author: BEER, Judge. LEMMON, Judge

text:
    Brenton T. MORSE, Jr. v. J. RAY McDERMOTT & COMPANY, INC., et al.
    No. 6879.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 16, 1976.
    Rehearing Denied April 13, 1976.
    Dissenting Opinion April 26, 1976.
    Writ Granted June 2, 1976.
    Joseph S. Russo, New Orleans, for plaintiff-appellant.

      Jones, Walker, Waechter, Poitevent, Carrere & Denegre, Herschel L. Abbott, Jr., New Orleans, for defendants-appellees.
    Before REDMANN, LEMMON, BOU-TALL, MORIAL and BEER, JJ.
   BEER, Judge.

Plaintiff, Brenton T. Morse, Jr. (hereafter, Morse) has appealed from a judgment denying his claim against his former employer, J. Ray McDermott, Inc. (hereafter, McDermott) for installment payments of several “supplemental compensation awards” made during the period of his employment and for recognition of his right to retirement benefits.

Morse was employed by McDermott from June 1, 1958 until April 7, 1970, at which time he was terminated because of an economic downturn. The termination was in no way related to any misconduct, incompetence or willful neglect on plaintiff’s part. At the time there was no formal contract of employment between Morse and McDermott.

The “Supplemental Compensation Plan” was unilaterally adopted by McDermott in 1966 to reward, annually, certain managerial employees who contributed to the company’s increased productivity and income during the year. The plan was entirely funded by McDermott. There was no fiscal contribution — in any form whatever— by the employees.

In 1966 and each year thereafter a committee administering the plan made awards (designated as “current awards”) of a percentage of the company’s income to certain employees, including Morse. The plan stipulated that the awards were payable on the following terms and conditions:

“(1) A Current Award is made payable in five equal installments, 20% of the award to be paid to the Eligible Employee within thirty (30) days of the Committee’s determination of the amount awarded to him pursuant to paragraph (b) of this section, and an additional 20% thereof to be paid on July 15 of each of the four succeeding calendar years; provided that (i) said Employee has been in the continuous employ of the Company or any of its Subsidiaries up to each such July 15 date, or (ii) at the time his employment shall have terminated prior to the last of such July 15 dates, the Committee, in its discretion, shall have waived such requirement of continuous employment, or (iii) his employment has terminated before the last of such July 15 dates as a result of death, disability or retirement (other than early retirement) under the Retirement Plan. In the event that his employment terminates under any other circumstances prior to receipt of the total amount of his award, the Elibible [sic] Employee shall forfeit all unpaid portions of said award.”

Thus it can be seen that the plan provided incentive to key employees by a sharing of increased income and further sought to induce these employees to remain with the company in order to continue reaping the benefits of the plan. Clearly, the requirement that employees who merited an award for a particular year remain with the company for an additional four years in order to receive the full amount awarded was an inducement to continued employment.

Morse contends that although the plan contemplated that an employee would forfeit unpaid installments if he voluntarily left the company or was terminated for cause, it should not be so interpreted in his case since he was involuntarily terminated; his non-willful failure to fulfill the plan’s requirements should not result in forfeiture of the yet unpaid installments which were already “earned.”

On the other hand, McDermott contends that since the employees neither paid any funds into the Supplemental Compensation Plan nor collectively bargained for any of the compensation payable under the plan, the payments under the plan were gratuities on its part, and employees whose services were terminated for any reason whatsoever were not entitled to unpaid installments. They point out that an essential condition for continued payment under the plan was that Morse remain in Mc-Dermott’s employment. They essentially acknowledge that Morse was ready and willing to remain but was prevented from fulfilling the condition of continued employment by reason of the economic downturn which caused the reduction in force of McDermott employees including Morse.

Even if McDermott had discharged Morse without cause, the parties would be bound by the unequivocal terms of the plan. As noted by the able trial judge, the plan itself must be the law between the parties and, absent a need for judicial interpretation, must be followed as written.

Since the plan is clear with respect to the issue that now confronts us, we feel judicially restrained from reforming it— even though equitable considerations for doing so may exist. The claim for the unpaid installments of the Supplemental Compensation Awards must be denied.

During his employment plaintiff was covered by a non-contributory retirement plan, which provided in pertinent part:

“ ‘Early Retirement Date’ means the first day of the month coincident with or next following the date of retirement of a Participant who retires under the provisions of Section 2.2 hereof prior to his Normal Retirement Date and on or subsequent to the date as of which he has both:
“(a) completed 15 years of Credited Service; and
“(b) attained the age of:
“(i) 55 years for a Participant who has not completed at least 60 months of Service in a Hardship area and who is not an aircraft pilot ; or
“(ii) 50 years for an aircraft pilot ; or
“(iii) the age one month in advance of age 55 years for each month of Service which is in excess of 60 which was completed in a Hardship Area for a Participant who is not an aircraft pilot and who has completed at least 60 months of Service in a Hardship Area; provided, however, such age shall not be less than 50 years.”

Morse contends that he is entitled to early retirement benefits, by computing “eleven and one-half of (lli/á) years of regular employment plus 60i/£ months for employment in hardship areas, for which period his regular employment time is increased, making his total employment for purpose of the retirement plan I61/2 years.” But this is not within the provisions of the plan.

The plan clearly required both that the employee complete 15 years of service and that he attain a certain age in order to be eligible for early retirement benefits. The age requirement could be reduced on account of service in hardship areas but inasmuch as Morse did not complete 15 years of service he was not eligible, at any event, for early retirement benefits.

The plan also provided (Section 2.5) for benefits on termination of service at an earlier age, but that provision also required 15 years of service. Furthermore, Section 2.5 specifically provided (with exceptions as to disability or death) that:

. . the Participant whose service is terminated prior to the date as of which he has both attained the age of 45 years and completed 15 years of Credited Service shall not be entitled to any benefit under the Plan whatever.”

Finally, Morse contends that McDermott could not offer to pay vested retirement benefits if he completed IS years of service and then effectively revoke that offer by terminating him after he had completed almost 12 years of performance in response to the offer.

However, McDermott had no obligation to Morse to continue his employment beyond the date of his termination and the terms of the retirement plan clearly provided that Morse had absolutely no vested right to retirement benefits until he completed 15 years of service.

Since the plan is, again, clear with respect to this issue we must, again, exercise judicial restraint in reforming it — even though equitable considerations for doing so may exist.

Accordingly, the judgment of the trial court is affirmed. Plaintiff-appellant must bear the cost of this appeal.

AFFIRMED.

REDMANN, J., dissents.

LEMMON, JT., dissents with reasons.

LEMMON, Judge

(dissenting).

I disagree with the majority as to both of plaintiff’s demands for relief.

Supplemental Compensation Plan

The Supplemental Compensation Plan was not a gratuity, as McDermott contends, but rather was a contract from which the employee expected to receive stipulated monetary benefits, while the employer expected to receive the benefits derived from having more loyal and diligent employees, principally an increase in productivity and a reduction in labor turnover. Laffitte v. Laffitte, 232 So.2d 92 (La.App.)

I view this particular contract as follows : McDermott extended an offer, on an annual basis, to each of certain employees that if the company income in that year exceeded an amount calculated with reference to the amount of capital investment, McDermott agreed to place supplemental compensation for each of these employees in a reserve fund, from which part of the supplemental compensation was payable immediately and part was payable on the condition that the employee remain in company service for prescribed additional periods. The employees, although they made no promise and were not obliged to work for that year or for any specified period of time, accepted McDermott’s unilateral offer by completing performance of services during that entire year in an effort to increase company income for the year. McDermott’s resulting contractual obligation to pay supplemental compensation was supported by the same consideration given for its promise to pay wages.

Thus, when the employees’ services were fully rendered, McDermott became contractually obligated to make both immediate and installment payments as compensation for past performance, the obligation to make the installment payments being conditioned upon continued employment.

The condition was one imposed on the employee by the employer. If the employee fulfilled the condition, the employer was obligated to pay the installment payments; conversely, if the employee failed to fulfill the condition, the employer’s obligation was discharged.

Under such circumstances an obligor whose obligation is contingent upon fulfillment of a specified condition cannot defeat that obligation by preventing accomplishment of the condition.

George W. Garig Transfer v. Harris, 226 La. 117, 75 So.2d 28 (1954).

Because of plaintiff’s past performance, McDermott was obligated to pay installments to plaintiff each year until the total awards were paid. The only condition to McDermott’s obligation was that plaintiff remain in McDermott’s employment. Plaintiff was ready and willing to do so, but McDermott (the party bound to perform the obligation) prevented plaintiff from fulfilling the condition. Under these circumstances the condition is considered as fulfilled. C.C. art. 2040. Stated otherwise, the forfeiture provision of the plan, although clear and unambiguous in its language, is unenforceable under the circumstances of this case, where forfeiture resulted from nonperformance of a condition which the faultless plaintiff was deprived of any opportunity to perform.

In my opinion plaintiff is entitled to the unpaid portions of the total awards which McDermott had obligated itself to pay.

Retirement Plan

The typical retirement plan provides that the employee becomes eligible for membership after a stated period of time in the employer’s service (three years in this case). When the employee enters the plan, the employer begins making contributions into a fund on behalf of that particular employee in an amount determined by the employee’s salary, age, length of service and other factors. In some plans (not this one) the employee also makes contributions on a predetermined basis, and the employee’s contributions normally are recoverable whenever he terminates employment. However, the employer’s contributions and the benefits of the program are not payable until vesting occurs, at which time certain rights of the employee become nonforfeitable. In many plans vesting occurs in stages, with a larger percentage of the benefits vesting as length of service increases.

