will was dated August 21, 1970 and was prepared by a Mobile lawyer. This will was witnessed by the lawyer and by a Mr. Mathews, a resident of Malbis Plantation. It named C. D. Papadeas, the testator’s “friend,” as executor. Papadeas is a stockholder in and member of the Board of Directors of Malbis Plantation, Inc. Under the terms of this will certain real property located in Greece was devised to the testator’s two sisters. The residue and remainder of the testator’s estate, the bulk of which consisted of shares of stock in Malbis Plantation, Inc., was left to that corporation.

(2) The second will, dated May 23, 1972, was prepared by a Foley lawyer and named as executor and sole beneficiary Nicholas Tomaras, the testator’s nephew. This will was witnessed by the lawyer and one Er-molaos Moustakas, a friend of Tomaras who lived in Chicago but who was visiting To-maras at the time. After its execution this will was retained in Tomaras’ possession.

Following the death of Christ Anargyros, both wills were offered for probate, with Papadeas and Tomaras contesting the will offered by the other. The contests were consolidated for trial in the Circuit Court of Baldwin County, and a jury found in favor of the 1970 will. Judgment was rendered in that court directing the probate court to admit the 1970 will to probate. Motions for judgment N.O.V. and for a new trial were denied and this appeal ensued.

There are two issues presented:

(1) Whether Papadeas, as a stockholder in Malbis Plantation, Inc., had standing to contest the later 1972 will, and

(2) Whether the deposition of Mousta-kas taken in Athens, Greece was properly admitted into evidence at trial.

We answer both questions affirmatively.

With respect to the standing issue, § 43-1-70, Code of Ala. 1975 states that:

A will, before the probate thereof, may be contested by any person interested therein, .

The statutory phrase “any person interested therein” has been construed recently in Pruitt v. Pruitt, 343 So.2d 495 (Ala.1976):

Under this statute, if a person has a direct legal or equitable interest in the defendant’s estate, in privity with the decedent, “whether as heir, purchaser, or beneficiary under another will, which would be destroyed or injuriously affected by the establishment of the contested will,” he has standing to contest the will, (citations omitted)

It has also been held that the phrase “any person interested therein” is not limited to persons named as beneficiaries in the will, but includes any person with a direct interest in the estate disposed of by the will, i. e., the interest referred to is not in the will itself but in its operation. Braasch v. Worthington, 191 Ala. 210, 67 So. 1003 (1915).

The appellant argues that the appellee, Papadeas, as a stockholder of the beneficiary corporation, has only an indirect interest in the operation of the will; that the Papadeas contest, if successful, would vest testator’s property in Malbis Plantation, Inc., not in Papadeas as a stockholder, and thus Papadeas has no interest in the operation of the Tomaras will to give him standing to contest it. We hold, however, that appellee-Papadeas did have standing to contest the 1972 will because he had a direct equitable interest in the operation of the 1970 will as a beneficiary, which interest would be injured by the probate of the 1972 will.

In Alabama it is settled that the shareholders of a corporation are the equitable owners of its assets. Williams v. North Alabama Express, 263 Ala. 581, 83 So.2d 330 (1955). Indeed, the corporate asset of good will is equitably owned by the shareholders in the proportion that their shares bear to the total outstanding shares in the corporation. First Alabama Bancshares v. McGahey, 355 So.2d 681 (Ala.1977). The logic of this position finds support in a factually similar case, Diebold v. Commissioner of Internal Revenue, 194 F.2d 266 (3rd Cir., 1952). There a one-eighth owner of a closely held corporation devised his shares of stock to the corporation itself. The Court of Appeals viewed his action as a gift to the remaining stockholders in an amount in proportion to each stockholder’s relative interest. That Court reasoned that:

[b]eyond its status as a paper of monetary value, the share of stock represents rights of corporate ownership and control. Indeed, where corporate structure is not complicated by various classes of stock and shares are not freely sold as commodities, issued capital stock is significant primarily as the embodiment of proportional interests of ownership and control of the corporate enterprise by those to whom the stock belongs.

So it follows in this case that the gift expressed in the 1970 will of the stock and other property to Malbis Plantation, Inc. increased the percentage ownership of each shareholder thereof and increased the value of each shareholder’s ownership in the corporation in the proportion that his shares bore to the total outstanding shares. And because the 1970 testamentary gift, when effective, would vest in each shareholder as the equitable owner of the corporate assets, the appellee-Papadeas, as such a stockholder, had a direct equitable interest in the estate itself to come within the standing requirements set forth in Pruitt, supra, and in Braasch, supra.

Ermolaos Moustakas, a witness to the 1972 will, was deposed on two occasions. His first deposition was taken by Tomaras’ lawyer in Boston, Massachusetts on July 30, 1975. In that deposition Moustakas testified to the apparently valid execution of the 1972, or later, will. In December of 1976 Moustakas moved to Athens, Greece and sometime later contacted an attorney, a Mr. Scourtes, who also lived in' Athens and whom Moustakas had met at Malbis Plantation. Moustakas told Scourtes that his deposition taken in Boston was “all lies.” His recantation led to the taking of the Athens’ deposition the admissibility of which is now in issue.

This deposition was taken on March 24, 1977 by Papadeas. Also present in Athens for the deposition proceeding were Tomar-as, his brother-in-law, Nick Tsatos, Mousta-kas’ former employer in Montreal, and Peter Tsatos, who, according to Moustakas, was his best friend. In the Athens’ deposition Moustakas testified to a substantially different story than that contained in his Boston rendition. In the Boston deposition, Moustakas had testified that in May, 1972 the testator was alert and in good health, had expressed dissatisfaction with the management of Malbis, and wanted to leave all his assets to his nephew, Tomaras so that some “new blood” would be injected in the Malbis Plantation. However, in his Athens’ deposition Moustakas testified that all of the facts contained in the Boston deposition were false, and that in actuality the testator was old, sick and not alert. He also testified in Athens that neither he nor the testator knew that they were signing a will when the 1972 will was executed.

The appellant-Tomaras argues that it was reversible error for the trial judge to deny his motion to suppress the Athens’ deposition, and he lists his objections to it:

1. Incomplete;

2. Inaccurate;

3. In parts of the testimony it is impossible to tell which side is interrogating the witness;

4. A tape recording of questions and answers was played to the witness before Tomaras’ counsel was allowed to cross-examine;

5. The witness’ answers were paraphrased to the court reporter by Papadeas’ counsel whenever the reporter had difficulty in understanding the witness.

The appellant’s arguments, essentially, are that the deposition does not accurately reflect what was testified to in Athens, and that since all of Moustakas’ Athens’ testimony was not in court, then none of it should have been presented to the jury on the trial of this contest, and he cites Rule 32(a)(4), ACRP:

If only part of a deposition is offered in evidence by a party, an adverse party may require him to introduce all of it which ought in fairness be considered with the part introduced, and any party may introduce any other parts.

The appellee-Papadeas maintains that the contentions of Tomaras are not supported either by the record or by the deposition itself; to the contrary, he asserts that the deposition as reported is complete and accurate in all respects.

The record shows that the parties entered into a written stipulation pursuant to Rule 29, ARCP to the effect that the deposition might be taken before any person at any time or place upon any notice and in any manner, and when so taken might be used as other depositions taken in accord with Alabama Rules of Civil Procedure. This stipulation was approved by the circuit judge, See Rule 28(a). And in Athens, before his deposition began, Moustakas also stipulated that “all other requirements and technicalities of every sort which would be a prerequisite to the use of said deposition, except the filing of said deposition [are waived]; it being the intent of the parties hereto that said deposition may be used in evidence as though all requirements of said applicable sections of the Alabama Code had been complied with.” We note that in addition to this waiver, Tomaras’ objections to the admissibility of the deposition as evidence did not take the form of specific .objections to questions and answers at the time the deposition was introduced at the trial in Mobile. See Rule 32(b) and (d), ARCP. And on this appeal Tomaras makes the same argument against the admissibility of the deposition as evidence as he did against the trial court’s decision to deny his motion to suppress the deposition as a whole. The record does not support these objections.

(1) The objection of incompleteness concerned a series of questions on whether or not Moustakas, or members of his family, solicited a $30,000.00 bribe from Tomaras the night before the Athens’ deposition was taken, in exchange for either Moustakas’ disappearance of his continued support of the 1972 will. But the record contains thirty-eight pages which deal with this deposition and which concern these questions, with much of the examination having been propounded by Tomaras’ attorney. Moreover, the trial court itself noted that the deposition was complete concerning those issues, and overruled the same objection made presently. The state of the record supports his ruling.

(2) With respect to the presence of inaccuracies, Tomaras cites us to none.

(3) Contrary to the contention of the appellant, a reading of the Athens’ deposition reveals which side was asking the questions. The clarity of the respective positions, moreover, is enhanced by the index to the record which gives the appropriate pages for direct, cross, redirect, recross, further direct, and further cross-examination.

(4) We know of nothing improper in the use of a tape recorder to assist in the taking of a deposition, and this record does not suggest any impropriety therein. For aught that appears from the record the use of the tape recorder complained of was merely to assure that the deponent’s testimony was being accurately recorded. Cf. State ex rel. Baxley v. Strawbridge, 52 Ala. App. 685, 296 So.2d 779 (1974). And in that connection.

(5) The objection that Papadeas’ attorney was paraphrasing the deponent’s answers refers to that portion which occurred only before the tape recorder became available. Papadeas’ attorney explained that some paraphrasing was done to assist the reporter in recording Moustakas’ answers. Appellant’s counsel concedes that the paraphrasing was not extensive, and since he made no objection on this ground when the deposition was read he must not have considered it significant. The record discloses that the “paraphrasing” consisted of repeating the answers of the deponent. We fail to see that any prejudice could have resulted to Tomaras from that procedure. In any case, if there was error from such paraphrasing it was waived. Swindall v. Speigner, 283 Ala. 84, 214 So.2d 436 (1968).

