author: FAULKNER, Justice. BLOODWORTH, Justice JONES, Justice BEATTY, Justice FAULKNER, Justice. MADDOX, Justice

text:
    Ida HICKS et al. v. Doris Lester HICKS.
    SC 1990.
    Supreme Court of Alabama.
    Aug. 12, 1977.
    Rehearing Denied Sept. 9, 1977.
    Alton L. Turner, Luverne, Sam M. Phelps, Tuscaloosa, for appellants.
    John F. Dillon, IV, and Jennie Lee Kelley of Dillon & Kelley, Alexander City, for ap-pellee.
   FAULKNER, Justice.

This is an appeal from a judgment ordering real property sold for division, instead of equitably partitioned in kind. We affirm.

At the time of his death, W. A. Hicks owned an undivided one-half interest in 1441 acres of land. Of the other half interest, Ida Hicks, J. M. Wise and Lilellen H. Wise (defendants), as trustees, owned an undivided one-fourth interest and Lilellen H. Wise (defendant) owned the other undivided one-fourth interest. In his will W. A. Hicks devised to his wife, Doris Lester Hicks (plaintiff), “a life estate in and to a one-third interest in all of my property of every kind . . . provided that my wife shall receive one-third of the sale price of any property sold during her lifetime.”

Plaintiff seeks a sale for division of the real property in which the parties own joint interests. Defendants claim that the property can be equitably partitioned in kind and offer to allow plaintiff to select any 240 acres (a one-sixth interest in the lands) of her own choosing to which her life estate shall attach. By counterclaim, defendants seek partition in kind. Plaintiff denies that the land can be equitably partitioned; denies that the proposed partition is equitable as it does not take into consideration plaintiff’s entire interest and right to the property and provides for her to receive substantially less than she is entitled to receive upon sale for division; and alleges physical characteristics of the lands.

The Circuit Court of Pike County found that the property could not be equitably partitioned in kind and ordered the lands sold for division. Defendants appeal.

The two issues presented are whether the trial court committed reversible error in finding that the property could not be equitably partitioned in kind and whether the trial court committed reversible error in failing to fix the time of sale in the judgment. We find no reversible error.

I.

A sale of land for division when the land cannot be equitably partitioned in kind is a matter of right. Christian v. McConnell, 208 Ala. 300, 94 So. 280 (1922); Paper v. Belk, 276 Ala. 370, 162 So.2d 465 (1964). The party seeking the sale must prove that a fair and equitable partition in kind cannot be made. Meador v. Meador, 255 Ala. 688, 53 So.2d 546 (1951). The lower court, on the fact stipulations and the testimony of three witnesses, found that the property could not be equitably partitioned. The findings of fact and decree of the lower court after hearing the evidence ore tenus are entitled to a presumption of correctness and will not be disturbed on appeal unless plainly or palpably erroneous. Elliott v. Burch, 293 Ala. 244, 301 So.2d 557 (1974); Meador, supra. After reviewing the record, we find that the decree of the lower court is well supported by the evidence.

Defendants argue that, under Fendley v. Lambert, 286 Ala. 179, 238 So.2d 346 (1970), their offer to allow plaintiff to select any 240 acres is a special equitable reason for not ordering a sale. However, as Fend-ley states, each ease for partition must be judged on its own merits. The evidence in Fendley did not support a finding that a partition for division would be inequitable in that each of the parties owned an undivided one-eighth interest in the land in question.

In the instant case, however, the plaintiff is entitled not only to a life estate in an undivided one-sixth interest but also is entitled to receive one-sixth of “the sale price of any property sold during her lifetime.” A partition in kind would give the plaintiff only a life estate and not a fee simple in the 240 acres and would destroy her right under the will to share in the proceeds of a sale of the land. This result of depriving the plaintiff of the proceeds of sale to which she is entitled is an inequity which will prevent such a partition. Thus, there is no merit in the appeal as to this issue.

II.

The word “time” in the rule that a decree of sale should fix the time, place and terms of the sale refers to the time required for publication of the notice of sale, not the day on which the sale should be conducted. Oliver v. Dudley, 267 Ala. 87, 100 So.2d 327 (1958). A direction that the clerk sell the property “after giving notice of the sale by publication for three successive weeks . ” sufficiently refers to the period of the publication of the notice of sale. Thus, no error was committed as to this issue.