The United States Congress recently studied the problem presented when employees’ jobs are terminated after many years of service and the employees are denied benefits that have been placed for them in a fund for retirement purposes. Recognizing that the employer’s contributions on behalf of the employee were often in lieu of additional wages or other benefits, the Congressional committee observed that complete forfeiture of pension rights was often inequitable, particularly after a substantial period of service. 3 U.S.Cong. & Adm.News 74-41, p. 4719. Congress eventually adopted Pub.L. 93-406 (29 U.S.C. § 1053).

Although plaintiff’s termination occurred prior to adoption of this law, the fact remains in this case that this employer as part of the employment relationship made significant contributions to a retirement plan on behalf of this employee, contributions that the employee presumably would otherwise have received in wages or other benefits. Retirement benefits are essentially deferred compensation which is earned in increments during the course of employment. The employer’s contributions (minus portions attributable to administrative and other expenses) form part of the compensation for the employee’s labor.

This particular employee worked for a substantial period of time for this employer, induced at least to some extent by the promise of retirement benefits if he performed satisfactorily and refrained from leaving the company. He was then prevented from realizing this compensation for past performance by the unilateral action of the employer.

Admittedly, McDermott owned no obligation to plaintiff to continue his employment. Furthermore, the terms of the retirement plan clearly provided that plaintiff had no vested right to retirement benefits until he completed 15 years of service. Nevertheless, plaintiff, having worked satisfactorily for this substantial period of time in partial reliance on this promise and desiring to remain in the company’s employ, is entitled in my opinion to some portion of the benefits for which his employer made particular contributions in consideration for fully performed services.

Complete forfeiture of plaintiff’s pension rights because of involuntary termination without cause is contrary to contract law and to notions of basic fairness and justice. A retirement plan is a continuing offer by the employer to induce employees to remain in service, and the offer may be accepted by the employee’s continuing in service. 1A Corbin, Contracts § 153 (1963); Delaware Trust Co. v. Delaware Trust Co., 222 A.2d 320 (Del.Ch.) (1966). From the point of view of the employee, the forfeiture of his rights by early termination without fault on his part is the equivalent of loss of compensation for services already performed. On the other hand, when a longtime employee’s rights are forfeited, the employer (who has already received these services as partial consideration for retirement plan contributions) also receives (and is unjustly enriched to that extent) a reduction in future premium liability for the remaining covered employees. See Lucas v. Seagrave Corp., 277 F.Supp. 338 (D.Minn.1967); see also 15 Vill.L.Rev. 527, 556 (1970). Thus, the employer receives employee services, but in fact gets back the retirement contributions made as consideration for those services already performed.

I agree with the majority that the contractual language is clear and unambiguous. I simply disagree that courts should always and under all circumstances enforce contractual provisions, no matter how plain, without regard to the circumstances of the particular case. When courts begin to merely call balls and strikes, the age of computer justice has arrived.

      . Unpaid portions of awards forfeited under the plan were required to be credited to the reserve fund.

      . The committee had the right to waive the requirement of continued service.

      . I distinguish on the facts the questionable decision of this court in Alco-Columbia Paper Service, Inc. v. Nash, 273 So.2d 630 (La.App. 4th Cir. 1973), which involved a profit sharing plan with a forefeiture provision based on a condition of non-competition. In that case the application for certiorari was dismissed on joint motion.

      . See Inland Steel Co. v. NLRB, 170 F.2d 247 (7th Cir. 1948), cert. den. 336 U.S. 960, 69 S.Ct. 887, 93 L.Ed. 1112, in which the court concluded that pension costs are part of employment costs which are frequently substituted for direct cash.

      . Internal Revenue regulations governing qualified plans prohibit the employer from receiving a return of forfeited contributions in cash. However, since money is a fungible item, the employer who receives credit against future premium liability enjoys the equivalent benefit of a cash refund.


source: Caselaw Access Project

author: ALMON, Justice.

license: Public Domain

text:
    Owen Benson SPARKS v. Kelly Kirk MILLIGAN.
    SC 1192.
    Supreme Court of Alabama.
    April 2, 1976.
    See also 51 Ala.App. 444, 286 So.2d 849.
    Tompkins & Tompkins, Tuscumbia, for appellant.
    O’Bannon & Gonce, and Walker & Mus-grove, Florence, for appellee.
   ALMON, Justice.

This appeal involves one of two cases which arose from an automobile-truck collision which occurred on a public road in Colbert County. The cases were consolidated for trial.

The first case was styled Alabama Farm Bureau Mutual Casualty Insurance Company and Annie Sparks as Executrix of the estate of Elmore P. Sparks, deceased, v. Kelly Kirk Milligan and Kal Milligan Readymix Concrete Company, d/b/a Milli-gan Readymix Concrete Company. The complaint in that case claimed $1,500.00 in property damage against Kelly Kirk Milli-gan and Milligan Readymix Concrete Company, based on the alleged negligence of Kelly Kirk Milligan in the operation of a concrete truck. This case was revived in the name of Annie Sparks, as Executrix of the estate of Elmore P. Sparks, deceased, who died from causes unrelated to the automobile accident.

The other case was brought by appellee, Kelly Kirk Milligan and United States Fidelity and Guaranty Insurance Company, against appellant, Owen Benson Sparks. The complaint as amended contained a negligence and wanton count. Appellant interposed pleas of the general issue to both counts and a plea of contributory negligence to the negligence count.

In the first case the jury found for defendants Kelly Kirk Milligan et al. In the second, the jury found for plaintiffs-appel-lees Kelly Kirk Milligan et al. in the amount of $25,000.00. It is the judgment in the second case from which this appeal is taken.

The appellant, Owen Benson Sparks, was sixty-eight years old. He had no sight in his left eye and wore glasses for his right eye. Having lived in the neighborhood since 1915, he was familiar with the road where the collision occurred.

Appellant was driving a 1971 Ford automobile. His brother, Elmore P. Sparks, since deceased, owned the automobile and was riding on the right front seat.

Appellant testified that he was driving north on Allsboro Road at approximately 45 miles per hour. As he came over a hill, he saw an object in the highway about 70 yards ahead but could not distinguish what it was.

Appellee testified that on the day of the accident he had delivered a load of concrete to the John S. Harris residence. He then drove back onto the Allsboro Road and drove the concrete truck in a northerly direction for approximately 90 feet before pulling over to the right side of the road to rinse the wet concrete from the trough on the back of the truck.

Though in dispute, the evidence indicates that at least the left half of the truck remained on the paved portion of the highway.

Appellee was standing at the rear of the truck at the moment appellant was approaching. Appellant’s automobile struck appellee first and then collided with the rear of the truck. Appellant testified that he did not know what he hit until after the accident. He further testified that he did not see appellee until after the accident.

A licensed civil engineer testified on behalf of appellee, using a projection of the middle of the carport of the Harris residence as a base line, that fifty per cent of an object IF 1" high (the height of the truck) 90 feet north of the base line could be seen 776 feet south of the base line. Essentially, all of an object IF 1" high could be seen 500 feet south of the base line.

Following the accident, the investigating state trooper took appellant to the rear of the automobile he had been operating. Appellant could not read the numbers on the tag until he was 48 feet from the rear of the automobile.

Appellant argues that it was error for the trial court to allow the wanton count to be submitted to the jury.

This court defined wantonness in Griffin Lumber Co. v. Harper, 247 Ala. 616, 618, 25 So.2d 505, 506 (1946), as follows:

“Wantonness is the conscious doing of some act or omission of some duty under knowledge of existing conditions and conscious that from the doing of such act or omission of such duty injury will likely or probably result.”

In Jackson v. Cook, 275 Ala. 151, 155, 153 So.2d 229, 232 (1963), this court stated that

“[i]n considering the question of the sufficiency of the evidence of wantonness to be submitted to the jury, this court must accept the adduced evidence most favorable to the plaintiff as true, and indulge such reasonable inferences as the jury was free to draw from the evidence.”

Part of the evidence presented at trial was as follows:

1. Appellant was sixty-eight years old at the time of the trial.

2. Appellant was familiar with the road where the accident occurred, having lived in the vicinity since 1915.

3. Appellant had, on numerous occasions seen slow moving or stopped traffic on the road.

4. Appellant was blind in his left eye and required glasses for his right eye.

5. The accident occurred during the daytime on a clear day.

6. The concrete truck was 7' 11" in width and 1Y Y' in height.

7. A civil engineer testified that one-half of the truck could have been seen by appellant when his automobile was 776 feet from the truck and that the entire truck could have been seen when appellant’s automobile was 500 feet from the truck.

8. Appellant testified that he was not sure whether he slowed down or attempted to avoid the truck.

9. There was room for the automobile to go around the truck on the paved portion of the highway.

We are not persuaded that the wanton count was unsupported by the evidence.

Appellant next argues that the trial court erred in reading to the jury, as part of the oral charge, the last part of Tit. 36, § 25(a), Code of Alabama 1940, Recompiled 1958. Appellant submits that the court erred again in re-reading § 25(a) when the jury asked for additional instructions.

Tit. 36, § 25(a) provides that:

“No person shall park or leave standing any vehicle, whether attended or unattended, upon the paved or improved or main traveled portion of any highway, outside of a business or residence district, when it is practicable to park or leave such vehicle standing off of the paved or improved or main traveled portion of such highway; provided, in no event shall any person park or leave standing any vehicle, whether attended, or unattended, upon any highway unless a clear and unobstructed width of not less than fifteen feet upon the main traveled portion of said highway opposite such standing vehicle shall be left for free passage of other vehicles thereon, nor unless a clear view of such vehicle may be obtained from a distance of two hundred feet in each direction upon such highway.”