Our review has convinced us that upon the issues presented for review the trial court’s rulings were correct. Accordingly, the judgment must be, and is, affirmed.

AFFIRMED.

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


author: JONES, Justice.

text:
    Nathaniel McCRAY v. James REED.
    SC 2747.
    Supreme Court of Alabama.
    April 28, 1978.
    Rehearing Denied May 26, 1978.

      J. Milton Coxwell, Jr., of Coxwell & Cox-well, Monroeville, Jerry L. Thornton, Hayneville, for appellant.
    Carolyn D. Gaines, of Chestnut, Sanders & Sanders, Selma, for appellee.
   JONES, Justice.

This appeal challenges, on jurisdictional grounds, the adjudication by the Circuit Court that an alleged Codicil to a Will is void. Because the alleged Codicil was not first offered for probate in the Probate Court, says Appellant, the Circuit Court was without jurisdiction to adjudicate a “contest” of that instrument. We affirm.

Due to the somewhat complex posture of the record, a detailed statement of the case and the facts is essential to an understanding of the issue presented.

It is undisputed that on March 27, 1969, the testator, Elijah Warren, executed a Will which was duly attested by Charlie C. Hut-chison and Iva D. Sullivan. This original disposition, inter alia, devised land to James Reed, Appellee.

At some later date (in 1974 or 1975 according to one witness), the name of James Reed was stricken from the Will and the name of Nathaniel McCray substituted in its place. In the left margin of the Will, adjacent to the changed name, there is what purports to be the mark of the testator, together with the signatures of S. M. Champion and J. B. Cook.

The original Will of 1969, attested by Hutchinson and Sullivan, was duly offered for probate in the Probate Court, proved by the witness Hutchison, and admitted to probate on August 26, 1976. The purported testamentary disposition evidenced by the changed name, along with the execution and attestation in the left margin of the Will, was never offered, proved, or admitted to probate.

Subsequently, Reed filed a complaint against McCray and others seeking to declare the purported testamentary disposition to McCray null and void. Upon a jury trial, judgment was entered on a verdict which recited that the “Codicil” to the Will of Elijah Warren was not valid. It is from the denial of McCray’s motions for post-judgment relief that this appeal is taken.

The complexity of the jurisdictional issue sought to be presented is dramatized by Appellant’s “Statement of the Issues”:

“I. Does a Circuit Court, sitting in Equity, have any jurisdiction, pursuant to Title 61, section 64, Code of Alabama, Recomp. 1958, when the will sought to be contested has not yet been admitted to probate in the Probate Court? No; the Circuit Court has no jurisdiction. [Citing Wachter v. Davis, 215 Ala. 659, 111 So. 917 (1927); Smith v. Bryant, 263 Ala. 331, 82 So.2d 411 (1955); and Ferrell v. Minnifield, 275 Ala. 388, 155 So.2d 345 (1963).]
“II. Must a codicil to a will be offered, proved and probated in the same manner as the original will to which it refers? Yes; both a will and a codicil thereto must each be offered for probate, proved and admitted to probate. [Citing Kelly v. Richardson, 100 Ala. 584, 13 So. 785 (1892); McKissack v. Ashurst, 220 Ala. 576, 126 So. 636 (1929); 95 C.J.S., Wills, § 415; and Black’s Law Dictionary, 3rd ed., “Codicil.”]
“HI. Does a Court have any power to act in a matter over which it has no subject-matter jurisdiction? No; and jurisdiction cannot be conferred by consent of the parties or by waiver. [Citing Koppers Co. v. Gulf Welding and Construction, Inc., 285 Ala. 331, 231 So.2d 896 (1970); and Norton v. Liddell, 280 Ala. 353, 194 So.2d 514 (1967).]”

Admittedly, if the disposition of this appeal depended upon our agreement with the suggested responses to the three questions set out above, a summary order of reversal and remand would be appropriate. Indeed, few areas of the law are as well settled as the propositions urged by Appellant in his “Statement of the Issues.” But the posture of the record before us does not support this “Statement” as the dispositive issue here presented. Though framed in terms of a Will “contest,” the action was, instead, treated as a bill for a declaratory judgment. It is in this posture, then, that we will review the matters raised.

Thus viewed, the Circuit Court has jurisdiction over this action and it is governed by well-settled law as expressed in Calhoun v. Thomas, 274 Ala. 111, 145 So.2d 789 (1962):

“It is no part of the duty of the probate court to construe a will propounded for probate, or to pass upon the effect of its provisions. If the paper is in form of a will, is executed according to law, and the testator is shown to possess the requisite capacity, and no undue influence be shown, it is the duty of the court to admit it to probate. [Citations omitted.] The will before us met all the requirements and was entitled to be probated irrespective of the marking through certain words .

“The declaratory judgment statute, Tit. 7, § 157, gives a person interested under a will the right to ‘have determined any question of construction or validity arising under the instrument.’ The real question presented was the validity of the act of the testator in marking through certain words . . . and signing his name.

“This question is decided adversely to appellants’ contentions in Law v. Law, 83 Ala. 432, 3 So. 752 [1887], where the court said:

“ ‘All alterations or revocations of any part or any clause of a properly executed will must be made not by burning, tearing, cancelling, or obliterating, but only by a new will or codicil properly subscribed by the testator, and attested by at least two subscribing witnesses in the mode prescribed by the statute.’ 145 So.2d at 791. (Second emphasis added.)

In the case before us, the jury, in determining that the alleged Codicil was not valid, impliedly determined that the witnesses to the alleged Codicil did not fulfill all statutory requirements. Because the evidence presented supports this conclusion we are not at liberty to overrule this verdict. See Dixie Electric Co. v. Maggio, 294 Ala. 411, 318 So.2d 274 (1975). Without the existence of an effective Codicil, the Will must be read as originally written and executed. Law, supra; 95 C.J.S. Wills §§ 270, 282; and 79 Am.Jur.2d Wills, §§ 258, 556.

“In Barnewall v. Murrell, 108 Ala. 366, 18 So. 831 [1895], we held that if there are alterations or additions to a will, they do not vitiate the instrument. If not made as the statute requires, they are mere nullities, and the will as it existed at the time of execution is unaffected in validity. Regardless of the thoughts or contemplation of the testator, until there is a change, or alteration, or revocation in the mode required by statute, the legal presumption is that the result of all thought and contemplation was a determination to adhere to the will as executed.” Calhoun, 145 So.2d at 792.

The trial Court had jurisdiction to adjudicate the central issue presented by the pleading — an interpretation of the purported alterations and additions to the Will.

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

AFFIRMED.

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


author: SHORES, Justice.

text:
    FIRST BANK OF RUSSELL COUNTY v. William R. WELLS et al. and JACK J. HUGHES, INC. v. William R. WELLS et al.
    SC 2758, SC 2759.
    Supreme Court of Alabama.
    April 28, 1978.
    Charles E. Floyd, Phenix City, for appellants.
    H. Kenneth Wilkes, Baker & Wilkes, Ope-lika, for appellees.
   SHORES, Justice.

Jack J. Hughes, Inc. (Builder) brought an action seeking reformation of a deed and mortgage against William R. Wells and his wife, Wanda Wells (Wells), and First Bank of Russell County. The Bank filed a cross-claim seeking reformation of the same deed and mortgage and also asked the court to establish a lien in its favor upon land and a house thereon owned by Wells and constructed by Builder.

The trial court refused to reform the deed and mortgage, but did establish a lien in favor of the Bank on the Wells’ property upon which the house was constructed in the amount of $25,441.56 with interest at 6% per annum until paid in full.

The Builder and Bank appealed.

The litigation arose out of these facts: Mr. and Mrs. Wells purchased Lots 32 and 54 of Avalon Acres in Lee County. The Wells executed a purchase money mortgage on these two lots in favor of Avalon. . Lot 32 consisted of more than eleven acres. In 1973, the Wells decided to have a house constructed on Lot 32. They discussed with a bank the procedure for securing financing through the Veterans Administration. They were advised that the V.A. required a site plan. The Wells had a site plan prepared which was approved by the V.A. The V.A. issued a loan commitment of $33,000 at 7%% interest for thirty years. The Wells also obtained a release from Avalon describing by metes and bounds the property as platted on the site plan, which amounted to approximately 2 acres of the 11.8 comprising Lot 32. They then entered into a contract with the Builder to construct a house on that property and conveyed by warranty deed the property described by metes and bounds on which the house was to be built. The Builder, in turn, executed a mortgage on the same property to the Bank, which advanced the construction money to the Builder.

Wells and the Builder, while walking over the property, agreed to locate the house at the point where it was constructed. The property released from the Avalon mortgage and conveyed to the Builder thereafter mortgaged to the Bank was never marked by stakes or otherwise. The Builder and Wells agreed as to the location of the house without making any measurements. There were no reference points, grade stakes or iron pens. When the house was completed and a final survey was made to satisfy V.A. requirements, all parties, Wells, the Builder and the Bank, learned for the first time that the house “missed” being on the surveyed lot by two feet. The house was actually built on another part of Lot 32, which was also owned by Wells, subject to the mortgage in favor of Avalon.

Another survey was prepared which encompassed the exact quantity of land as the original. The house was located on the land included in the second survey. The V.A. approved the second survey, inspected the house, and issued its final approval of the permanent loan. The loan was prepared for closing but the Wells refused to close. They thereafter moved into the house and continued to live in it at the time of trial. They have no objection to the house by reason of its location.