AFFIRMED.

SHORES, J., concurs.

BLOODWORTH, J., with whom TOR-BERT, C. J., joins, concurs specially.

JONES, J., concurs in the result.

MADDOX, ALMON, EMBRY and BEATTY, JJ., dissent.

BLOODWORTH, Justice

(concurring specially).

Although I concur in Mr.. Justice Faulkner’s opinion, I would like to add these comments of my own.

For over 90 years the following two propositions have been fully settled principles of law in this State.

1. A life tenant in the entire property and the remaindermen (owners of the fee) are not joint tenants or tenants in common and neither can bring an action against the other for the partition for sale for division of the property.

2. A life tenant in a fractional interest in the property and the other owner, of the remaining fractional life estate and the remainder, are joint tenants or tenants in common and either can bring an action against the other for the partition for sale for division of the property.

Gayle v. Johnston, 80 Ala. 395 (1885) (per Stone, C. J.); Shrout v. Seale, 287 Ala. 215, 250 So.2d 592 (1971) (per Coleman, J.); Brown v. Andrews, 288 Ala. 111, 257 So.2d 356 (1972) (per McCall, J.); Duncan v. Johnson, 338 So.2d 1243 (Ala.1976) (per Clark, S.C.J.).

Following are excerpts from the most recent decisions with respect to these rules.

“ ‘There must be a tenancy in common, not a separate ownership of distinct estates in the whole. So a life tenant of the entire property cannot maintain a bill against another owning the remainder in entirety. Kelly v. Deegan, 111 Ala. 152, 20 So. 378.
“ ‘. . .it must be regarded as fully settled that a life tenant in an undivided interest only may have partition, by sale if need be, although he have no interest in the reversion or remainder. Letcher v. Allen, 180 Ala. 254, 60 So. 828; Gayle v. Johnson [Johnston], 80 Ala. 395; McQueen v. Turner, 91 Ala. 273, 8 So. 863, and cases heretofore cited.’ Etheredge v. Etheredge, 219 Ala. 660, 661, 662, 123 So. 48, 49.”

Shrout v. Seale, supra.

“Under authority of Shrout v. Seale, supra, and the cases there cited and relied upon, we affirm our holding that a life tenant in a fractional undivided interest is entitled to a sale for division, and that a tenant in common who holds a fractional undivided interest for the life of another has the same rights as a life tenant with respect to a sale for division.”

Brown v. Andrews, supra.

“There seems to be no disagreement between the parties as to the following propositions of law. 1. The life tenant and the reversioner or remainderman are not joint owners or tenants in common, and neither can maintain a judicial proceeding against the other for a sale of the property for division for distribution of the proceeds of the sale. Code of Alabama 1940, Tit. 47, § 186; Bedsole v. Bedsole, 272 Ala. 589, 133 So.2d 237 (1961); Ganus v. Sullivan, 267 Ala. 16, 99 So.2d 204 (1957); Street v. Watts, 202 Ala. 622, 81 So. 564 (1919); Cobb v. Frink, 200 Ala. 191, 75 So. 939 (1917).
“2. A part owner of the estate for life and the owner of the reversion or remainder who also is a part owner of the estate for life are joint owners or tenants in common and each may maintain an action against the other for a sale for division for distribution of the proceeds. Ether- edge v. Etheredge, 219 Ala. 660, 123 So. 48 (1929); Letcher v. Allen, 180 Ala. 254, 60 So. 828 (1913); Gayle v. Johnston, 80 Ala. 395 (1885). Each of the immediately preceding propositions assumes that the property is not capable of being equitably partitioned or divided.”

Duncan v. Johnson, supra.

The reason for the rule permitting partition or sale for division between the life tenant in a fractional interest and the other owners is simply that these parties are joint tenants or tenants in common with respect to the life estate.

TORBERT, C. J., concurs.

JONES, Justice

(concurring in the result).

I concur in the result that the trial Court correctly allowed the widow’s petition for sale and division. At first I was inclined to the view of the dissent because, on initial reading of Fendley v. Lambert, 286 Ala. 179, 238 So.2d 346 (1970), I felt that the “special equitable reason” doctrine effectively barred sale and mandated partition in kind.