The second part of the statute (which begins after the semicolon) is considered a proviso. Campbell v. Jackson, 257 Ala. 618, 623, 60 So.2d 252, 256 (1952). “The proviso is operative only where it is impracticable to park or stop off the main traveled portion of the highway, and in nowise strikes out the requirement that the vehicle be left off the improved portion, if practicable.” Campbell v. Jackson, supra.

Appellant argues that only the first part of § 25(a) should have been given to the jury because under appellant’s construction of the evidence it was practicable for appellee Milligan to have left the concrete truck entirely off the paved portion of the highway.

We consider this argument somewhat hyper-technical. Clearly, the subject of the statute in toto deals with leaving vehicles on highways.

State Trooper Mitchell testified that the highway was approximately 22 feet wide. Thus, there is some question as to whether there remained 15 feet opposite the standing truck. If the jury had concluded that less than 15 feet remained, then certainly that fact would have tended to show negligence on the part of appellee and could have been favorable to appellant on his plea of contributory negligence. The trial judge may have very well had this in mind when he charged the entirety of § 25(a).

This argument of appellant dealing with the issue of contributory negligence of appellee must be predicated on the supposition that the jury made its award of damages on the theory of negligence rather than wantonness. We are not permitted to engage in this supposition. The jury returned a general verdict without reference to either count. With the record in this posture the verdict will be referred to either of the counts that are supported by the evidence. Thrasher v. Darnell, 275 Ala. 570, 156 So.2d 922; Super X Drugs of Alabama, Inc. v. Martz, 51 Ala.App. 370, 286 So.2d 47; Champion v. Gaines, 48 Ala.App. 484, 266 So.2d 150; Brush v. Rountree, 249 Ala. 567, 32 So.2d 246.

Moreover, the jury could have concluded that appellant’s negligence was the sole proximate cause of the injury. Liles v. Chafin, 35 Ala.App. 472,48 So.2d 75.

The judgment is due to be and is hereby affirmed.

AFFIRMED.

BLOODWORTH, MADDOX, FAULKNER and EMBRY, JT., concur.


author: EMBRY, Justice.

text:
    Robert E. MINTON, d/b/a Valley Paging v. ALABAMA PUBLIC SERVICE COMMISSION et al.
    SC 1431.
    Supreme Court of Alabama.
    April 2, 1976.
    William K. Martin and Robert S. Richard, Montgomery, for appellant.
    Sydney S. Smith and Joseph W. Smith, Phenix City, for Phenix Communications Co., Inc.

      Jerry L. Weidler and Carl L. Evans, Montgomery, for Alabama Public Service Commission.
   EMBRY, Justice.

The Case

This appeal is by Robert E. Minton d/b/a Valley Paging from judgment of the Circuit Court of Montgomery County which affirmed an Order of the Alabama Public Service Commission. The Order granted a Certificate of Public Convenience and Necessity to Phenix Communications Company, Inc. The Certificate authorized Phenix to operate a one-way signaling (paging) service and two-way communication service (by radio) in Russell County and a portion of Lee County. The Certificate is required by the Alabama Radio Utility Act. Code of Ala., Tit. 48, § 355(9) et seq. Minton filed a protest with APSC to the application of Phenix for the Certificate. He appealed to the Montgomery Circuit Court from the grant of it by filing complaint in that court per statute. It alleged the Order of APSC granting the Certificate was in violation of Code of Ala., Tit. 48, § 355(19), and unlawful.

We reverse.

The Issue

The sole issue presented for review determinative of the result on this appeal is: May Certificates of Convenience and Necessity be held by competing radio utilities entitling each to offer the same service, in the same area, when one held a grant of authority antecedent to another and there had been no determination that the holder of the prior grant had generated operation of Code of Ala., Tit. 48, § 355(19)? We answer in the negative.

Definitions

(A)“One-way” signaling can be described as one-way communication (by radio transmitter) to a radio receiver for the purpose of actuating a signaling device on such receiver or for communicating a message to such receiver.

(B) “Two-way” (radio) communication can be described as radio transmission to, by voice or signal, and reception by radio receiver of such voice or signal transmission and the converse of that process.

(C) “Primary basis,” for the purposes of this case, can be described as the priority allowed one-way signaling conducted on a “paging only” channel over a transmitter being utilized in a two-way communications operation.

(D) “Secondary basis,” for the purposes of this case, can be described as one-way signaling permitted over a transmitter being utilized in a two-way communications operation but which is prohibited while two-way communications are being conducted over the channel. Such signaling is, therefore, subordinate and secondary to two-way communications.

The Facts

The record contains evidence from which the following facts may be discerned :

In August 1971, Minton filed application with the Federal Communications Commission (FCC) for authority to conduct a one-way signaling service in Phenix City, Alabama. On 22 September 1971, Phenix protested that application. On 28 September 1971, the Alabama Radio Utility Act became law. On 1 March 1972, APSC granted Phenix authority for one-way signaling and two-way communication service. On 23 March 1972, the Certificate granting that authority was amended by APSC to limit one-way signaling by Phenix to conducting it “on a secondary basis only.” This was effected as a result of petition filed by Phenix.

On 9 August 1972, Minton was granted a Certificate of authority by APSC for one-way signaling (paging) on a primary basis. Phenix, which for several years had been operating a signaling (paging) service on a secondary basis, appealed from that grant to him by filing complaint in the Circuit Court of Montgomery County. That court affirmed the decision of APSC granting Minton the Certificate authorizing him to offer the radio utility service for which he had applied. Phenix took no appeal from that decision.

On 7 March 1973, Phenix filed an application seeking to be certificated by APSC for operation of a one-way signaling service on a primary basis in the area already being serviced by Minton. At the time of application by Phenix, Minton had some five customers using a total of fourteen paging devices.

The APSC held a hearing on Phenix’s application. Phenix presented testimony of two of its customers, already receiving secondary paging service. Their testimony indicated a willingness to accept primary paging service provided Phenix could offer such service. However, they were not willing to change to another radio utility to obtain the advantages of primary paging. They had been offered a primary paging service by Minton and had refused such service.

On 24 May 1974, after this hearing, an Order of APSC was entered granting the application and issuing Phenix a Certificate of authority to operate one-way signaling (paging) service. A portion of that Order made the following finding:

“* * * Protestant, Robert E. Min-ton d/b/a Valley Paging presently holds a Certificate of Public Convenience and Necessity to operate a one-way signaling service in the same area as that requested by Applicant. This Certificate was granted to Valley Paging on August 9, 1972, under Docket No. 16564.”

Minton was never given notice of, nor was he afforded, a hearing so that APSC might determine that he, who already held a Certificate as one for which Phenix was applying, was

“* * * (1) unwilling or unable to meet the reasonable needs of the public, and (2) that the person [Minton] operating the same [service] is unable to or refuses or neglects after hearing on reasonable notice to provide reasonably adequate service.” Code of Ala., Tit. 48, § 355(19).

The Decision

Code of Ala., Tit. 48, § 82, permits the trial court and this court to set aside an Order of APSC only if it finds (1) the Order was procured by fraud, or (2) the Order was based upon findings of fact contrary to the substantial weight of the evidence, or (3) appellant’s substantial rights were prejudiced by the Commission’s misapplication of the law to the facts. Alabama Public Service Commission v. Cooper Transfer Company, Inc., 295 Ala. 209, 326 So.2d 283; Alabama Public Service Commission v. Higginbotham, 256 Ala. 621, 56 So.2d 401.

In this case (1) and (2) have no area of applicability. Number (3) collides with the Order when the finding in that Order, to which we previously alluded, demonstrates that Phenix was certificated in spite of the Commission’s failure to comply with Tit. 48, § 355(19). That was the point at which Minton’s substantial rights were prejudiced by the grant to Phenix of its Certificate without applying § 355(19) to the proved fact; Minton’s then extant Certificate. The grant was, therefore, in direct violation of law. The trial court failed to reverse APSC for its error. We must.

The judgment of the Circuit Court of Montgomery County affirming the action of the Alabama Public Service Commission is hereby reversed as is the Order of that Commission granting Phenix Communications Company, Inc. its Certificate of Public Convenience and Necessity permitting operation by it of a one-way paging or signaling service on a primary basis. That Certificate is due to be revoked as improvidently granted.

REVERSED AND REMANDED.

HEFLIN, C. J., and BLOODWORTH, FAULKNER and ALMON, JJ-, concur.

      . Until 20 September 1972, no regulations had been promulgated by APSC making distinction between one-way signaling on a primary basis and that done on a secondary basis.


author: BLOODWORTH, Justice.

text:
    C. J. REHLING, Toxicologist for the State of Alabama v. Ida Lee CARR.
    SC 1534.
    Supreme Court of Alabama.
    April 2, 1976.
    William J. Baxley, Atty. Gen., and Randolph P. Reaves, Asst. Atty. Gen., for appellant.
    Jones & Monroe, Birmingham, for appel-lee.
    Brittin T. Coleman and Michael H. Mobbs, Birmingham, for amici curiae, Eual E. Mooney and Bobby Maness.
   BLOODWORTH, Justice.

This appeal presents for our review a summary judgment rendered by the Circuit Court of the Tenth Judicial Circuit granting appellee Carr certain injunctive relief.

The parties involved on this appeal are the appellee, Mrs. Ida Lee Carr, who sought the injunctive relief, and the appellant, the toxicologist, C. J. Rehling, one of the parties against whom the injunction was sought. An amicus curiae brief has also been submitted in support of the appeal by certain third parties who are the defendants in a wrongful death action instituted by Mrs. Carr, seeking to recover damages for the death of her husband.