Although there was some testimony that the Avalon Corporation agreed to execute a release of the property on which the house was situated, this was not done; and, in fact, the interest of Avalon in the mortgage covering the remainder of Lot 32. and Lot 54 was ultimately assigned to the Builder. The Wells continued to make payments of $109 per month on the note secured by this mortgage and it is not in default.

At the time of trial, the Builder was continuing to pay the interest on the construction loan and the Wells were occupying the house.

On appeal, the Bank and Builder contend that the trial court erred in refusing to reform the deed and mortgage to reflect the true intention of the parties, which was to construct the house on property owned by the Wells and not subject to the Avalon mortgage. Inasmuch as the Builder now holds that mortgage, no rights of a third party will be affected by reforming the deed and mortgage to describe the property upon which the house was actually built. On this point, we think the case is controlled by Hulsey v. Folsom, 286 Ala. 474, 241 So.2d 889 (1970).

In Hulsey, supra, the Dunns deeded two acres of an eighty-acre tract to their daughter and son-in-law (the Hulseys) for the purpose of building a house. Thereafter, the daughter and son-in-law executed a mortgage to a builder which carried the same description of the property as the deed for the Dunns. After the house was constructed, it was discovered for the first time that the house was not on the two acres described in the deed and mortgage. This court held that the builder was entitled to have the deed and mortgage reformed, saying:

“We can imagine no case more inequitable than to hold that the appellees [Builders] are not entitled to a reformation of these instruments to correct what is unquestionably a mutual mistake. . It is apparent that every party to this transaction — the Dunns who originally deeded the land to the Hulseys, the Hul-seys and Tri-State — all thought that the deed described the land on which the house was built. Each of the parties intended to convey the two acres of land on which the house was built. . . .” (286 Ala. at 476, 241 So.2d at 892)

The court concluded that, under those facts, the instruments were due to be reformed to correct a mutual mistake. This case is indistinguishable.

The Wells argue that the Builder is precluded from maintaining this suit because it is a foreign corporation not qualified to do business in this state and, thus, its contract is void and the action barred under the provisions of Title 10, § 21(89), Code (now § 10-2-254, 1975 Code). We cannot agree. First of all, this is not a suit on a contract. As this court said in Jones v. Americar, Inc., 283 Ala. 638, 643, 219 So.2d 893, 896 (1969):

“We think that which is prohibited in the Alabama statutes are suits on contracts by unqualified corporations. .

We would add — and only such suits. This court has consistently held that foreign, nonqualified corporations are not denied enforcement of property rights by our statutes. Jones v. Kendrick Realty Co., 287 Ala. 402, 252 So.2d 61 (1971).

Statutes such as ours which declare void, at the action of a nonqualified foreign corporation (or any person claiming under such corporation), all contracts or agreements entered into in this state are not only penal, but are, as well, in derogation of the common law. They, therefore, should be strictly construed. Sayers & Muir Service Station v. Indian Refining Co., 266 Ky. 779, 100 S.W.2d 687 (1936), cited with approval in Jones v. Americar, Inc., supra. They should not be read so as to deny to litigants equitable rights long recognized by our jurisprudence. To deny to the Builder in the instant case the relief it seeks because of § 10-2-254, 1975 Code, would not only result in a decision which would unjustly enrich the Wells but would also read into the statute a prohibition which is not there.

The judgment appealed from is reversed and remanded.

REVERSED AND REMANDED.

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


author: MADDOX, Justice.

text:
    William E. CADDEN et al. and Lt. Col. A. M. Adams et al. v. G. Russell LADD, III, et al.
    SC 2795.
    Supreme Court of Alabama.
    April 28, 1978.

      Mitchell G. Lattof, of Diamond, Lattof & Gardner, Mobile, for appellants.
    Louis E. Braswell and Edward S. Sledge, III, Mobile, for appellees.
   MADDOX, Justice.

This appeal is from a judgment of the Circuit Court of Mobile declaring that the action taken by trustees of U.M.S. Alumni and Parents Association to abolish the mandatory military program at University Military School and to change the name of the school to UMS Preparatory School, was not beyond their power.

U.M.S. Alumni and Parents Association, Inc. filed its certificate of incorporation for record on January 16, 1946. Pertinent portions of the certificate read:

PREAMBLE
“KNOW ALL MEN BY THESE PRESENTS, that whereas the undersigned persons, being interested in the welfare and development of University Military School in Mobile, Alabama, and being mindful of the importance to this community of perpetuating the type of educational and character building institution as was maintained there by its founder, the late Doctor Julius Tutwiler Wright and by the late Mr. William S. Pape; and
“WHEREAS, the attainment of such purposes can best be accomplished by placing the destinies of said school in the hands of its alumni and the parents of its students banded together as an incorporated educational non-profit-sharing society. “NOW, THEREFORE, the undersigned, being all of the members of an unincorporated educational society formed for said purposes and desiring to become incorporated as such and having adopted a resolution signifying such intention and having elected Trustees for said purposes, as hereinafter indicated, do hereby make and file the following certificate;
* * * * * *
OBJECTS AND NAME OF SCHOOL II
“The objects for which this corporation are formed are to operate, promote and develop University Military School in Mobile, Alabama, as an institution of a permanent nature at which the education and character building of boys, as originally conceived for it, may be continued most effectively, and such purposes as may be necessary or incident thereto, and in the' discretion of the Board of Trustees to establish, operate, promote and develop a similar institution for girls.
* ♦ * * * * *
AMENDMENT VII
“This charter may be amended by the vote of two-thirds of the members who vote on such amendment at an election called on such notice and held on a date fixed in such notice and conducted in such manner as is hereinabove stated with respect to the election of Trustees; provided, however, that the essential objects, purposes and characteristics of the Corporation shall not be changed by amendment to this charter, or otherwise. As to any matter properly presented to the vote'of the members of the Corporation (except as otherwise stated in this charter) a majority of the votes cast by such members shall govern.”
After a hearing the trial court found:
“. . . [Tjhat, the primary purpose of the corporation was (as is stated in Article II of the Certificate) to operate, promote and develop the school as an institution at which the education and character building of boys may be continued most effectively. The Court further finds that this is consistent with the desire and aim of the founder of the school. The court finds that the existence of the military aspect of the training at the school was but one of many means of assisting in achieving discipline and accomplishing the primary and main purpose of the institution that is, of affording young boys the best kind of education and character building possible.
* * * * *
“. . . That the actions of the defendant Trustees in abolishing the mandatory military program at University Military School and the change of the name of the school to ‘U.M.S. Preparatory School’ are within the powers and authority granted to the Board by the Certificate of Incorporation and the laws of this state and that their said action in changing the same are not ultra vires but are valid and no amendment to the Certificate of Incorporation is required.”
We affirm.

The general rule is that courts will not interfere with the internal business management of corporate assets by the board of directors. This rule applies except in a case of fraud or maladministration, which is destructive or injurious to the corporation. Cherry Investment Corp. v. Folsom, 273 Ala. 575, 143 So.2d 181 (1962).

Furthermore, the charter of a corporation, read in connection with the general laws applicable to it, is the measure of its powers.

If the power to act in a particular fashion is stated expressly in the charter, or is necessarily incidental to the express powers stated, then the courts have no authority to substitute the judgment of the directors with their own. Cf. Alabama City, G. & A. Ry. Co. v. Kyle, 202 Ala. 552, 81 So. 54 (1918); See also, 19 C.J.S. Corporations § 743, pp. 83-84. Cf. Phinizy v. Anniston City Land Co., 195 Ala. 656, 71 So. 469 (1916); Waldrop v. Martin, 237 Ala. 556, 188 So. 59 (1939). This, of course, assumes that the charter does not grant powers which contravene state law. Cf. Security Trust & Savings Bank v. Marion County Banking Co., 287 Ala. 507, 253 So.2d 17 (1971). Chewacla Lime Works v. Dismukes, Frierson & Co., 87 Ala. 344, 6 So. 122 (1888).

The Certificate of Incorporation of U.M.S. Alumni and Parents Association, Inc. does not contain an express clause authorizing the deletion of the mandatory military program, nor does it expressly grant the directors the power to change the name of the institution. But the question is: Are these powers necessarily incidental to the objects for which the corporation was created? The trial judge answered the question in the affirmative. We find that he did not err.

In Patterson & Edey Lumber Co. v. Bank of Mobile, 203 Ala. 536, 84 So. 721 (1919), the Supreme Court stated that the phrase “necessarily incident to the powers for carrying out the objects of the charter” was not intended to indicate that the acts should be “indispensably necessary to the purposes of the corporation, but only that they should be necessary in the sense of being appropriate and suitable for the purposes for which the corporation was organized.” 203 Ala. at 538, 84 So. at 722.

The charter of the corporation does not expressly or impliedly prohibit the directors from changing the name of the school or from dropping the mandatory military program. Therefore, we affirm the decree of the trial court which determined that the trustees did not exceed their powers.

AFFIRMED.

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


text:
    The CITY COUNCIL OF the CITY OF PRICHARD et al., etc. v. A. J. COOPER, Jr.
    77-10.
    Supreme Court of Alabama.
    April 28, 1978.
    Robert G. Kendall, of Johnston, Johnston & Kendal], Mobile, for appellants.
    James H. Lackey, of Atchison, Clay & Street, Mobile, for appellee.
   BEATTY, Justice.

Appeal by members of the City Council of the City of Prichard from an order enjoining them from conducting the business of the City of Prichard in a certain specified manner. We affirm.