A more thorough study of Fendley, and the cases cited therein, however, discloses that I was overlooking one of the salient elements essential to give operative effect to this equitable doctrine: To allocate the proportionate shares in kind against the petition of a common interest holder for sale and division must not affect the salea-ble value of the residue. Lifting this rationale directly from Hall v. Hall, 250 Ala. 702, 35 So.2d 681 (1948), the Fendley Court observed:

“The trial court did not find and we do not think the evidence would support a finding that an allotment to the sisters, appellants, of one of the forty-acre tracts and of two of the city lots would probably affect the saleable value of the residue.” 286 Ala. at 182, 238 So.2d 349.

That the nature of the widow’s interest — a life estate — would affect the saleable value in her allotted share — 250 shares — is hardly debatable. Indeed, not only would the saleable value be affected, it would effectively deny her right of sale. See Mr. Justice Bloodworth’s special concurring opinion with which I concur except that I concur in the result only because I disagree with the majority’s application of the ore tenus scope of review rule. Mr. Justice Lawson, speaking for the Court in Fendley, correctly applied (or, perhaps more correctly, declined to apply) the ore tenus rule thusly:

“On the question presently under consideration, we are not concerned with the presumption of correctness attending the court’s findings of fact, heard ore tenus. The trial court apparently concluded that the offer made by the sisters, the appellants, to let their brothers, appellees, choose the half of the suit property which they considered the most desirable did not constitute a special equitable reason for allotting the other half of the property to the sisters. We disagree with that conclusion, not with a finding of fact made by the trial court.” 286 Ala. at 182, 238 So.2d 349.

Likewise, here, there are no disputed facts from which the trial Court made “findings.” Instead, the trial Court legally concluded, from undisputed facts, that the widow was entitled to the relief prayed for in her petition for sale and division. I agree to affirm because I agree with this legal conclusion and holding.

BEATTY, Justice

(dissenting):

I respectfully dissent.

Although in this state we have a history of allowing a sale for division of real property at the instigation of a life tenant against a remainderman, I think this practice has a poor foundation and consideration should be given to its abolition. Nevertheless, in this controversy, the right of the life tenant to require sale for division is not disputed, thus any discussion of that proposition would serve no purpose. However, there are other grounds upon which we should reverse this decision. A review of the facts will be helpful.

W. A. Hicks died testate. The relevant portions of his last will and testament are:

THIRD:
I give, devise and bequeath to my wife, DORIS LESTER HICKS, a life estate in and to a one-third interest in all of my property of every kind and nature, real, personal and mixed, except that herein-above referred to in Baldwin County, Alabama, provided that my wife shall receive one-third of the sale price of any property sold during her lifetime. In the event my wife should remarry before the disposition or sale of any of the said property, then in that event, her interest in the said property is advised and bequeathed to my two daughters, Cherry Hicks Bryant and Sally Hicks, share and share alike. (Emphasis supplied.)
FOURTH:
All of the rest, residue and remainder of my property of every kind and nature, real, personal and mixed wherever situated, I give, devise and bequeath to my daughters, Cherry Hicks Bryant and Sally Hicks, share and share alike.

The testator owned an undivided one-half interest in certain lands in Pike and Cren-shaw Counties. The Crenshaw County property aggregate is 1405 acres, more or less, and the Pike County property is 36 acres, more or less. These properties are the subject of this controversy. The remaining undivided one-half interest in the lands is owned together by the other defendants. Ida Hicks, J. W. Wise and Lilel-len H. Wise, trustees of trusts created in the last will and testament of Steve H. Hicks, deceased, own an undivided one-fourth interest and Lilellen H. Wise owns an undivided one-fourth interest. The parties stipulated that the life estate in plaintiff in any 240 acres of the entire tract would be less than one-sixth of the value of the entire tract.

Plaintiff, the widow of W. A. Hicks, sought in this suit to have the entire 1441 acres sold for division because, she alleged, the property could not be equitably divided or partitioned among the joint owners and tenants in common. The defendants through counterclaim alleged that the lands could be equitably partitioned in kind without a sale. The defendants also elected to treat their several undivided interests or moieties as an undivided interest or moiety and they agreed to allow the plaintiff to select from all the lands that portion in which she is entitled to a life estate. This offer would allow the plaintiff to take her life estate in the most desirable portion of the lands and leave the less desirable portion to the defendants.