Mrs. Carr’s husband was killed on June 4, 1975, when his automobile ran under the trailer of a tractor trailer truck. This collision caused a severe head injury to Mr. Carr, which apparently caused his death. Deputy County Coroner Parker, who was called to the scene of the collision, determined that Mr. Carr met his death as a result of injuries received in the accident. Mr. Carr’s body was removed to a local hospital where a further examination of the body was made and a blood sample was drawn from the deceased’s heart by Parker. Parker sent this blood sample to the State Toxicologist for an alcohol content analysis.

On June 16, 1975, Mrs. Carr’s bill for declaratory judgment and an injunction was filed naming as defendants Deputy Coroner Parker and State Toxicologist Rehling. The motion alleged that the blood sample was illegally obtained and that irreparable injury would occur if the sample were not immediately returned to Mrs. Carr. The preliminary injunction was granted without notice on the day of its filing.

After a hearing at which both defendants Parker and Rehling were represented, a final decree was rendered on August 5, 1975, granting summary judgment in favor of Mrs. Carr. The trial court ruled that Parker’s actions in taking the blood sample were unauthorized and that the submission of the blood sample to the State Toxicologist was also unauthorized. The decree ordered the return of the blood sample to Mrs. Carr and prohibited any public recording of the results of the blood sample tests.

Meanwhile, on July 15, 1975, Mrs. Carr filed suit against E. E. Mooney and B. Maness claiming damages in the amount of $300,000 for the wrongful death of Mrs. Carr’s husband. In their amicus curiae brief, Mooney and Maness allege that they had no notice of the injunction proceedings, until after the final decree was issued. They state that they did not learn of the injunction until December, 1975, when their attorneys, in the course of preparing for trial in the wrongful death action, requested information from the State Toxicologist’s office concerning the analysis of the blood sample taken from the deceased. Counsel for Mooney and Maness were then informed that the release of such information was prohibited by injunction. They maintain that evidence of the alcohol content of the blood of the deceased is extremely material to the issue of their liability in the wrongful death action.

On this appeal, State Toxicologist Rehl-ing argues that Mrs. Carr sought the injunction for the purpose of restricting Mooney’s and Maness’ access to the blood alcohol analysis of the deceased’s blood for purposes of their defense in the wrongful death action. Rehling contends that to obtain an injunction for the purpose of suppressing evidence of this nature constitutes an abuse of the judicial process, and constitutes an impermissible interference with a public officer’s exercise of duties within his discretion or judgment.

In response, appellee Carr contends that the coroner’s statutorily-conferred authority was exceeded by taking the blood sample. Appellee argues that the deceased’s fatal head injury made his cause of death obvious and, therefore that the blood analysis in this case was improper. Appellee contends that as the spouse of the deceased she is entitled to the custody of the body, and parts of the body, of her deceased husband.

There is no authority of which we are aware, or of which we have been advised, authorizing a coroner or deputy coroner to take a blood sample from a deceased as was done in this case.

Tit. 15, § 76, Code 1940, authorizes a coroner to impanel a coroner’s jury and to make inquiry of the facts and circumstances of the death of a person when he “has been informed that a person has been killed, or suddenly died under such circumstances as to afford a reasonable ground for belief that such death has been occasioned by the act of another by unlawful means, . . . .” This section does not authorize the taking of the blood sample by the deputy coroner in this case.

Tit. 36, § 154, Code 1940, as amended [Tit. 36, § 154, Code 1958, Recompiled] the “Implied Consent Law” states:

“(a) Any person who operates a motor vehicle upon the public highways of this state shall be deemed to have given his consent, subject to the provisions of this chapter, to a chemical test or tests of his blood, breath or urine for the purpose of determining the alcoholic content of his blood if lawfully arrested for any offense arising out of acts alleged to have been committed while the person was driving a motor vehicle on the public highways of this state while under the influence of intoxicating liquor.
“(b) Any person who is dead, unconscious or who is otherwise in a condition rendering him incapable of refusal, shall be deemed not to have withdrawn the consent provided by paragraph (a) of this section and the test or tests may be administered, subject to the provisions of this chapter.”

But, Tit. 36, § 155, supra, states:

“(c) Only a physician, registered nurse, or duly licensed clinical laboratory technologist or clinical laboratory technician acting at the request of a law enforcement officer may withdraw blood for the purpose of determining the alcoholic content therein. This limitation shall not apply to the taking of breath or urine specimens.”

Thus, neither of these sections authorize the deputy coroner to do what he did in the case before us. Nothing appears in the record to indicate that the deputy coroner falls within any of the classes of persons set out in § 155, Tit. 36, supra.

We must then conclude that, having no statutory right to withdraw the blood sample in question, the coroner’s act was unauthorized. The blood sample, being a part of the remains of the deceased, is due to be returned to the surviving spouse (the plaintiff-appellee here) who has a paramount right thereto. Southern Life & Health Ins. Co. v. Morgan, 21 Ala.App. 5, 105 So. 161 (1925), cert. den., 213 Ala. 413, 105 So. 168.

The judgment of the trial court is affirmed to the extent that the blood sample is ordered to be returned to appellee.

On the other hand, we find no authority, nor have we been cited to any, which authorizes the trial judge to order that no public record be made of the results of the tests made upon the blood sample and that any report of the tests or examinations thereof be returned to appellee. Previously, this Court has held that the reports of a state toxicologist are public records. Tit. 7, § 393, Code of 1940; Seals v. State, 282 Ala. 586, 213 So.2d 645 (1968).

The judgment of the trial court is reversed to the extent that it orders that “no public record shall be made of any result of tests made upon the said blood sample and any result or report upon any written tests or examinations of the said blood sample shall be, forthwith, delivered to Plaintiff,” etc.

The cause must be reversed and remanded for the entry of a judgment in conformity with this opinion. The motion for summary affirmance is denied.

AFFIRMED IN PART.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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

      . Although the Deputy Coroner took an appeal in this cause, we were advised in brief that he has dismissed it. We find no record thereof in the transcript but both parties treat his dismissal as having been effected, and so do we.


text:
    Samuel T. DUMAS, Jr., d/b/a Samuel Dumas Construction Co. v. DUMAS BROS. MANUFACTURING COMPANY, INC., a corp.
    SC 1379.
    Supreme Court of Alabama.
    April 2, 1976.

      Hill, Hill, Carter, Franco, Cole & Black, and John M. Milling, Jr., Miller & Hoffman and H. E. Nix, Jr., Montgomery, Lee B. Williams, Grove Hill, for appellant.
    Brown, Hudgens & Richardson, Alton R. Brown, Jr., Claude D. Harrell, Mobile, Wyman 0. Gilmore, Grove Hill, for appel-lee.
   EMBRY, Justice.

This appeal is from judgment on jury verdict for $234,000 in favor of plaintiff Dumas Brothers Manufacturing Company, Inc. (Dumas Brothers) and against defendant Samuel T. Dumas, Jr., d/b/a Samuel Dumas Construction Company (Dumas).

We affirm.

The Pleadings

The action for damages arose from destruction by fire of a building and its contents of furniture products, raw materials, supplies and equipment, all incident to plaintiff’s furniture manufacturing business.

By its last amended complaint Dumas Brothers asserted the right to recover of Dumas for breach of duties arising from the relationship of the parties under an oral agreement whereby Dumas undertook construction of additions to premises of Dumas Brothers.

The breach of those duties was said to consist of negligence in causing the destructive fire by: (1) failing to warn a workman of the presence of highly flammable material at a place where defendant knew or should have known it to be and causing or permitting that workman to use a burning torch (to burn or cut metal) in close proximity to that material. (2) Defendant Dumas using or causing the torch to be used at the same place after defendant Dumas had been warned by plaintiff Dumas Brothers against such use.

Issue was joined by answer. It was a denial (general issue) of the material allegations of the complaint and alleged contributory negligence upon the part of Dumas Brothers.

Dumas filed Motion for Directed Verdict on conclusion of the evidence. It was denied. Following verdict he filed Motion For Judgment Notwithstanding The Verdict, or in the alternative, Motion For New Trial. After a hearing of the latter motion, at which evidence was taken, the motion was denied. This appeal ensued.

The Facts

Defendant Dumas entered into an oral agreement with plaintiff Dumas Brothers to make additions to a warehouse owned by the latter. Dumas was aware of the nature of the business (manufacture of furniture) engaged in by Dumas Brothers, the highly flammable nature of foam rubber used in that business and that such was stored in the warehouse to which he was making additions. Under the terms of the rather loosely defined oral agreement it appears there was an understanding that from time to time during construction Dumas could call upon Dumas Brothers for help from its employees, if needed, although any such employee would remain in the pay of Dumas Brothers.

The fire, the vortex of controversy in this case, originated in the ceiling of a building to which an addition was being constructed. Its cause was sparks falling from the site of a cut being made in metal by use of a cutting torch. Those sparks fell upon highly flammable foam rubber stored in the existing building. The torch was being used at the time by Jimmy Bayles who was on the payroll of Dumas Brothers. Dumas was there doing the cutting at the particular spot using a cutting torch under the following circumstances. When Dumas had embarked upon the job he was told by Dumas Brothers that it had a qualified welder and burner and that anytime he needed one to send and get him, not to hire one. Before the time at which the fire started Dumas had been told by Dumas Brothers not to use a cutting torch or cutting tool to cut the metal beams near the foam rubber.

Bayles had been sent to Dumas for the purpose of cutting with a torch upon Dumas’ request for “ * * * a man with a torch to do some burning.” Dumas did not inform Dumas Brothers of the location of the spot where the “burning” was to be done — on the beam adjacent to where the foam rubber was stored in the warehouse. Dumas Brothers was not otherwise informed that such “burning” or cutting was to be at that spot. Dumas instructed Bayles where to cut. Dumas then left the situs of the cutting and was not present when the fire started. The facts recited in the foregoing summary were adduced from sharply conflicting evidence in the record about which there is heated disagreement expressed by the parties in their respective briefs.