The action originated with a complaint filed by the Mayor of the City of Prichard, in his capacity as mayor and as a citizen. He sought declaratory and other general equitable relief to determine whether the members of the city council could conduct the business of the city “by means of letters signed by at least three (3) of the five (5) Councilmen in non-emergency situations.”

This conduct of government by correspondence, as it were, arises from the fact that matters requiring action surfaced between the bi-weekly meetings of the council. In such cases three or more of the five council members signed a letter of authorization, following which the action proceeded, with a general ratification of such action occurring at the next council meeting. The trial court enjoined the practice we have described.

In the court below and on appeal the defendant councilmen have attacked the standing of the plaintiff-mayor to bring this action, and have contended as well that no injury has occurred to justify the injunc-tive relief which the trial court granted. We have limited our review to those contentions and find no merit in either ground.

The complaint describes the plaintiff as the duly elected Mayor of the City of Prichard and as a citizen of Mobile County. We judicially know that Prichard is located in Mobile County. As mayor Cooper is the chief executive officer of the city, Tit. 37, § 441, Alabama Code (Recomp. 1958) (now Code of Ala. 1975, § 11-43-81) with numerous statutory duties and responsibilities. See generally Tit. 37, §§ 441 — 445, Alabama Code, supra (now Code of Ala. 1975, § 11-43-81 through § 11-43-85). Bearing such affirmative responsibilities, the mayor is a real party in interest when he, as a public officer, is confronted with questions concerning his duty under statutory law. This is particularly true when those questions are controverted by other city officials who interpret their own statutory responsibilities in a manner which might make his own actions either inconsistent with his legal duties or subject to legal challenge. Curry v. Woodstock Slag Corp., 242 Ala. 379, 6 So.2d 479 (1942). If, as chief executive officer of the municipality, the mayor is to carry out the legislative decisions of the council certainly he has standing to inquire by a declaratory judgment proceeding whether those decisions are legally made.

Official action, done or threatened, challenged as unlawful, a usurpation of official power, whether lack of authority appears in the terms of the statutes, . are said to be determinable in this manner [by declaratory judgment] rather than force the parties to seek injunctive relief, . . . . Scott v. Alabama State Bridge Corp., 233 Ala. 12, 169 So. 273 (1936).

See also Tit. 7, § 157, Alabama Code (Recomp. 1958) (now Code of Ala. 1975, § 6-6-223).

There was no irregularity contained in the plaintiff’s complaint merely because it requested both declaratory and other equitable relief, Donoghue v. Bunkley, 247 Ala. 423, 25 So.2d 61 (1946); Tit. 7, § 163, Alabama Code, supra (now Code of Ala. 1975, § 6-6-230), and the defendants do not make any such contention. They maintain that the trial court’s order enjoining the councilmen’s practice, heretofore described, was erroneous because of the absence of proof of any injury testifying injunctive relief.

The trial court found that:

[t]he practice complained of by Plaintiff has resulted in the expenditure of large sums of funds and the conduct of other business of the City which affects the ■rights of the Plaintiff and his fellow citizens. That there exists between the Plaintiff and the Defendants an actual controversy which is definite, real and substantial, which touches the legal relationship between Plaintiff and Defendants in a manner within the jurisdiction of this Court. That the Defendants have announced their intention to continue transaction of City business in the manner complained of by the Plaintiff; that the conduct of business by means of letters signed by at least three of the five City Councilmen is null, illegal, void and unlawful and if permitted to continue would cause further irreparable harm and damage to the Plaintiff as well as his fellow citizens. That the procedure of signing letters or other documents by three or more City Councilmen and then making the group of documents all ‘a matter of record’ subsequently by action at a formal Council meeting denies the public substantial rights and effectively circumvents the will of the legislature.

It is noted that the trial court found affirmatively that continued operation of the city government in the manner complained of would cause further irreparable harm to the plaintiff and other citizens. This finding is strengthened by considering the plaintiff’s alternatives. To relegate him to additional actions for declaratory relief to determine whether in each instance a valid decision has been taken by the council would require a multiplicity of suits. To require such an unreasonable redress is in itself an irreparable injury to him, accord, Medical Society of Mobile County v. Walker, 245 Ala. 135, 16 So.2d 321 (1944), not to mention the effect upon the city’s citizens which may ensue from a continuation of such practices. Cf. Montgomery Limestone Co. v. Bearden, 256 Ala. 269, 54 So.2d 571 (1951).

A request for an injunction is directed to the sound discretion of the trial court under the facts and circumstances of the particular case. Reed v. City of Montgomery, 341 So.2d 926 (Ala.1976). We cannot find an abuse of that discretion in this case. Let the judgment of the trial court be affirmed.

AFFIRMED.

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


text:
    HAMON LEASING, INC., v. CONTINENTAL CARS, INC.
    77-92.
    Supreme Court of Alabama.
    April 28, 1978.
    Clellon K. Baeder, Huntsville, for appellant.
    John M. Heacock, Jr., of Lanier, Shaver & Herring, Huntsville, for appellee.
   MADDOX, Justice.

The legal issue presented here is whether plaintiff timely filed his request for trial by jury.

Plaintiff’s initial complaint, filed October 28, 1975, contained no demand for jury. Defendant timely answered the complaint on November 26, 1975, and the parties subsequently engaged in limited discovery. On October 15, 1976, almost one year after the filing of the original complaint, the plaintiff filed an “Amended Complaint” and, for the first time, demanded a trial by jury. Defendant moved to strike the jury demand, alleging:

“Said jury demand was not filed within the time prescribed by Rule 38(b) and has therefore been waived under the provisions of Rule 38(d) ARCP. Indeed, said jury demand comes after said case has already been set on this court’s non-jury docket and within less than two weeks of the scheduled trial of the case.”

The trial judge heard the case, without a jury, on May 11, 1977, and found the issues in favor of the defendant.

Plaintiff’s motion for a new trial presented one ground; that the trial judge erred in refusing to grant a trial by jury.

We affirm.

The amended complaint essentially reasserted, in slightly different language, the same factual issues alleged in the original complaint, which were controverted by defendant’s answer.

If the amended complaint had presented a “new issue,” then either party would have been entitled to demand a jury trial as to the new issue. However, when the 30-day period of Rule 38(b) has run, an amendment of a pleading which does not introduce new issues will not give rise to the right to demand a jury. 5 Moore’s Federal Practice, ¶ 38.41, p. 328.4. Connecticut General Life Ins. Co. v. Breslin, 332 F.2d 928 (5 Cir.1964).

We find that plaintiff waived its right to a jury trial by failing to timely file its demand. We also note that the plaintiff did not request, by motion, pursuant to Rule 39(b), that the trial court grant a trial by jury, “notwithstanding [its] failure . to demand a jury . . . .” Cf. Clayton v. Simpson, 346 So.2d 457 (Ala.Civ.App.1977).

In Swofford v. B & W, Inc., 336 F.2d 406 (5 Cir.1964), the court noted:

“ * * * [I]f a jury trial has been waived, a motion is necessary to invoke the court’s discretion since the court may not employ Rule 39(b) of its own initiative. See 2B Barron & Holtzoff, Federal Practice and Procedure § 892, at 67 (Wright ed. 1961). But Rule 39(b) says in part: ‘notwithstanding the failure of a party to demand a jury in an action in which such a demand might have been made of right, the court in its discretion upon motion may order a trial by a jury * * *.’ (Emphasis added.) We think that when a demand has been made, though untimely, it is not reversible error for the district court to exercise its own discretion under Rule 39(b) even though we have advised previously that ‘[a] motion to the court under Rule 39 rather than service of a demand under Rule 38 is the proper course * * *.’ Roth v. Hyer, 5 Cir. 1944, 142 F.2d 227, 228.”

The judgment appealed from is due to be affirmed. Having affirmed the judgment, we find it unnecessary to rule on appellee’s motion to dismiss the appeal.

AFFIRMED.

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


text:
    C. C. SALTER et al. v. ALABAMA PUBLIC SERVICE COMMISSION et al.
    77-220.
    Supreme Court of Alabama.
    April 28, 1978.
    Rehearing Denied May 26, 1978.
    George M. Boles, Birmingham, for appellants.
    R. S. Richard and William K. Martin, Montgomery, for Arrow Truck Line, Inc., Vulcan Freight Line, Inc., and Alabama Freight, Inc., appellees.
    Carl L. Evans, Montgomery, Ann R. Downing, Asst. Atty. Gen., for Ala. Public Service Commission, Juanita W. McDaniel, Jim Zeigler and C. C. Whatley, appellees.
   PER CURIAM.

Affirmed on the authority of Jefferson Trucking Co. v. Alabama Public Service Commission, 347 So.2d 372 (Ala.1977). See also Redwing Carriers, Inc. v. Alabama Public Service Commission, 356 So.2d 129 (Ala.1978); and Redwing Carriers, Inc. v. Beasley, 341 So.2d 939 (Ala.1977).

AFFIRMED.

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


text:
    Virgil WRIGHT v. CUTLER-HAMMER, INC., Southern Engineering & Equipment Co.
    77-221.
    Supreme Court of Alabama.
    April 28, 1978.
    Danny D. Henderson, of Henderson & Grace, Huntsville, for appellant.
    L. Tennent Lee, III, of Cleary, Lee, Porter, Evans & Rowe, Huntsville, for appellee, Southern Engineering and Equipment Co.
    Jerry B. Ange, of Ford, Caldwell, Ford & Payne, Huntsville, for appellee, Cutler-Hammer, Inc.
   JONES, Justice.

This case arises from a summary judgment entered against Plaintiff-Appellant, Virgil Wright, holding that the action was barred by applicable statutes of limitations. Though summary judgment was granted as to all counts of Wright’s complaint, the sole issue raised on this appeal concerns the appropriate statute of limitations for personal injury actions based upon an alleged breach of an implied warranty.