After trial the circuit court held that all of the property in dispute was jointly owned by plaintiff and defendants as tenants in common. The court also found that the property could not be equitably divided or partitioned in kind and that the plaintiff was entitled to a sale of the lands. The defendants have appealed.

This case is controlled by Fendley v. Lambert, 286 Ala. 179, 238 So.2d 346 (1970). That case involved the sale of land for division by four brothers against four sisters, all of whom were fee interest holders. The dispute included two forty-acre tracts and four town lots which were owned as an undivided one-eighth interest by each of the brothers and sisters. The sisters offered to do equity by allowing the brothers to choose one of the forty-acre tracts and any two of the four town lots. The trial court, finding that none of the parties had any special equity in any portion of the land, held that it could not be partitioned in kind and decreed that it all be sold for division. This Court reversed the decision of the trial court and observed:

. . . we feel that the fact that the sisters have indicated a willingness for their brothers, the appellees here, to choose either the east forty or the west forty of the eighty-acre tract and to choose the two lots in Andalusia which they deem the most desirable constitutes a ‘special equitable reason' for authorizing the court to allot to the sisters the forty and the two lots in Andalusia which the brothers do not want and to order that the other forty and the other two lots which the brothers choose be sold for division in accordance with the expressed desire of the brothers, as expressed in their, averment that the suit property cannot be divided in kind. (Emphasis supplied.)
In Anderson v. Anderson, 281 Ala. 574, 576, 206 So.2d 586, we affirmed the action of the trial court allotting certain lands to complainants and ordering the remainder of the land sold for division. The opinion does not show what special equitable reason existed for having the complainants’ share ‘carved out’ of the whole. But it does not appear that it was because they had made improvements thereon. In Anderson v. Anderson, supra, we said: ‘Our cases on this point hold that “each case must be judged on its own merits”. Washington v. Phillips, 257 Ala. 625, 60 So.2d 337.’ (Emphasis supplied.)

In Anderson, supra, all five of the parties were tenants in common and had taken from a common ancestor. The complainants were seeking a partition of 160 acres of land. The respondents denied that the property could be divided in kind and asked for a sale of the entire property and division of the proceeds among the parties. In allowing a partition for division instead of a sale the Court observed:

. The contention made by appellants is that the court erred in finding in this case that the complainants had established a ‘special equitable reason’for having the portion allotted to them in kind.
Our cases on this point hold that ‘each case must be judged on its own merits.’
Here the court found that the complainants had shown a special equitable reason for having the share carved out and further found that by so doing, the saleable value of the balance was not affected. . . . (Emphasis supplied.)

That Court also cited Hall v. Hall, 250 Ala. 702, 35 So.2d 681 (1948) which discussed the concept of a special equitable reason. The Hall Court did not find that appellant was entitled to allotment in kind because he made no improvements and there was no other special equitable reason for allowing division without sale. However, the Court did state:

We believe that the broad powers given by statute to a court of equity to be pursued on equitable practices would justify the court in allotting a part of the land to one tenant in common if he has improved it or there is some other special equitable reason for doing so, and if to do so would not affect the saleable value of the balance, and that the balance could then be sold if it could not be equitably divided without a sale. . . . (Emphasis supplied.)