The Issues

The assignments of error present for review these issues: (A) On a hearing of the motion for judgment notwithstanding the verdict, or in the alternative for new trial, was it error to exclude an affidavit and testimony of a juror offered to impeach the verdict? (B) Did the giving of certain written jury instructions at the instance of Dumas Brothers injuriously affect the substantial rights of Dumas? (C) Did prejudicial error result from the failure of the trial court to hear and record the testimony of a juror offered to impeach the verdict ?

There were other errors assigned but not urged, therefore we will not deal with them.

A

On hearing of his motion for judgment n. o. v. or in the alternative for a new trial, Dumas offered the affidavit of a juror. In pertinent part it reads:

“ * * * I was a member of the jury in the case of Dumas Brothers Manufacturing Company, Inc., Vs. Samuel T. Dumas, Jr., d/b/a Samuel T. Dumas Construction Company, which case was tried in the Circuit Court of ' Clarke County, Alabama, during the week of February 4, 1975. After the case was completed and we went to the jury room to decide the case, the discussion in the jury room was about insurance and that Samuel Dumas, the defendant, would not be hurt by any verdict which we might return against him for damages. The facts of the case were not discussed and there was no discussion about Samuel Dumas being negligent or at fault. I did not and do not believe from the evidence which I heard that the fire which resulted in the lawsuit was in anyway the fault of Samuel Dumas. From the discussion about insurance in the jury room, I was led to believe that Samuel Dumas had plenty of insurance coverage and that he would not be liable for any part of the judgment which we returned against him. The only reason that I voted to return a verdict in the amount of $234,000.00 against Samuel Dumas was because of the fact that I believed from the discussion in the jury room that he had plenty of insurance coverage.”

The law and public policy alike declare that affidavits of jurors with respect to occurrences in the jury room may not be received for the purpose of impeaching their own verdict. Weehley v. Horn, 263 Ala. 364, 82 So.2d 341. The basis for the rule is expressed in Gulf States Steel Co. v. Law, 224 Ala. 667, 141 So. 641, as follows :

“ ‘The court committed no error, when it declined to consider the affidavit of one of the jurors trying the case, who undertook to testify to his own and fellow jurors’ action and conduct while considering the case. A due regard for the proper and orderly administration of the law, a proper regard for the solemnity of verdicts of jurors, as well as a sound public policy forbid that members of a jury, after they have made their de-liverances in court, should be allowed to impeach their verdicts. To give consideration to such affidavits would tend to bring the law and its administration into disrepute. * * ”

quoting from Weekley v. Horn, supra.

Dumas contends the trial court erred in not accepting the juror’s affidavit and testimony which exposed jury discussions during its deliberation. He says the case falls within an exception to the general rule. The exception is where the affidavit tends to show the extraneous facts which have influenced the verdict. Improper communications between jurors themselves are not extraneous influences or extraneous facts. Weekley v. Horn, supra. Dumas contends that the content of the affidavit here stating the jury failed to discuss the facts in evidence compels by inference the conclusion that what it discussed was necessarily extraneous facts. We cannot agree with this.

The affidavit offered revealed merely what was discussed during jury deliberation; liability insurance coverage. The affidavit was properly excluded. It only divulged the nature and content of the jury’s deliberation. That, without regard to its propriety or lack of it, is not extraneous.

B

The written jury instructions given at the request of Dumas Brothers about which Dumas complains are:

Number Four (4)

“The Court charges the jury that in determining whether the general employer or one to whom the employee has been loaned is responsible for the employee’s acts, he is to be deemed the employer who has the choice, control and direction of the employee in the service to be performed. If the jury is reasonably satisfied from the evidence in this case that at the time of the occurrence of the fire alleged in the complaint, Jimmy Bayles was then and there performing duties which in all details were according to the choice of and under the control and direction of the defendant, Samuel T. Dumas, in that event your determination should be that Jimmy Bayles was then and there acting as the employee or servant of the defendant, Samuel T. Dumas; and the Court further charges you that if you are reasonably satisfied by the evidence in this case that alleged fire was the direct and proximate result of the negligence of Jimmy Bayles in performing his work at that time and that Plaintiff’s damage, as claimed in this case, proximately resulted from that negligence, then your verdict should be for the plaintiff.”

Number Five (5)

“The Court charges the jury that an employee may be in the general service of one person or firm and nevertheless with respect to some particular work may be transferred to the service of another person or firm in such way that the employee becomes, for the time being, the servant or employee of such other person or firm. In such cases, in determining the question whether the employee at a particular time is the employee of his general employer or that of the person or firm to whom his services have been lent, consideration should be given to the matter of whose work the employee is performing and under whose control he is performing that work at the time in question. It is the right to control the performance of the work at the time in question that determines the employer-employee relation. If you are reasonably satisfied by the evidence in this case that at the time of the fire alleged in the complaint, Jimmy Bayles was then and there performing services for the defendant, Samuel T. Dumas, and who at that time had the right to control Jimmy Bayles in the performance of those services, and if you are further reasonably satisfied by the evidence that Jimmy Bayles was negligent in the performance of those services and that as a direct and proximate result of such negligence, a fire was caused to destroy or damage the building and personal property of the plaintiff, then your verdict should be for the plaintiff.”

Number Six (6)

“The Court charges the jury that when one person or firm lends his employee to another for a particular employment, that employee, for anything done in that employment, must be considered as being the employee of him to whom he is lent, and this is true although he remains the general servant of the person or firm who lent him. However, for that result to obtain the person or firm to whom the employee is lent must have the right to control the employee in the performance of the work. It is the right to control the performance of the work at the time in question that determines the employer-employee relation. If you are reasonably satisfied by the evidence in this case that at the time of the fire alleged in the complaint, Jimmy Bayles was then and there performing services for the defendant, Samule (sic) T. Dumas, and who at that time had the right to control Jimmy Bayles in the performance of those services, and if you are further reasonably satisfied by the evidence that Jimmy Bayles was negligent in the performance of those services and that as a direct and proximate result of such negligence, a fire was caused to destroy or damage the building and personal property of the plaintiff, then your verdict should be for the plaintiff.

Number Seven (7)

“The Court charges the jury that one who by his contract or by law is due certain obligations to another cannot divest himself of liability for a negligent performance of those obligations by employing another to perform those obligations for him; and if the jury is reasonably satisfied by the evidence in this case that the fire and resulting damages to the property of the plaintiff as complained of, was the direct and proximate consequence of the negligence, as I have defined that term to you, of the defendant or of someone acting for the defendant and in his stead in the performance of obligations owing by defendant to the plaintiff, then your verdict should be for the plaintiff.”

Number Eight (8)

“If the jury is reasonably satisfied by the evidence that at the time and place alleged in the complaint, the defendant, Samuel T. Dumas, had the right to direct Jimmy Bayles and that Jimmy Bayles was then and there obeying the orders of the defendant, Samuel T. Dumas, and while so doing, a fire was ignited, or caused to occur, by negligence on the part of Jimmy Bayles, which proximately resulted in damage to the building and personal property of the plaintiff, then I charge you the plaintiff ought to have damages in such sum as the evidence entitles him to.”

Number Nine (9)

“The Court charges the jury that the payment of compensation is an incident merely and is not an essential element in the creation of the legal relation of employer and employee. The essentials to create that relation are: the voluntary rendition of service by the employee; its acceptance by the employer, and the right of the employer to direct and control the employee in the performance of the service for the employer. If you, the members of the jury, are reasonably satisfied by the evidence that at the time and place the fire alleged in this case occurred, Jimmy Bayles was rendering service for the defendant, Samuel T. Dumas, who and at that time and place had the right to direct and control Jimmy Bayles in the performance of the service Jimmy Bayles was then and there performing, the Court charges you that Jimmy Bayles at said time and place was, in contemplation of law, the employee of the defendant, Samuel T. Dumas, and the fact that the defendant did or did not pay compensation directly to Jimmy Bayles for those services does not alter or change that relation of employer-employee.”

Dumas claims that each of the charges are incurable misstatements of the law misdefining the “loaned servant” doctrine. In support he cites Lucas v. Kirk, 275 Ala. 20, 151 So.2d 744. On request of Dumas the following written charges were given:

Number Two (2)
“I charge you that if you are reasonably satisfied from the evidence in this case that Dumas Brothers Manufacturing Company, Inc., had the reserved right of control over Jimmy Bayles at the time he was working at the building site where the fire occurred, then Jimmy Bayles was acting within the line and scope of his employment with Dumas Brothers Manufacturing Company, Inc., at such time.”
Number Three (3)
“I charge you that if you are reasonably satisfied from the evidence that Dumas Brothers Manufacturing Company, Inc., assumed the duty of providing a person to operate a torch cutter when needed by Samuel T. Dumas, Jr., then Dumas Brothers Manufacturing Company, Inc., assumed the duty of providing a person to operate such torch cutter who was reasonably competent and would take reasonable safety precautions in the operation of a torch cutter.”
Number Four (4)
“I charge you that if you are reasonably satisfied from the evidence that Dumas Brothers Manufacturing Company, Inc., undertook the responsibility of providing a person to operate a torch cutter when needed by Samuel T. Dumas, Jr., then Samuel T. Dumas, Jr., had the right to assume that Dumas Brothers Manufacturing Company, Inc., would send a person who was competent and would take reasonable safety precautions in the operation of a torch cutter.”
Number Five (5)
“I charge you that if you are reasonably satisfied from the evidence in this case that Jimmy Bayles was an employee of Dumas Brothers Manufacturing Company, Inc., and was working within the line and scope of his employment with Dumas Brothers Manufacturing Company, Inc., at the time of the incident concerned, and if you are further reasonably satisfied from the evidence in this case that Jimmy Bayles was guilty of any negligence which proximately contributed, even in the slightest degree, to the fire damage complained of, then you cannot return a verdict against Samuel T. Dumas, Jr.”
Number Thirteen (13)
“I charge you that the mere fact that Samuel Dumas gave information and directions to Jimmy Bayles as to the details of the work or the manner of doing it does not make Jimmy Bayles the servant or employee of Samuel Dumas.”
Number Fourteen (14)
“I charge you that if you are reasonably satisfied from the evidence in this case that Dumas Brothers Manufacturing Company, Inc., had the authoritative direction and control of Jimmy Bayles on the occasion concerned, and if you are further reasonably satisfied from the evidence that Samuel Dumas merely suggested to Jimmy Bayles the details or the necessary cooperation for the performance of the work furnished, then Jimmy Bayles was the employee of Dumas Brothers Manufacturing Company on such occasion and was not the employee of Samuel Dumas so as to hold Samuel Dumas liable for any negligence on the part of Jimmy Bayles.”
In the court’s oral charge we find:
“* * * who was Jimmy Bayles acting for as agent on that occasion ? Was he acting for the plaintiff, Dumas Brothers Manufacturing Company, or was he acting for the defendant, Samuel T. Dumas, Jr. ? And also, if he was acting for either of them, was he acting within the line and scope of his employment or agency, or acting as agent, servant, or employee of his principal.
“Now, in connection with agency, the Court charges you an agent is a person who by agreement with another, called the principal, acts for the principal and is subject to his control. This agreement may be oral or written or implied from the conduct of the parties, and may be with or without compensation. * * *
“* * * Now, mind you, either one could be acting through their agents, servants, or employees on that occasion, the defendant or the plaintiff, and the plaintiff or the defendant, if you find that this witness, Jimmy Bayles, was an agent then you would have to say who he was acting for. * * *”

The specific omissions which result in written charges of Dumas Brothers being incurable erroneous statements of law, according to Dumas, is the failure to qualify the word “control” by the words “reserved right of” and the failure to include the word “consensual” in describing the necessary consent, agreement or acquiescence of Bayles to be a “loaned servant” of Samuel Dumas. Admittedly these charges may not be the most carefully drafted, complete and precise statements of the factors to be considered by the jury in deciding whether, on the occasion, Bayles was a “loaned servant” of Dumas. On the other hand when one looks at the totality of the instructions by which the jury was guided in its resolution of this issue then the claimed defects in them assume Lilliputian proportions. Lucas is not apt, rather is Rule 51, ARCP. Taylor v. Owen, 294 Ala. 543, 319 So.2d 672. The totality of the jury instruction, oral and written was legally sufficient and the evidence adequate to authorize the jury to conclude that Bayles was the “loaned servant” of Dumas. The ultimate test is whose work was the servant doing at the time the complained of act was committed and under whose control was he doing it? Martin v. Anniston Foundry Co., 259 Ala. 633, 68 So.2d 323.

Plaintiff’s and defendant’s given requested charges taken together and in conjunction with the whole of the court’s oral charge does not, therefore, constitute reversible error. Error, if any, is error without injury since the charges viewed as an entity did not injuriously affect the substantial rights of Dumas. ARAP 45.

C

Dumas contends the trial court erred in not hearing and recording the testimony of a juror offered to impeach the verdict. He relies on Rule 43(c), ARCP in that part:

“* * * the court upon request shall take and report the evidence in full, unless it clearly appears that the evidence is not admissible on any ground * *

This gives Dumas the opportunity to place in the record what he was not allowed to adduce at the hearing of the post judgment motion unless “* * * it clearly appears that the evidence is not admissible on any ground * * *

The court allowed Dumas to make a showing of what he expected to prove by the juror’s testimony. After making that offer by reading the affidavit, counsel for Dumas asked the juror:

“When you went into the jury ropm what was the topic of discussion, and what statements did you hear made in the jury room?”

Dumas Brothers immediately objected and the court correctly sustained that objection. Such testimony is clearly not admissible on any ground. Weekley v. Horn, supra.

AFFIRMED.

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


author: FAULKNER, Justice.

text:
    Harold Dean MITCHELL v. Sarah J. STONE et al.
    SC 1727.
    Supreme Court of Alabama.
    April 2, 1976.
    Scruggs, Rains & Wilson, Fort Payne, for appellant.
    Beck & Beck, Fort Payne, for appellee, Sarah J. Stone.
   FAULKNER, Justice.

This appeal comes from the Circuit Court of DeKalb County on a judgment ordering a resale of property for • division. The only issue before this court is whether the trial judge was correct. In our opinion he was, and we affirm.

On November 21, 1973, S. M. Stone and S. L. Stone filed suit against Eva Mae Jones, B. L. Stone, and Sarah J. Stone to sell 40 acres of land at public auction for division of the proceeds. The first sale was held on April 18, 1975. At this sale a dispute arose over the final bid. Mitchell said when he bid $4,500, the auctioneer closed the bidding. Mr. Beck, who represented Sarah Stone, said'he made a bid of $5,000. The Register said she could not determine who the high bidder was, and requested the court to determine the rightful bidder. No sale was reported by her.

The court heard testimony ore tenus and ordered a resale of the property. Additionally he ordered the Register to refund Mitchell’s deposit, Sarah Stone to begin the bidding at $8,000 (the reputed fair market value of the property) and that she deposit $1,800 into the court as good faith to guarantee the $8,000 bid. At the sale Sarah Stone became the purchaser for $8,000, and the sale was confirmed by the court.

We agree with the trial court in his decree that “Courts must guard against rendering judicial sales unstable by setting them aside too freely.” But, in this case, the court correctly exercised his discretion by ordering a resale because of a mistake and the confusion existing at the first sale. The mistake in the bidding does not appear to be the fault of the interested parties. Consequently the trial court, in confirming the resale, acted with fairness and prudence. We also observe that the difference between Mitchell’s bid and the value of the property is $3,500. This may have solidified the trial court’s reasoning that there was a mistake in the bidding, and that a resale should be ordered. Martin v. Jones, 268 Ala. 286, 105 So.2d 860 (1958). After all is said and done, the primary objective of all sales, public or private, is to get the best price obtainable for distribution. Copeland v. Giles, 271 Ala. 302, 123 So.2d 147 (1960).

The trial court’s judgment is affirmed.

AFFIRMED.

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


author: WRIGHT, Presiding Judge.

text:
    Judith Church TEAGUE v. Willard E. MOTES and United States Fidelity & Guaranty Co.
    Civ. 682.
    Court of Civil Appeals of Alabama.
    April 7, 1976.

      Baker, Lester & Wilkes, Opelika, for appellant.
    Walker, Hill, Gullage, Adams & Um-bach, Opelika, for appellees.
   WRIGHT, Presiding Judge.

Suit was first brought by Ralph Teague, Jr. against Mark Motes for property damage arising from an automobile accident. Plaintiff’s wife, Judith Teague, was the driver of his automobile. A second suit was subsequently brought by Willard Motes and his subrogee insurance company against Judith Teague for damage to plaintiff’s insured automobile. Mark Motes, defendant in the first suit, is the son of plaintiff Motes in the second suit.

By agreement, the two cases were consolidated for trial. Defendant in the first case was represented by the same counsel as plaintiffs in the second. Defendant Mark Motes filed pleas of not guilty and contributory negligence in the first case— Case •# 653. Defendant Judith Teague filed plea of not guilty in the second case —Case # 719.

The accident occurred at an intersection controlled by various traffic lights. The auto driven by Judith Teague was turning left across the lane upon which Mark Motes was traveling when they collided. Each driver insisted the traffic light was favorable in the direction he or she was traveling. There was equal conflict with the testimony of other witnesses.

The trial judge charged the jury on the issues raised by the complaint in each'case. He charged on the defense of contributory negligence of the plaintiff in each case. At the conclusion of the charge, plaintiff in Case # 719 objected to the inclusion in the oral charge of the defense of contributory negligence of the plaintiff’s son. No such defense had been filed. Plaintiff submitted that the charge was improper because the administrative presumption of agency arising from ownership was rebutted by unchallenged testimony that the driver was not upon any business of the owner at the time of the accident. Upon plaintiff’s objection to the charge, defendant requested permission to amend her pleading to include the defense of contributory negligence. Amendment was permitted. Plaintiff’s motion to strike the amendment was overruled and the cases were submitted to the jury.

The jury returned a verdict in favor of plaintiff in Case # 653, awarding damage in the amount of $500.00. The jury returned a verdict in favor of defendant in Case # 719. Plaintiffs in Case •# 719 moved for a new trial, asserting error in the charge as to contributory negligence of the driver, in permitting the amended defense and in overruling the motion to strike the amendment.

After consideration, in a lengthy and well-written judgment, learned trial judge granted plaintiffs’ motion for new trial in Case .# 719. No motion for new trial was made by defendant in Case # 653. Defendant Judith Teague appeals from the judgment granting a new trial in Case # 719.

Defendant submits three issues on appeal. We will consider them in reverse order.

The third issue is that the trial court was not in error in charging the jury on contributory negligence of plaintiff’s driver.

It is the law of this state that proof of ownership of an automobile, though driven by another, raises the administrative presumption of agency between the owner and the driver. Smith v. Johnson, 283 Ala. 151, 214 So.2d 846. Craft v. Koonce, 237 Ala. 552, 187 So. 730. When such proof is made, the burden falls upon the party who would disclaim agency to offer proof in rebuttal that no agency existed. If such proof is presented and is not contradicted, the presumption of agency is removed. Brown v. Southeastern Greyhound Lines, 255 Ala. 308, 51 So.2d 524.