The facts in this case are not in dispute. In September, 1971, The Industrial Development Board of the City of Scottsboro, acting on behalf of Revere Copper & Brass Company, issued purchase orders to Appel-lee, Southern Engineering & Equipment Company for certain overhead crane operator-control consoles. Appellees, Southern Engineering and Cutler-Hammer, Inc., manufacturers of the units, complied with these purchase orders and delivered the crane consoles to Revere on December 17, 1971.

On April 18, 1973, Wright was injured while installing an ait conditioner unit in Revere’s (his employer’s) crane. The crane had been used in Revere’s plant since its delivery. Wright filed suit on April 12, 1976, raising three counts: negligence; wantonness; and breach of implied warranties of merchantability and fitness. The trial Court granted Appellees’ Motion for Summary Judgment as to all counts; hence, this appeal.

As stated, the sole question raised on this appeal is whether the trial Court properly held that the limitation period had run. Both parties urge application of this State’s enactment of the UCC. Thus, they seek an interpretation of the limitation provision found in § 7-2-725, Code (1975). This section provides, inter alia:

Statute of limitations in contracts for sale.
(1) An action for breach of any contract for sale must be commenced within four years after the cause of action has accrued. By the original agreement the parties may reduce the period of limitation to not less than one year but may not extend it.
(2) A cause of action accrues when the breach occurs, regardless of the aggrieved party’s lack of knowledge of the breach. A breach of warranty occurs when tender of delivery is made, except that where a warranty explicitly extends to future performance of the goods and discovery of the breach must await the time of such performance the cause of action accrues when the breach is or should have been discovered; however, a cause of action for damages for injury to the person in the case of consumer goods shall accrue when the injury occurs.

Wright contends that he, as an employee of Revere, is a consumer and that the limitation period begins to run from the date of his injury. He seeks application of the four-year period, however, rather than the period normally applicable in' tort situations. Assuming we disagree with this contention, he seeks application of the first exception- — “explicitly extends to future performance.” We will consider these contentions in inverse order.

Section 7-2-725(2) contains two exceptions to the general rule as to when a cause of action accrues. The first exception stated above provides:

. except that where a warranty explicitly extends to future performance of the goods and discovery of the breach must await the time of such performance the cause of action accrues when the breach is or should have been discovered .. (Emphasis added).

Wright’s contention that this exception applies because the parties to the contract contemplated future performance of the goods is fallacious. The Code provides that the contract must “explicitly” extend to future performance. Plaintiff, in this action, has shown no such provision in the contract which extends application to warranties to future performance. Furthermore, other states have held that this exception pertains only to express warranties. See, e. g., General Motors Corp. v. Tate, 257 Ark. 347, 516 S.W.2d 602 (1974); and Wilson v. Massey-Ferguson, Inc., 21 Ill.App.3d 867, 315 N.E.2d 580 (1974). We agree with this reasoning because the theory here sued upon is that of implied warranty. The terms “explicit” and “implied” are contradictory.

“It does not seem logical that the Code intended that an implied warranty be explicitly extended to future performance.” General Motors, 516 S.W.2d at 606.

Therefore, the exception here considered applies only to express warranties which explicitly extend the warranty to future performance. See generally White and Summers, Uniform Commercial Code, § 11-8, pp. 341-42.

Similarly, Wright’s contention that the second statutory exception applies is misplaced. That exception is a “nonconforming” amendment which expands certain consumers’ rights. Atkins v. American Motors Corp., 335 So.2d 134 (Ala.1976); and § 7-2-725, Alabama Comment, Code (1975). See also Grimes v. Massey Ferguson, Inc., 355 So.2d 338 (Ala.1978). This exception provides:

. however, a cause of action for damages for injury to the person in the case of consumer goods shall accrue when the injury occurs. (Emphasis added.)

Thus, the exception clearly applies only in the case of “consumer goods.” This application cannot be extended beyond the field of operation clearly defined by the statute in unambiguous terms. It cannot be presumed the Legislature has used language without any meaning or application whatever. Fletcher v. Tuscaloosa Federal Savings and Loan Ass’n, 294 Ala. 173, 314 So.2d 51 (1975); and Standard Oil Company of Kentucky v. State, 218 Ala. 243, 118 So. 281 (1928). Therefore, the exception would apply only if the overhead crane and its console were deemed “consumer goods,” as that term is used in the UCC.

Section 7-2-103 refers to § 7-9-109 as stating the applicable definition of “consumer goods.” That section provides:

Goods are:

(1) “Consumer goods” if they are used or bought for use primarily for personal, family or household purposes;
(2) “Equipment” if they are used or bought for use primarily in business .

These classifications are mutually exclusive. § 7-9-109, Comment 2, Code (1975).

It appears the crane is a classic example of goods used as “equipment.” Comment 3 to § 7-9-109 states that machinery used in manufacturing is equipment. Surely, to consider an overhead crane, used in a manufacturing plant, as “consumer goods,” as that term is defined above, stretches one’s imagination beyond the realm of realism.

Furthermore, merely because this Court has acknowledged the Legislature’s intent to eliminate the need for “vertical privity” in personal injury actions (Bishop v. Sales, 336 So.2d 1340 (Ala.1976)) does not expand application of this rule. See Peeke v. Penn Central Transportation Co., 403 F.Supp. 70 (E.D.Pa.1975). The statute clearly defines its area of application and we cannot ignore the clear implication of its meaning. Fletcher, supra.

Therefore, because neither exception applies, this case falls under the general limitations stated in the statute. Thus, the action accrues upon tender of delivery of the crane, and this is so “regardless of the aggrieved party’s lack of knowledge of the breach.” § 7-2-725(2), Code (1975). Wright had four years from that date to bring this action. § 7-2-725(1), Code (1975). Having failed to do so, it is barred as being untimely. We take note of the authorities which, for personal injuries, utilize the more general statute of limitations for torts. See, e. g., Morton v. Texas Welding and Manufacturing Co., 408 F.Supp. 7 (S.D.Tex.1976). We believe, however, that the better-reasoned opinions utilize the period stated in the Code where, as here, the action is brought under a warranty theory. Grimes, supra. See Sinka v. Northern Commercial Co., 491 P.2d 116 (Alaska 1971); and Gardiner v. Philadelphia Gas Works, 413 Pa. 415, 197 A.2d 612 (1964). This is true even though damages for personal injuries are sought, so long as the injuries were not caused by consumer goods. Grimes, supra.

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

AFFIRMED.

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

      . Because no constitutional issue was raised, we do not speak to that question. Ex parte Hanna, 267 Ala. 527, 103 So.2d 720 (1958).


text:
    Faye Miller COLE v. James L. ADKINS et al.
    77-328.
    Supreme Court of Alabama.
    April 28, 1978.

      Talmadge H. Fambrough, Pell City, for appellant.
    William J. Trussed of Church, Trussed & Robinson, Pell City, for appellees.
   SHORES, Justice.

This action began as one for sale for division of certain lands.

Mrs. Minnie Adkins Miller is the mother of the plaintiff and ad of the original defendants. She was first married to Mr. Adkins and had several children by him. They lived on the property as man and wife, as tenants of Acmar Land Company, for whom Mr. Adkins worked. Mr. Adkins was killed in the 1930’s. Mrs. Adkins continued to live on the property; and, three or four years after her first husband’s death, she married Mr. Miller, who was the father of the plaintiff, Faye Miller Cole. Mr. Miller died in 1963.

James Louis Adkins acquired title to the property from Acmar Land Company in 1952; and in 1954 acquired an adjoining piece of property from Ella and J. L. McLaughlin. His mother continued to live on the property and did so until her death in 1970. James Louis Adkins paid taxes on the property from 1952 to the present.

In 1963 (the year in which his stepfather died), James Louis Adkins executed a deed to the property to his mother. No consideration passed for this deed, and James Louis continued to support his mother until she died. After her death, intestate, Faye Miller Cole, a half sister of the Adkins children, filed this action against the Adkins for a sale for division. All of the other Adkins children executed quit claim deeds in favor of James Louis and they were dismissed as defendants. James Louis filed his counterclaim seeking the declaration of a constructive trust in his favor.

The court granted the relief sought by counterclaim and the plaintiff appealed.

There is evidence in the record from which the trial court could have concluded, as it did, that, at the time the property was conveyed by James Louis to his mother, his mother promised to reconvey it to him. There was also evidence that James Louis conveyed the property to his mother, with whom he maintained a very close relationship until she died, to insure that she would have a place to live for the rest of her life regardless of any future financial reverses which he might suffer. The evidence does not show that he suffered any future financial reverses, and there is no evidence that the conveyance was made by James Louis to defraud his creditors. All of the witnesses, except the plaintiff, testified that the property belonged to James Louis, that he took care of his mother and other members of the family, including his half sister, the plaintiff, and her family, and that their mother always recognized that the property belonged to James Louis. Although James Louis did not rest his claim to the property under his mother’s will and did not attempt to establish a lost, will, there was evidence that his mother executed a will in which the property was left to James Louis. That will was drawn by an attorney and properly executed. The will was never found, but the fact of its execution and content was undisputed.

The trial court found that these circumstances created a constructive trust in favor of James Louis; and, since the plaintiff’s only claim to any interest in the property was by way of intestate succession from her mother, the constructive trust attached to her interest in the property. We affirm.