The Fendley case clearly applied the concept of a special equitable reason for allowing partition in kind of lands rather than requiring a sale for division. In this present controversy, the defendants’ offered plaintiff her choice of any one-sixth parcel for her life estate. If Fendley were applied to this case, only that portion of this property which represents plaintiff’s interest would be ordered sold, that is, so much according to her own selection as her life estate in one-sixth of the property represents. In Fendley, all of the lands were not required to be sold, only the plaintiff’s separate interest was required to be sold. That should be the order in this case. This follows because there is a total failure of the proof required for a sale for division. To obtain such a sale, the plaintiff must prove that the land cannot be equitably divided. The majority cites the ore tenus rule as a basis for resolving that question, but that rule is inapplicable because it applies to issues of fact, not to errors in the application of law, as occurred here. The offer of these defendants, as we have noted, to allow the plaintiff to select her portion from any part or parts of the real estate clearly establishes that the land can be divided. This is the defendants’ “special equitable reason” which would justify allotment to plaintiff without a sale of the entire premises. The majority opinion avoids considering the effect of the defendants’ offer upon the plaintiff’s burden of proving that an equitable division of the land cannot be made. Even in Fendley, where all of the parties were fee holders, the Court did not require sale of the entire property because of the offer to allow a selection to the plaintiffs. It follows with a stronger reason that the plaintiff here, a tenant whose life estate is defeasible, should not be allowed to require a sale of the entire property because of a like offer.

The argument by Mr. Justice Jones in his concurring opinion, that partition in kind will adversely affect the saleable value of plaintiffs share and effectively deny her right of sale is simply erroneous. The sale-able value of plaintiff’s share, if affected, will be increased by her unfettered choice of the most desirable land as her life estate share. A partition in kind in no way restricts the plaintiffs right to sell her interest in her life estate. A division in kind of plaintiffs life estate, on the other hand, will leave all the parties in equally equitable positions. Furthermore, if the defendants are required to prove that the saleable value of the residue will not be adversely affected, the effect of this is that the burden of proof (for a sale) will be shifted improperly to the defendants.

The majority states that denying the proceeds of the sale to the plaintiff is an inequity which will prevent a partition. This argument rests on the erroneous assumption that the widow has a fee interest. But the plain language of this will never gave the widow a fee interest in the land. It simply states that if the land is sold she should get her equivalent interest in money. How would a partition of the life estate in kind destroy the widow’s right to share in the proceeds of the land if it is sold? To allow this plaintiff to force a sale for division under these circumstances would defeat the plain intent of the testator who obviously preferred to limit her interest which, under the terms of the will, is not a fee interest. And by allowing the plaintiff to compel the sale of the rest of the property, the remaindermen’s interest is reduced. This is so because the trial court’s order, allowing sale, gives the widow the equivalent proceeds that each of the two remain-dermen, who are fee holders, will receive. This effectively reduces the remainder-men’s interest. Although she does not have a fee interest, the widow is attempting to convert her life interest into a fee simple interest through the proceeds in this action. This result defeats the provisions of the will and denies to the defendants substantive due process of law.

For these reasons, I would reverse and remand the decision of the trial court.

MADDOX, ALMON and EMBRY, JJ., concur.

On Application for Rehearing

FAULKNER, Justice.

The application for rehearing is overruled.

MADDOX, Justice

(dissenting).

I would grant rehearing.

The Court has very carefully considered this case, and it is unfortunate that there is disagreement in the result, because each member of the Court apparently agrees that the burden of proof is upon the person seeking a sale for division to show that the land cannot be partitioned in kind.

That burden was not met in this case, in my opinion, and the plurality and concurring opinions do not address how plaintiff met her burden of proof, especially since she was offered the right to select any 240 acres. The plurality opinion does state that “After reviewing the record, we find that the decree of the lower court is well supported by the evidence.”

The plaintiff, who had been on the property only twice, did testify on direct:

“Q. Do you have an opinion, Mrs. Hicks as to whether or not this property that is the subject matter of the present suit can be equitably partitioned without a sale of it?
“A. That is can it be divided up into tracts having equal value?
“A. Will you repeat that again?
“Q. I said in your opinion is there any way to equitably divide this land up into tracts having equal value in relationship to the number of interests that are outstanding?
“A. In my opinion, no.”

The question and her answers beg the question, in view of the offer to allow her to select any 240 acres. This offer obviously would allow her to select any 240 acres, whether the 240 acres she selected were of equal or unequal value. On cross-examination, she said that her opinion that it could not be equitably divided was based upon the fact that “[I]t would be kindly hard to divide land so many ways . . .” and “[I]t would be hard to do.” She further testified on cross-examination:

“Q. And you are basing that opinion on dividing it into six parts of equal value?
“A. Yes, it would be hard to divide the land six ways of equal value.” [emphasis supplied].