In Case # 719, plaintiff by bringing suit for damages to his automobile concedes ownership. Proof that it was being driven by his son when damaged established the presumption of agency between owner and driver. Smith v. Johnson, Supra. In order to remove the effect of such presumption, though established largely by his own action and evidence, plaintiff needed to present testimony that his son was not his agent acting within the scope of his authority at the time and place of the accident. Plaintiff did present evidence that his son was a student at Auburn University while plaintiff was at home in Sylacauga; that the son was traveling from class to his place of residence in or near Auburn when the accident occurred. Defendant presented no contradictory proof. When compared with the proof determined in Smith v. Johnson, Supra, to be sufficient to rebut the presumption, it is evident that the presumption of agency established by mere ownership was overcome by plaintiff in this case. Defendant, to claim a defense of contributory negligence against plaintiff, had to offer some proof to contradict the evidence of plaintiff that no agency existed between him and his son. Having failed to do so and present a question for the jury he was not entitled to claim contributory negligence of the driver against plaintiff’s suit. The court erred in permitting such defense and charging the jury thereon. However, for reasons stated hereafter, such error was not such as to require the granting of a new trial.

Defendant’s first and second issues are interrelated. The second issue is that because of the verdict reached by the jury in Case ■# 653, the primary issue in Case # 719 became res judicata. Therefore, the erroneous charge by the court on contributory negligence was not injurious to plaintiffs and a new trial should not have been granted because of it.

Let us examine these issues in light of the situation presented by consolidation of cases for trial. Rule 42(a) ARCP provides for consolidation of actions involving a common question of law or fact. The actions in this case were not consolidated for trial by order of the court, but by agreement and request of the parties. Consolidation of cases does not require mutuality of parties but mutuality, in some degree, of issues and law. The instant case is classic example of proper consolidation. Though the parties are different, the claims for relief arise from the same occurrence and involve the same issue, negligence vel non, of the respective drivers of the automobiles.

Had the cases been tried separately, under the Alabama principle of res judicata, a judgment in Case ■# 653 would not have rendered the action in Case # 719 res judicata. The Alabama rule of res judicata requires that there be a mutuality of parties and issues. Findings of law or fact in an action do not; affect persons who were not parties or privies to the action. Suggs v. Ala. Power Co., 271 Ala. 168, 123 So.2d 4. The principle underlying res judicata or estoppel by judgment is that one cannot be bound by the conclusions in a prior case unless he was a party thereto and had the opportunity to participate therein.

In consolidated cases we perceive a distinct difference. The very purpose of consolidation is to expedite litigation and save money. Though parties in consolidated actions retain their separate identities and the parties and pleadings in one action do not become parties and pleadings in the other, there is a mutuality of issues and law, in some degree, and all parties participate in the trial and determination of the common issues. It was said in Haddad v. Border Express, Inc., 300 F.2d 885 (1st Cir. 1962), that “plaintiff is bound, however, not by privity, but by participation.”

In consolidated cases wherein the primary issue is which of two drivers was negligent and the proximate cause of the accident, a finding of fact, on that issue in one case, must be binding upon the parties in the other. Any other conclusion would permit the jury to return inconsistent verdicts in cases tried together.

In this case, by consolidation, the issues of which of the drivers of the two cars was negligent and the proximate cause of the accident were merged. There could not have been verdicts on that issue in favor of each of the plaintiffs—as there might have been in separate trials. The right of recovery by plaintiff-owner against defendant-driver in Case # 653 was dependent upon a finding that defendant was guilty of negligence proximately causing the accident and that plaintiff’s driver, Mrs. Teague, was free from negligence contributing thereto. Such finding would prohibit recovery by plaintiffs in Case # 719, for their right of recovery depended upon a finding that the negligence of defendant, Mrs. Teague, was the proximate cause of the accident.

It is our opinion that permitting defendant, Mrs. Teague, to plead the contributory negligence of plaintiff’s driver as a defense and the charge by the court to the jury thereon, though erroneous, did not injuriously prejudice plaintiffs. The jury having determined Mrs. Teague to be free from negligence proximately causing, or contributing to the accident by its verdict in Case # 653, there could not have been a verdict in favor of plaintiffs in Case # 719 in any event. The erroneous instruction was rendered harmless by the verdict. Alabama Farm Bureau Mut. Cas. Ins. Co., Inc. v. Smelley, 10 A.B.R. 628, 329 So.2d 544; W. E. Belcher Lumber Co. v. Woodstock Land & Mineral Co., 245 Ala. 5, 15 So.2d 625; Hill v. Wyrosdick, 216 Ala. 235, 113 So. 49.

To permit plaintiff a new trial in Case # 719 only, would, in truth, be a severance. It would make possible a verdict inconsistent with that already rendered with participation of plaintiff upon the issue of whose negligence proximately caused the accident.

It is clear from the lengthy and explicit judgment of the learned trial judge, that he granted a new trial to plaintiffs solely because he had erroneously charged the jury and permitted the defense of contributory negligence. This court has the highest respect for the trial judge and for his purpose of correcting the unintentional error committed at trial. However, it is our view that the intricacies of this case bring it within the provisions and the spirit of Rule 61, ARCP and Rule 45, ARAP. The error of the trial court clearly did not affect the substantial rights of plaintiffs and a new trial should not have been granted because of such error. We believe we have manifested by what we have said herein, that the granting of a new trial to plaintiffs could work a substantial injustice to defendant and require relitigation of an issue already determined by a jury in a trial in which plaintiffs participated and by which they are bound.

Though not mentioned on appeal, we point out that the order granting the motion for new trial contains the following:

“After reviewing this case and studying the above authorities and others cited to the Court by the attorneys of record in this case, the Court is of the opinion that the Court committed error in not granting plaintiffs’ motion to strike defendant’s plea of contributory negligence after the evidence was all in and in not granting a directed verdict for the plaintiffs: and that, therefore, the plaintiffs are entitled to a new trial.” (Emphasis ours.)

We are at a loss to determine the meaning of the emphasized statement in the above. The evidence of negligence as previously shown herein was greatly in conflict. Under no circumstances would plaintiffs have been due a directed verdict.

REVERSED AND REMANDED.

BRADLEY and HOLMES, JJ., concur.


text:
    Samuel Lee SMITH v. Julia Mae Heatley SMITH.
    Civ. 737.
    Court of Civil Appeals of Alabamba.
    April 7, 1976.

      Larry Knopf, Birmingham, for appellant.
    Bert Lindbergh, Birmingham, for appel-lee.
   WRIGHT, Presiding Judge.

Appellant, the defendant in a divorce action, appeals from that portion of the court’s decree ordering him to pay $350.00 to the wife for payment of her attorney’s fee. Affirmed.

Wife filed suit for divorce, requesting attorney fees. Husband answered and asked for custody of the children. The court granted the divorce with attorney fees, but awarded custody of the four children to the husband.

The record contains no transcript of the evidence taken in the cause. The following facts are taken from an affidavit filed in support of husband’s motion for new trial. Husband has been certified as physically disabled by Social Security. His monthly income consists of a $356.80 disability check. Out of this income he must support the four children of the marriage, ages 16, 15, 13 and 12, and two adult daughters with infant children. He has no assets other than an automobile and household effects.

Cases in this state have long recognized that the trial court may, under Title 34, Section 30, Code of Alabama (1940), award the wife a sum to provide for her attorney’s fees. This is so even though Section 30, supra does not specifically provide for attorney’s fees. See 8 Ala.Dig., Divorce, § 221 et seq. Attorney’s fees are allowed as expense money on like principles as alimony pendente lite. Hodson v. Hodson, 276 Ala. 227, 160 So.2d 637. Alimony pendente lite is awarded to the wife to cover necessary expenses during the period prior to the divorce. One of her necessary expenses during this period involves the services of an attorney to represent her in the divorce action. She becomes obligated to pay the attorney’s fees during this period. The court’s decree awarding her attorney’s fees merely provides her a method to meet this obligation. It is not necessary that an allowance for attorney’s fees be made prior to the final disposition of the cause, as the reasonable value of these services could not be shown until the case is completed.

The award of attorney’s fees is largely within the discretion of the court, the exercise of such discretion being judicial and subject to review. Hewitt v. Hewitt, 285 Ala. 516, 234 So.2d 283; Gamble v. Gamble, 53 Ala.App. 168, 298 So.2d 254. Husband argues that, in light of his monthly income and responsibilities of supporting the minor children of the marriage, the award is excessive and amounts to an abuse of discretion. While husband’s affidavit in support of his motion for new trial did show his financial status and his obligations with respect to support, it shed no light on the financial status or earning capacity of the wife. We have no record of evidence considered by the court in reaching its initial decision to award the divorce and attorney’s fees. With this state of the record, we are unable to say that the trial court abused its discretion in the award of attorney’s fees.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


text:
    Charles Wayne RICKARD v. Mary K. RICKARD.
    Civ. 717.
    Court of Civil Appeals of Alabama.
    April 7, 1976.
    McCollough, McCollough & Landrum, Birmingham, for appellant.
    Richard L. Taylor and Van Gamble, Birmingham, for appellee.
   WRIGHT, Presiding Judge.

This appeal arises from a decree divorcing the parties and granting alimony, child support and certain property to the wife. Affirmed.

Wife sued for divorce, alleging adultery. She sought alimony and child support pen-dente lite. A reference was ordered by the court. The master reported husband’s income to be approximately $1,100.00 per month and recommended an allowance of $400.00 per month support and maintenance pendente lite. No exceptions or objections being filed thereto, the report was confirmed by the court.