On appeal, the plaintiff argues that the evidence fails to support the trial court’s finding that a constructive trust existed in favor of James Louis. A constructive trust is properly impressed upon property under certain limited circumstances even though the Statute of Frauds makes an oral agreement to convey land unenforceable. In Restatement of the Law of Restitution, § 182 (1937 ed.), the principle is stated as follows:

“Where the owner of an interest in land transfers it inter vivos to another upon an oral trust in favor of the trans-feror or upon an oral agreement to recon-vey the land to the transferor, and the trust or agreement is unenforceable because of the Statute of Frauds, and the transferee refused to perform the trust or agreement, he holds the interest upon a constructive trust for the transferor, if [Emphasis Added]
“(a) the transfer was procured by fraud, misrepresentation, duress, undue influence or mistake of such a character that the transferor is entitled to restitution, or [Emphasis Added]
“(b) the transferee at the time of the transfer was in a confidential relation to the transferor .

“Comment on Clause (b):

“c. Where transferee is in a confidential relation to transferor. Where the owner of an interest in land transfers it to another who orally agrees to hold it in trust for the transferor or to reconvey it to the transferor, and the transferee at the time of the transfer was in a confidential relation to the transferor, the transferee will not be permitted to keep the land but will be compelled to hold it upon a constructive trust for the trans-feror, since otherwise he would be unjustly enriched. A constructive trust will be imposed even though at the time of the transfer the transferee intended to perform the agreement, and even though he was not guilty of undue influence or other abuse of his confidential relation to the transferor in procuring the transfer. [Emphasis Added]
“If the transferee at the time of the transfer was in a confidential relation to the transferor, a constructive trust will be imposed even though the transferee was not guilty of an abuse of the confidential relation in retaining the land. Thus, if the transferee dies intestate without having repudiated his promise but intending always to perform it, his heir will be compelled to hold the property upon a constructive trust for the trans-feror. A court of equity will not permit the unjust enrichment of the heir. [Emphasis Added] (See Restatement of Trusts, § 44, Comment e.)
“A confidential relation exists not only where there is a fiduciary relation such as that between attorney and client, trustee and beneficiary, guardian and ward, partner and partner, and the like, but also where, because of family relationship or otherwise, the transferor is in fact accustomed to be guided by the judgment or advice of the transferee or is justified in placing confidence in the belief that the transferee will act in the interest of the transferor. [Emphasis Added] . . .”

Although not always easily distinguished, both resulting and constructive trusts have been recognized in Alabama. Cone v. Cone, 331 So.2d 656 (Ala.1976); Sims v. Reinert, 285 Ala. 658, 235 So.2d 802 (1970); and Putnam v. Putnam, 274 Ala. 472, 150 So.2d 209 (1963). In 76 Am.Jur.2d, Trusts, § 222, the following appears:

“A constructive trust is substantially an appropriate remedy against unjust enrichment. It is raised by equity in respect of property which has been acquired by fraud, or where, although acquired originally without fraud, it is against equity that it should be retained by the person holding it. . . . ”

These principles seem particularly applicable in this case. The trial court found, and the evidence supports its finding:

“ . . James L. Adkins, was at one time the absolute owner of the property described in Plaintiff’s Petition seeking to sale [sic, sell] said property for division. James L. Adkins transferred this property to his mother, Minnie Adkins Miller, without any monetary consideration in order that as long as Minnie Adkins Miller lived she would have a home in which to reside. The Court further finds that Minnie Adkins Miller promised to reconvey the property to James L. Adkins either during her lifetime or she would devise the said property to him in her Last Will and Testament.
“It is clear from the evidence that Minnie Adkins Miller never claimed ownership to the property but recognized that she held the said property in trust for her son, James L. Adkins, and further that she had promised to reconvey the property to him.
“There is also no question that James L. Adkins was very close to his mother and assumed the major portion of the financial burden of taking care of her during the last few years of her life.
“Therefore, the Court is of the opinion that a confidential relationship existed between Minnie Adkins Miller and James L. Adkins which was the primary motivation of James L. Adkins deeding the property to her.”

The appellant contends that, without evidence that the grantee in deed, Mrs. Miller, grantor’s mother, procured the deed by undue influence or fraud or that her will dominated that of her son, the court erred in imposing a trust in favor of the appellee. Although a constructive trust may result from actual or constructive fraud, these elements are not strictly essential prerequisites to the imposition of a constructive trust. A constructive trust will also be imposed upon property whenever the circumstances under which it was acquired make it inequitable that it should be retained by the holder of legal title provided some confidential relationship exists between the grantor and grantee; and provided the imposition of a trust is necessary to prevent a failure of justice. “ . However, actual or intentional fraud is not an essential element of a constructive trust a constructive trust may be imposed to prevent unjust enrichment, without regard to actual fraud . . . ” 89 C.J.S. Trusts § 139.

The appellant in this case is correct in her contention that there was no evidence that her mother procured the transfer of the property by her son through fraud or undue influence. She concedes, however, that the evidence establishes that the property was conveyed to her mother by her son (appellant’s half brother) without consideration; and that her mother agreed to reconvey it to him, either by deed or will.

“Where property is conveyed to [a] person on his oral promise to hold it and later reconvey it . and at [the] time of conveyance he stands in a confidential relationship to [the grantor] . a court of equity will not allow him to keep [the] property and be unjustly enriched, but will compel him to transfer title to [the] parties equitably entitled to it even though he may have intended at [the] time of conveyance to carry out [the] agreement, and even though he was not guilty of fraud, undue influence, or any other abuse of confidential relationship in procuring [the] conveyance.” (Emphasis Added) 89 C.J.S. Trusts § 149, n. 24;

Citing: Carter v. Abramo, 201 Md. 339, 93 A.2d 546 (1953); Adcock v. Merchants & Mfrs. Bank of Ellisville, 207 Miss. 448, 42 So.2d 427 (1949); Opp v. Boggs, 121 Mont. 131, 193 P.2d 379 (1948); Rice v. Rice, 184 Md. 403, 41 A.2d 371 (1945); Grimes v. Grimes, 184 Md. 59, 40 A.2d 58 (1944); Jaeger v. Sechser, 65 S.D. 38, 270 N.W. 531 (1936).

This rule was applied in Airola v. Gorham, 56 Cal.App.2d 42, 133 P.2d 78 (1942), which, like this case, involved a conveyance between a mother and son.

We, therefore, cannot agree with the appellant that the evidence fails to support the trial court’s finding that a constructive trust existed in favor of James L. Adkins.

The appellant also argues that the trial court is due to be reversed because the evidence shows that James L. Adkins comes into court seeking relief with “unclean hands.” We cannot accept this argument. The appellant bases this argument on testimony that, at the time of the conveyance of the property to his mother, James Louis was engaged in some financial transactions, the success or failure of which was then unknown. However, there was no evidence that any creditor had any claim against him at the time of the conveyance of the property, and the evidence was that no claim by any creditor was, in fact, ever asserted against him. There is simply no evidence to support the argument that the conveyance was made to defraud creditors. The only evidence bearing on this assertion was the testimony of Adkins and his wife that they wanted his mother to have a place to live regardless of his financial future.

The final argument advanced on appeal is that the trial court erred in allowing certain witnesses to testify as to statements made by the deceased, Minnie Adkins Miller, because such testimony was forbidden by § 12-21-163, Code 1975, or the so-called Dead Man Statute. Without elaboration, suffice it to say that there was evidence offered by several witnesses, none of whom had any pecuniary interest in the result of the litigation, which established that the decedent, on many occasions, told them that the property belonged to James Louis and she was only being allowed by him to live on it until she died. She had agreed to reconvey it to him by deed or will. Having no pecuniary interest in the litigation, these witnesses were competent to testify. Watson v. Watson, 283 Ala. 214, 215 So.2d 290 (1968); Taylor v. First National Bank of Tuskaloosa, 279 Ala. 624, 189 So.2d 141 (1966); and Meyers v. Meyers, 141 Ala. 343, 37 So. 451 (1904).

AFFIRMED.

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


author: BRADLEY, Judge.

text:
    Patricia Ann CREWS v. State of Alabama, HOUSTON COUNTY DEPARTMENT OF PENSIONS AND SECURITY.
    Civ. 1009.
    Court of Civil Appeals of Alabama.
    March 8, 1978.
    Rehearing Denied April 12, 1978.

      Michael Crespi, Headland, for appellant.
    William J. Baxley, Atty. Gen. and Mary Lee Stapp, Jamie L. Pettigrew, Asst. Attys. Gen., for appellee.
   BRADLEY, Judge.

This appeal results from an order by the Circuit Court of Houston County terminating the parental rights of appellant, Patricia Crews, and awarding permanent custody of her infant son to the appellee, the Alabama Department of Pensions and Security.

The infant son who was the object of the dispute out of which this appeal arose was born in September of 1975. At the time of the child’s birth, appellant was unmarried and a minor. Approximately six months after the child was born, the Department of Pensions and Security obtained temporary custody of him. A hearing was subsequently held to determine whether the parental rights of the child’s mother should be terminated and the child placed in the permanent care of the Department of Pensions and Security. After the presentation of evidence by all the parties involved, the trial court ordered that the child be made a permanent ward of the Department of Pensions and Security. From the trial court’s judgment appellant brings this appeal.

Our initial concern on this appeal is the appellant’s contention that the judgment of the trial court was contrary to the great weight of evidence presented at trial. However, a careful examination of the record reveals that the court’s judgment was amply supported by the testimony and evidence which was offered during the hearing on this matter. Indeed, the court specifically found:

. . that said mother is only 17 years of age and has been adjudicated a delinquent child and committed to the Department of Youth Services, Chalkville Campus and that neither said mother nor the said reputed father can make suitable plans for the proper care of said child, presently and in the future.”