I believe the majority of this Court should grant rehearing and at least point out, from the record, how plaintiff met her burden of proof to show that partition was inequitable.

ALMON, EMBRY and BEATTY, JJ., concur.


source: Caselaw Access Project

author: EMBRY, Justice.

license: Public Domain

text:
    Earl DURDEN, d/b/a Earl Durden Signs v. FURNITURE FAIR OF DOTHAN, INC., a corporation.
    SC 2389.
    Supreme Court of Alabama.
    Aug. 19, 1977.

      J. Huntley Johnson, Dothan, for appellant.
    L. Andrew Hollis, Jr., Enterprise, for ap-pellee.
   EMBRY, Justice.

This is an appeal by Earl Durden, d/b/a Earl Durden Signs, from a judgment ordering specific performance of a contract for the breach of which he has recovered damages of Furniture Fair of Dothan, Inc., a corporation, in a prior action.

On 10 September 1975, Durden filed an action, prior to filing this one, against Furniture Fair for breach of a written contract by the terms of which Durden was to fabricate and erect a sign for Furniture Fair for a consideration of $3000. The issues framed by the pleadings were whether Furniture Fair wrongfully repudiated the contract; whether Durden had procured it by fraud; whether it was entered into by mistake; whether it was a conditional contract to take effect upon the happening of a subsequent event which failed to happen; and whether, if Durden was guilty of fraud, Furniture Fair was entitled to recover on its counterclaim. After trial, on a jury verdict, judgment was entered in behalf of Durden and against Furniture Fair in the amount of $3,090; on 31 March 1976 a motion for new trial was denied;

This action was filed on 8 April 1976; it sought to compel Durden to perform the contract for the breach of which he had recovered judgment against Furniture.

Durden asserts defenses based upon res judicata estoppel because of Furniture Fair’s denial of the existence of a valid contract in the former action; and Furniture Fair’s lack of clean hands in seeking equitable relief when avoiding payment of the prior judgment and not tendering payment to Durden or depositing same with the trial court (The record shows the judgment was paid after this suit was filed). After trial, without a jury, the court below entered this judgment:

ORDERED, ADJUDGED AND DECREED BY THE COURT that the Defendant, Earl Durden, fabricate the 6 ft. by 14 ft. sign reading “Furniture Fair” which sign is the subject matter of the contract between Plaintiff and Defendant dated July 30, 1975, and then deliver said sign to the Plaintiff at its business location in Dothan, Alabama. The Defendant shall not be required to perform any other terms of the said contract.”

May one who has been sued for breach of contract, repudiates it, and denies its validity on the basis it was the result of fraud or mistake in its procurement later compel specific performance of that contract? This is the issue.

The controlling principle of law dictating the decision in this case is that a party who has not shown such a performance of, or willingness upon his part to comply with, the terms of a contract within a reasonable time may not compel performance by the other party to the contract. Cooper v. Cooper, 201 Ala. 477, 78 So. 383. The record contains ample evidence to show that Furniture Fair repudiated the contract almost immediately after it executed it; when sued it denied the validity of it and counterclaimed for damages for the alleged fraud of Durden in procuring its execution. In the prior action, a jury resolved the issues against Furniture Fair; it would now seek to benefit from the breach by compelling Durden to perform. This it cannot do.

Specific performance cannot be enforced in favor of a party who has not fully and fairly performed all the conditions precedent on his part to the obligation of the other party. Tit. 9, § 57, Code.

Although raised on this appeal in an oblique way, the issues of res judicata or estoppel by judgment need not be reached. They were not addressed below with precision; by pleadings or trial. To adjudicate them here would necessitate writing to Rule 13(a), ARCP, in a less than ideal setting. Better to await a case where those issues are squarely presented and the Rule directly pleaded.

The judgment is reversed and the ease remanded for entry of judgment consistent with this opinion.

REVERSED AND REMANDED.

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


author: BEATTY, Justice.

text:
    OLD SOUTHERN LIFE INSURANCE COMPANY v. Ocie T. WOODALL et al.
    SC 2080.
    Supreme Court of Alabama.
    Aug. 26, 1977.

      Kenneth L. Funderburk, Phenix City, Ed-mon L. Rinehart, Montgomery, for appellant.
    C. Neal Pope, Phenix City, for appellee.
   BEATTY, Justice.