Considerable evidence was introduced concerning husband’s adulterous relationship with a young woman who was 19 at time of trial. This evidence included photographs and letters found in husband’s traveling bag and wife’s testimony of telephone conversations between husband and the young woman in, her presence. Husband explained that he allowed his wife to find the photographs and letters and overhear the conversations to insure that she gave him a divorce. It appears that the desired result was achieved.

The decree awarded the home and newest car of the parties to the wife. She must continue to make payments on these properties. Alimony and child support totaling $400.00 per month were awarded to wife.

Husband’s primary argument on appeal is that the case should be reversed because he was not represented by competent counsel at trial. He cites no cases in support of this position and admits that this is a case of first impression. Apparently, husband relies on the many cases concerning adequacy of representation for the criminal defendant. See Taylor v. State, 291 Ala. 756, 287 So.2d 901. Even were we to find that husband was not adequately represented below (to the contrary, it appears that his attorney endeavored to make the best of a nearly impossible situation), we would not be willing to grant the relief sought by husband. Cases such as Taylor deal with the rights of criminal defendants to effective representation. This right to effective assistance of counsel is based on the Sixth Amendment’s guaranty of assistance of counsel. Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158, 84 A.L.R. 527. The Sixth Amendment applies only to criminal prosecutions. While an individual should certainly be entitled to effective legal representation in civil suits, to allow a party to obtain a reversal as suggested by husband could create an unmanageable situation. Here the husband was represented by counsel of his choice. There was no allegation of any fraud or collusion by counsel. Nor was it asserted that the opposing party had anything whatsoever to do with what husband calls his inadequate representation.

Under these circumstances courts of other states have held that a losing party is not entitled to a new trial. Culp v. Culp, Mo.App., 216 S.W.2d 551; Marks v. Marks, 163 Kan. 454, 182 P.2d 885. This position is correct and should prevail in Alabama.

Husband’s third and fourth issues presented for review concern the award of alimony and child support. He concedes that there was ample testimony of need by the wife and child to support the award. However, husband says there was no testimony showing his ability to pay and that, because this factor must be considered by the trial judge in making its award, the case is due to be reversed.

This position is not supported by the record. Before trial a reference was held on the matter of alimony and child support pendente lite. The report of the special master found husband’s income to be $1,100.00 per month, net. No objection to the report was filed and it was accepted by the court. Husband introduced no evidence to show that his income had increased or decreased since the report was filed. Therefore, the court was entitled to rely on the evidence of a monthly income of $1,100.00 in fixing alimony and support.

Appellee having moved for an allowance for attorney’s fee on appeal, it is considered that she have and recover of defendant the sum of $350.00 as a reasonable attorney’s fee for services of her attorney on appeal.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


author: HOLMES, Judge.

text:
    Leon BISHOP v. Carol Ann BISHOP.
    Civ. 758.
    Court of Civil Appeals of Alabama.
    April 7, 1976.

      Caddell, Shanks, Harris, Moores & Mur-phree, Decatur, for appellant.
    Powell & Powell, Decatur, for appellee.
   HOLMES, Judge.

This is a divorce case from the Circuit Court of Morgan County. The trial court found that a common-law marriage existed between the parties, and granted the plaintiff Carol Ann Bishop a divorce on the grounds of incompatibility of temperament and irretrievable breakdown of the marriage. The trial court awarded custody of two minor children to Carol Ann Bishop and ordered defendant to pay child support. Defendant Leon Bishop prosecutes this appeal.

The sole issue before this court is whether the evidence before the learned trial court was sufficient to justify its finding that a common-law marriage existed between the parties. We find the evidence to be insufficient to support the trial court’s determination, and reverse and remand the cause.

The pertinent facts as revealed by the record are as follows:

Plaintiff-appellee Carol Ann Bishop has known the defendant-appellant, Leon Bishop, since 1969, and first spent the night with him in the latter part of 1970. She has lived with him for a total of some five or six days over a three and one-half year period. During this period she averaged seeing him once a week. She first began using the surname “Bishop” in late 1971, which action defendant neither objected to nor authorized.

Since the beginning of her relationship with defendant, plaintiff has given birth to two children, of whom she asserted defendant is the father. Defendant attested he does not know whether the children are his, although there is some testimony he has at times acknowledged them as his. Defendant has given the children no support save for once paying a doctor bill and, according to plaintiff, furnishing food and diapers for one child on an occasion when plaintiff and the child came to live with defendant. Plaintiff gave the children defendant’s surname, of which action defendant was aware.

Defendant has never told plaintiff they were married, and never had any agreement with her to that effect. Plaintiff at one point stated that the relationship between her and defendant was a protracted affair, and that they were not actually common-law husband and wife.

Plaintiff testified that the only times defendant has introduced her to others as his wife were once to his sister, and once to her doctor when one of the children was born. Defendant asserted he has never introduced her to others as his wife. Plaintiff further testified she knew of no one in Decatur, where the parties reside, to whom defendant had introduced her as his wife. She also testified they are not generally known in the community as being married.

The defendant produced two witnesses who testified in substance that they had no reason to believe plaintiff and defendant were married.

Plaintiff claimed to have various charge accounts in the name of “Carol Bishop.”

Plaintiff introduced into evidence a form signed by defendant, by which he as plaintiff’s husband consented to her undergoing a tubal ligation for sterilization purposes. Defendant sought to explain this away, stating he could not read or write save to sign his name and that he did not know he signed the form as plaintiff’s husband. He further stated that he signed only because he was told by plaintiff his signature was required before she could have the operation.

As noted earlier, the trial judge found that the parties were in fact common-law married, divorced the parties, and ordered defendant to pay plaintiff $30 per week as child support.

It is settled that the law of Alabama recognizes common-law marriage. Blackwood v. Kilpatrick, 52 Ala.App. 505, 294 So.2d 753.

The requisites for a common-law marriage have been set out numerous times in the decided cases. A recent formulation of these requisites was given by the Supreme Court of Alabama in Krug v. Krug, 292 Ala. 498, 296 So.2d 715, wherein Mr. Justice Merrill said:

“To constitute a common-law marriage in this state, there must first have been a mutual understanding to presently enter into the marriage relationship, permanent and exclusive of all others, after which there is a public recognition of the existence of a common law marriage. Turner v. Turner, 251 Ala. 295, 37 So.2d 186; Beck v. Beck, 286 Ala. 692, 246 So.2d 420.” (292 Ala. at 501, 296 So.2d at 718)

It is indispensable that the parties must comport themselves in such a manner as to achieve public recognition of their status as common-law man and wife. Vinson v. Vinson, 260 Ala. 254, 69 So.2d 431, states that the requirement rests upon reasons of public policy. The. Vinson case points out that common-law marriage is based upon presumptive proofs, and that public recognition is the most persuasive of those proofs in demonstrating that marriage rather than a state of mere concubinage has been intended by the parties.

We cannot dispute that public knowledge of the common-law marriage is the most effective means of insuring that the more casual relations between men and women are not elevated to the status of marriage. The marriage relationship may be shown in any way that can be known by others, such as living together as man and wife, referring to each other in the presence of others as being in that relation, declaring the relation in various types of documents and transactions, sharing household duties and expenses, and generally engaging in “ . . . all of the numerous aspects of day-to-day mutual existence of married persons.” Beck v. Beck, 286 Ala. 692, 246 So.2d 420; Vinson v. Vinson, supra.

Due to the serious nature of the marriage relationship, the courts will closely scrutinize a claim of common-law marriage and require clear and convincing proof thereof. Goodman v. McMillan, 258 Ala. 125, 61 So.2d 55. Applying that scrutiny to the facts of this case, and bearing in mind the above discussion, we are convinced that the distinguished trial judge erred by finding that a common-law marriage existed between plaintiff and defendant.

We can nowhere find an expression by the parties of any mutual understanding to enter the marriage relationship. The testimony belies any such contention. Viewing the facts which purport to show public recognition of the marriage in the light most favorable to the plaintiff, we are of the opinion that they are too meager to adequately show the parties considered themselves as man and wife.

So viewed, these facts show defendant once signed a medical consent form as plaintiff’s husband, twice introduced plaintiff as his wife, and allowed plaintiff and the two children to use his surname. As against this evidence, the record reveals without contradiction that no one in the community knew the parties as married, that defendant never held himself out to plaintiff as her husband, that the parties lived together only a few days over a period of years, and plaintiff during that period saw defendant on the average only once a week.

As stated earlier, the courts require clear and convincing proof of the existence of a common-law marriage. In our opinion, the evidence as set out above shows the plaintiff failed to meet this burden of proof. The facts adduced by plaintiff in proof of a common-law marriage do not meet the required standard of a pervasive pattern of unambivalent conduct, but rather are too few and isolated.

Able and distinguished counsel for appel-lee wife has filed with this court a motion to dismiss appellant’s appeal. The motion is as follows:

“Comes now the Appellee in the above styled cause and would move this Honorable Court to dismiss the appeal heretofore filed by the Appellant for the following reasons:
“1. The Appellant, Leon Bishop, was ordered by order of the Circuit Court in this cause to pay the sum of $30.00 for the support and maintenance of his minor children. The Appellee would further show that the Appellant has failed to conform to the Alabama Rules of Appellate Procedure, to-wit, Rule 8, and has also failed to pay the amounts ordered by the Circuit Court.
“WHEREFORE, PREMISED CONSIDERED, the Appellee would ask this Court to dismiss this cause because of the failure of the Appellant to comply with the orders of the Circuit Court and also with the Alabama Rules of Appellate Procedures as heretofore indicated.”

We have diligently perused Rule 8, ARAP, and we find, in this instance, no basis for dismissing appellant’s appeal.

The case is accordingly due to be reversed and remanded.'

REVERSED AND REMANDED; MOTION DENIED.

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