Since the trial court heard the oral ‘testimony of the witnesses and observed their demeanor its judgment is entitled to a presumption of correctness. Accordingly, the trial court’s judgment in child custody cases will not be disturbed on appeal unless it is affirmatively shown from the record that the judgment rendered was unsupported by the evidence and therefore palpably in error. Smith v. State Department of Pensions and Security, Ala.Civ.App., 340 So.2d 34 (1976).

Moreover, the controlling consideration in child custody matters is the best interests of the child. And although a pri-ma facie right to the custody of a child exists on behalf of the child’s natural parent, this right is not absolute since it must yield to the superior criterion of the child’s welfare. Smith v. State Department of Pensions and Security, supra.

In order to determine if a change in the child’s custody is necessary to adequately protect the best interests of the child, a trial court may examine the conduct and activities of the parent as well as the environment, health and circumstances of the child. In the instant case the trial court heard evidence to the effect that appellant had been incarcerated in industrial schools on three occasions for delinquency. Additional testimony indicated that appellee made little effort to keep either the child or its surroundings clean. Moreover, the trial transcript demonstrates appellant was only seventeen years old at the time of the hearing and had neither the skill nor the education to properly support her illegitimate child. Indeed, appellant has only a seventh grade education.

Despite these facts appellant contends that she has “reformed” and that in the future she will have the means to properly care for the child. However, the record before us discloses that appellant’s “future prospects” in regard to the well-being of her child are rather shadowy. In fact, her ability to provide for the child’s welfare is apparently premised on the occurrence of two contingencies: (1) that she marry a man with whom she lived prior to the custody hearing and who earns approximately $10,000 a year; and (2) that the man who is reputed to be the father of the child give her approximately $116 a month for the child’s support. Nevertheless, while evidence which supported the potential occurrence of these events was certainly relevant to the trial court’s inquiry into the right of the appellant to obtain custody of her child, we are not persuaded that such evidence demonstrates that the judgment of the trial court was contrary to the great weight of evidence. Indeed, the judgment of the trial court was supported by a substantial evi-dentiary showing that appellant could not provide for the child’s ordinary comfort and contentment nor for its intellectual and moral development. See Long v. O’Mary, 270 Ala. 99, 116 So.2d 563 (1959).

The second issue which warrants our attention on this appeal deals with the adequacy of the legal representation rendered on appellant’s behalf during the custody proceeding. Appellant argues that the attorney who was appointed to represent her as guardian ad litem did not protect her interests in two respects. First, appellant claims that her attorney tried the case without the preparation necessary to render effective assistance; that is, the lawyer who acted on her behalf did so after only a brief interview with appellant prior to the hearing. Second, appellant contends her attorney failed to vigorously represent her interests by not asserting that Title 13, section 350, et seq., Code of Alabama 1940 (Recomp.1958) (providing the procedures for terminating parental rights) was unconstitutional. We find no merit to either of these contentions.

After the court’s judgment awarding custody of the child to the Department of Pensions and Security, the court appointed a new attorney to represent appellant. And at a hearing on appellant’s motion for a new trial, her newly obtained counsel questioned the court appointed attorney who acted in appellant’s behalf during the custody proceeding. The transcript of the hearing on the motion for a new trial indicates that appellant’s initial court appointed lawyer had represented appellant on at least two earlier occasions when the latter had been charged with delinquency. In addition, her court appointed attorney stated that he had read a Department of Pensions and Security report on the matter before arriving at the courthouse and that he had also discussed the case with appellant’s probation officer prior to the trial. Moreover, the court appointed counsel testified that he interviewed appellant before the proceedings began and that from this interview and his earlier dealings with appellant he was aware of the history and circumstances of the case. Finally, he stated that nothing was brought out at trial which surprised him and that he had presented to the court all the evidence which he deemed favorable to his client.

On the basis of the facts set out above we are unable to say that appellant was denied effective assistance of counsel. In instances where a significant right or liberty is threatened a party is entitled to the safeguards and protection provided by procedural due process. And in view of the fact that the preservation of the family unit is zealously guarded by the courts, May v. Anderson, 345 U.S. 528, 73 S.Ct. 840, 97 L.Ed. 1221 (1953), individuals seeking to maintain family integrity are accorded strong protection from interference by the state. In re Welfare of Luscier, 84 Wash.2d 135, 524 P.2d 906 (1974). See Quilloin v. Walcott, - U.S. -, 98 S.Ct. 549, 54 L.Ed.2d 511 (1978). Consequently, the fundamental nature of parental rights is protected by the constitutional guarantees of due process under the fourteenth amendment. U.S.C.A.Const. Amend. 14. See Ex parte White, 245 Ala. 212, 16 So.2d 500 (1944); Thorne v. Thorne, Ala.Civ.App., 344 So.2d 165 (1977).

Moreover, procedural due process contemplates the basic requirements of a fair proceeding including an impartial hearing before a legally constituted court; an opportunity to present evidence and arguments; information regarding the claims of the opposing party; a reasonable opportunity to controvert the opposition’s claims; and representation by counsel if it is desired. See Danford v. Dupree, 272 Ala. 517, 132 So.2d 734 (1961); Almon v. Morgan County, 245 Ala. 241, 16 So.2d 511 (1944); Thorne v. Thorne, supra; In re Welfare of Luscier, supra. Thus, the safeguards man dated by due process entitled a parent to the right of counsel in a permanent child deprivation proceeding. In re Welfare of Luscier, supra. And inherent to a parent’s right to legal representation in a deprivation hearing is the right to effective assistance of counsel. However, effective assistance of counsel does not require that a lawyer be infallible. See Taylor v. State, 291 Ala. 756, 287 So.2d 901 (1973).

It is the general rule that relief from a court’s judgment will not be granted on the ground of incompetence or ineffective counsel merely because his opinion of appropriate trial tactics differs from the opinion of another attorney. E. g., Lynn v. Lynn, 4 Wash.App. 171, 480 P.2d 789 (1971). Instead, the test in eases of this type is whether an examination of the entire record demonstrates that the complaining party was afforded a fair trial. Lynn v. Lynn, supra.

From the facts disclosed in the record before us we are not persuaded that the pre-trial preparation and actual efforts of appellant’s appointed counsel during the trial were so inept as to deny appellant a fair hearing. Nor are we prepared to say that the competence and efficiency of the attorney who represented appellant at the child deprivation hearing was so minimal that appellant was deprived of effective assistance of counsel.

The final issue presented for our review concerns appellant’s assertion that Title 13, section 350, et seq., Code of Alabama 1940 (Recomp.1958) is unconstitutional in that the statutory provisions dealing with child deprivation proceedings are in violation of the due process clause of the fourteenth amendment.

The law in Alabama is well-settled that constitutional issues not raised in the court below will not be considered for the first time on appeal. Smith v. State Department of Pensions and Security, supra; Gamble v. Gamble, 53 Ala.App. 168, 298 So.2d 254 (1974). In the present case appellant raised the constitutionality of the child deprivation statute in her motion for new trial. However, this court will not consider an issue as to the constitutionality of a statute where such issue is raised for the first time in a motion for new trial. Dale v. Dale, 54 Ala.App. 505, 310 So.2d 225 (1975). Nonetheless, in Smith v. State Department of Pensions and Security, supra, this court refused to declare the child deprivation statute unconstitutional.

Despite the applicability of these principles to the instant ease, appellant argues that the constitutional issue was not raised at trial due to the ineffectiveness of appellant’s counsel. Thus we must note that regardless of the purported reason for the failure to properly preserve an issue involving the constitutionality of a statute for consideration on appeal, we will not decide a constitutional issue which has not been presented to the trial court prior to a motion for new trial unless unusual circumstances require that we consider the matter. See Rule 4, ARAP and committee comments thereto. The normal procedure for obtaining relief in such situations is by means of a Rule 60(b) motion. Rule 60(b), ARCP. See Barnes v. Kent, 292 Ala. 508, 296 So.2d 881 (1974); Barnes v. Kent, Ala., 350 So.2d 437 (1977).

The trial court’s judgment was not in error and is therefore affirmed.

AFFIRMED.

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

      . This case was tried prior to the adoption of the 1975 Alabama Code.


author: EMBRY, Justice.

text:
    Ex parte Patricia Ann CREWS.
    77-480.
    Supreme Court of Alabama.
    May 19, 1978.
   EMBRY, Justice.

WRIT DENIED.

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


author: HOLMES, Judge.

text:
    William M. CRAWLEY v. Virginia R. CRAWLEY.
    Civ. 1354.
    Court of Civil Appeals of Alabama.
    March 8, 1978.
    Rehearing Denied April 5, 1978.
    Lawrence B. Voit, Mobile, Irving Silver, Mobile, for appellant.

      Edward B. McDermott, of McDermott, Deas & Boone, Mobile, for appellee.
   HOLMES, Judge.

This is an appeal from the Circuit Court of Mobile County’s action refusing to dismiss a writ of garnishment. We reverse.

The pertinent facts reveal the following: The parties were divorced in 1974. The decree of divorce provided as follows:

“1. That the Defendant shall convey to the Plaintiff all of his right, title and interest in and to the jointly owned homeplace, located at 3878 Shelley Drive, Mobile, Alabama, and the Defendant shall pay the house notes on said property as alimony in gross, .
“4. That the Plaintiff waives her right to claim any further alimony for herself and she shall pay her own attorney’s fee and the court costs incurred in this proceeding.”

The husband is a retired railroad employee and receives a retirement disability annuity. This annuity is paid by the Railroad Retirement Board, an agency of the United States Government. The husband did not make the required “house notes” as mandated by the divorce decree. The wife garnished the annuity payment. The husband moved to dismiss the garnishment, etc. The trial court denied the motion to dismiss. Hence, this appeal.

The husband in brief contends that the federal government is immune from garnishment. He further contends that 42 U.S.C.A. § 659 which waives the immunity of the United States from suit or legal process to enforce a legal obligation to provide child support or make alimony payments is inapplicable in this instance.

42 U.S.C.A. § 659 provides as follows:

“Notwithstanding any other provision of law, effective January 1, 1975, moneys (the entitlement to which is based upon remuneration for employment) due from, or payable by, the United States (including any agency or instrumentality thereof and any wholly owned Federal corporation) to any individual, including members of the armed services, shall be subject, in like manner and to the same extent as if the United States were a private person, to legal process brought for the enforcement, against such individual of his legal obligations to provide child support or make alimony payments.”

The husband specifically argues that the award in this instance is an award of alimony in gross (property division, etc.) and therefore not within the contemplation of 42 U.S.C.A. § 659.

At the outset, this court must first determine if the award, as shown above, is in fact alimony in gross as defined by the appellate courts of Alabama. We would note at this juncture that no testimony was presented to the trial court. The determination of whether the award is alimony in gross must be made from the decree itself.

It is clear that the trial court in the original decree of divorce called the award “alimony in gross.” It is also clear that the award fits the definition of alimony in gross as defined by the Supreme Court of Alabama in Hager v. Hager, 293 Ala. 47, 299 So.2d 743, on remand 53 Ala.App. 740, 299 So.2d 751 (1974). There, the supreme court defined an award of alimony in gross as being an award to the wife as compensation for the wife’s inchoate marital rights, and/or a division of the fruits of the marriage. We would further note that the requirements for the award to be one of alimony in gross have been met, to wit, the amount and time of payment are certain and the rights to it are vested and not subject to modification. See Williams v. Williams, 261 Ala. 328, 74 So.2d 582 (1954); Epps v. Epps, 218 Ala. 667, 120 So. 150 (1929). Conversely, the award does not fit the definition of periodic or permanent alimony. See Thompson v. Thompson, 282 Ala. 248, 210 So.2d 808 (1968).

In view of the above, we conclude that the award to the wife is in fact an award of alimony in gross as defined by the Supreme Court of Alabama in Hager, su pra. Having so determined, we must now address ourselves to the inquiry of whether or not 42 U.S.C.A. § 659 waives the immunity from garnishment of the husband’s annuity. Put another way, is the award of alimony in gross, as defined above, the alimony provided for by 42 U.S.C.A. § 659. We find it is not.

In 42 U.S.C.A. § 662, we find the following definition:

“For purposes of section 659 of this title—
“(c) The term ‘alimony’, when used in reference to the legal obligations of an individual to provide the same, means periodic payments of funds for the support and maintenance of the spouse (or former spouse) of such individual, and (subject to and in accordance with State law) includes but is not limited to, separate maintenance, alimony pendente lite, maintenance, and spousal support; such term also includes attorney’s fees, interest, and court costs when and to the extent that the same are expressly made recoverable as such pursuant to a decree, order, or judgment issued in accordance with applicable State law by a court of competent jurisdiction. Such term does not include any payment or transfer of property or its value by an individual to his spouse or former spouse in compliance with any community property settlement, equitable distribution of property, or other division of property between spouses or former spouses.” [Emphasis supplied.]

The last sentence of § 662, to this court, clearly reveals that alimony in gross, as defined by our courts, was not intended to be the type of alimony as provided for in § 659. Put another way, the intent of § 659 is to assist in the collection of periodic alimony as defined by the appellate courts of Alabama. It is not a vehicle to be used in the enforcement of alimony in gross, as defined above. Of like import, see Kelley v. Kelley, 425 F.Supp. 181 (W.D.La.1977); Marin v. Hatfield, 546 F.2d 1230 (5th Cir.1977).

In view of the above, the judgment of the trial court is reversed and the case remanded for entry of a judgment not inconsistent with this opinion.

Able counsel for the appellee has requested a fee for representing the wife on this appeal. It is not the general policy of this court to award a fee to the nonprevail-ing party. However, in view of the well written briefs, the novel question presented to this court, and the background of the case, as indicated above, we chose in this instance to exercise our discretion and award the attorney for the wife a $350 attorney fee.

REVERSED AND REMANDED WITH DIRECTIONS.

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


author: FAULKNER, Justice.

text:
    Ex parte Virginia R. CRAWLEY.
    77-468.
    Supreme Court of Alabama.
    May 19, 1978.
   FAULKNER, Justice.

WRIT DENIED.

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


text:
    Patricia Donzell WEED v. Jerry Horace WEED.
    Civ. 1377.
    Court of Civil Appeals of Alabama.
    March 8, 1978.
    Rehearing Denied April 5, 1978.
    J. Fletcher Jones, Andalusia, for appellant.
    No brief for appellee.
   HOLMES, Judge.

This is a divorce case.

The Circuit Court of Covington County divorced the parties, made a division of property, ordered child support, and provided for visitation by the husband with the children.

The wife appeals, contending that the trial court abused its discretion in the division of property, the award of support, certain aspects regarding visitation, and its failure to award the attorney for the wife a fee. We disagree and affirm.

We do not deem it necessary to give a detailed recitation of the facts. The following is sufficient.

The parties have been married for approximately ten years. They have two minor children. Both have worked a majority of their married life. They both earn approximately the same pay. The “take home” pay of each is about $500 per month. They have accumulated very little in the way of material goods.' Specifically, our view of the record, in pertinent part, reveals they own two automotive vehicles, a ten year old mobile home, and apparently normal household furnishings. In addition, they had certain joint debts.

With the above in mind, the trial court required the husband to pay $75 per month child support. He allowed each party to retain a vehicle. He allowed the husband to retain the mobile home. We would note at this point that there is absolutely no testimony regarding the value and/or condition of the mobile home or trailer, as it is referred to in the record. Additionally, the husband was required to pay all of the debts incurred by the parties. The wife was awarded the washer and dryer and the husband other-household furnishings.

In addition to normal visitation rights, the following is found in the trial court’s decree:

“(2) In the event Cecil McDuffie visits Defendant, Patricia Donzell Weed, whether the purpose of such visit be business or social, the Defendant, Patricia Donzell Weed,-is to deliver said children to Plaintiff prior to said visit and said children shall remain with Plaintiff or Plaintiffs grandparents (Bryan) until the following morning. A violation of this condition will support a petition for change of custody of the minor children born to the marriage of these parties.”

No provision was made for an award of an attorney’s fee.

As indicated above, the wife contends the trial court erred to reversible error in its division of property, the amount of child support, the above mentioned provision concerning visitation, and in failing to make an award of an attorney’s fee.

This court reviews a judgment by a trial court in divorce cases with a presumption of correctness in any case where that court has heard the testimony and viewed the witnesses. Meyers v. Meyers, 55 Ala.App. 697, 318 So.2d 725 (1975). The rationale for this rule — commonly called the ore tenus rule — is this court’s awareness of the fact that the trial court is in a better position to make decisions regarding awards of alimony, child support, and property division than an appellate court. Accordingly, we will not reverse a trial court’s determination in such matters unless the complaining party demonstrates from the record before this court that the trial court palpably abused its discretion. And, in this instance, we are not prepared to hold that the judgment rendered by the trial court relating to the division of property and amount of child support was palpably in error. Novak v. Novak, Ala.Civ.App., 339 So.2d 77 (1976); Segars v. Segars, Ala.Civ.App., 334 So.2d 684 (1976).

We should not be understood as necessarily finding that this court would have made the award of child support and division of property just as the trial court did. However, it is not our function to substitute our judgment for that of the trial court. See Sutton v. Sutton, 55 Ala.App. 254, 314 So.2d 707 (1975).

Furthermore, the allowance of an attorney’s fee in a divorce case is within the sound discretion of the trial court. Huggins v. Huggins, Ala.Civ.App., 331 So.2d 704 (1976). Here, in this instance, we cannot say the trial court abused its discretion. This is especially true in view of the parties’ respective incomes.

Additionally, we find no reversible error in the trial court’s decree regarding visitation; specifically, that portion quoted above.

The husband charged the wife with adultery with one Cecil McDuffie. However, we would point out that this was not proved and the divorce was granted on the wife’s complaint alleging incompatibility. However, suffice it to say, there was testimony that the wife visited Mr. McDuffie prior to the divorce. In effect, the trial court has simply granted to the husband additional visitation rights when the wife chooses to be with Mr. McDuffie. The following from Skipper v. Skipper, 280 Ala. 506, 508, 195 So.2d 797, 799 (1967), is appropriate and dispositive of this issue:

“Much discretion is left with the trial court in the settlement of visitation rights between the parents. In determining the propriety of the decree regarding visitation rights of a divorced parent, each case must be decided on its own peculiar facts and personalities involved. The personal contact of the trial court with the litigants and the witnesses gives the trial court an opportunity for personal observation which we do not have, and which accounts for the presumption we accord its decrees. Mockridge v. Mockridge, 278 Ala. 79, 197 So.2d 772; .

See also 8 Ala. Dig. Divorce <®=296 and 299.

We would comment that the judge’s pronouncement that, “A violation of this condition will support a petition for change of custody . . . is merely surplusage, as many matters might “support” a petition. The actual change of custody is an entirely different matter and involves numerous factors, the least of which is not the best interest of the child or children.

The case is due to be affirmed.

AFFIRMED.

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


author: BLOODWORTH, Justice.

text:
    Ex parte Patricia Donzell WEED.
    77-470.
    Supreme Court of Alabama.
    May 19, 1978.
   BLOODWORTH, Justice.

WRIT DENIED.

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