This is an appeal by the defendant from a judgment for the plaintiff based upon a jury award of $25,000. We affirm.

The facts of this case are reported in Old Southern Life Insurance Co. v. Woodall, 295 Ala. 235, 326 So.2d 726 (1976). On the first trial, we reversed the decision and remanded the case for deficiencies pertaining to two of the three claims for relief.

Thereafter the defendant amended its answer by alleging additional defenses: (1) By paying Six Hundred Thirty-Seven and 20/100 Dollars into court for the plaintiff, it discharged its duty under its policy for the confinement of Etta W. Woodall from May 27,1973 to June 16,1973, and June 30,1973 to July 10, 1973; (2) Its payment into court of all money due under its policy barred plaintiff’s cause of action; (3) Not guilty; (4) A denial of any false representations to plaintiff or of ever intending not to pay claims of Etta W. Woodall; (5) That the two claims in question were denied because of a pre-existing heart condition, and that the defendant determined in good faith that the admissions of May 27, 1973 and June 30, 1973 were primarily related to the pre-existing heart condition; and (6) That plaintiff knowingly gave false information to defendant which was relied upon by defendant in issuing the policy, and therefore, the policy was void. Following the filing of this amended answer, defendant filed a motion for summary judgment, based upon the pleadings and upon the payment into court of what defendant termed the full sum of money due under the policy. This motion was denied.

Then, with the trial court’s permission, the plaintiff amended his complaint. It is helpful to recall that in the original complaint the second theory of relief charged fraud of the company by making fraudulent and false representations which induced plaintiff to pay premiums on the policy after the claims were denied. In his amended complaint plaintiff averred that between November 1, 1972 (the date of the contract) and prior to September 11, 1973 (the date of the denial letter pertaining to the second claim) the defendant negotiated with the plaintiff “concerning the continuation of the contract of insurance in force and the payment by MR. WOODALL of renewal premiums for the contract.” It charged that:

20. At that time Defendant COMPANY represented to MR. WOODALL that the Defendant COMPANY would pay to. MR. WOODALL substantial sums of money toward the costs of medical expenses incurred by MR. WOODALL resulting from the Hospitalization of MRS. WOODALL for pneumonia and other conditions.
21. The representations made by Defendant COMPANY were false and Defendant knew they were false.
22. MR. and MRS. WOODALL believed the representations made by Defendant COMPANY and in reliance upon them paid the renewal premiums and purchased the renewed contract of insurance.
WHEREFORE, Plaintiff demands Judgment against Defendant COMPANY in the sum of $1,000,000.00 for compensatory and punitive damages.

Without attempting to fully repeat what was stated in our earlier opinion, it was plaintiff’s theory then, and in this second trial, that having evidence upon which the company might have been able to terminate the policy on the ground of false statements in the application, the company based its denial of benefits on an entirely different reason, and with such knowledge fraudulently induced the plaintiff to pay premiums when it had no intention of paying any claims of Mrs. Woodall.

The defendant on appeal argues in a number of his designated issues that the trial court erred because he instructed the jury upon a different cause of action than that “approved” by this Court on the first appeal. Such an argument misconstrues our language. What we stated, and all that we stated, was:

We hold, therefore, that the second theory sued on stated a claim upon which relief could be granted. There was at the very least a scintilla of evidence to support that claim. The trial court, therefore, did not err in submitting the second claim to the jury.

The fact that we found no error in the trial court’s holding which found that the second theory stated a cause of action upon which relief could be based was not the equivalent of an “approval” of an allegation which denies other similar allegations in a subsequent trial. Nothing in that language remotely- suggested any limitation upon the plaintiff’s freedom to state whatever viable action he might prove, and indeed, under Rule 15, ARCP, that right is provided him. Moreover, we have compared the allegations of the causes of action on fraud alluded to in our original opinion, and contained in both the original and the amended complaints, and we find that they allege the same cause of action. See Rudman v. Hooks, 252 Ala. 280, 40 So.2d 866 (1949); Tit. 7, §§ 108, 110, 111, Alabama Code. This was the cause of action upon which the trial court gave an extensive instruction to the jury, which we deem correct:

What do we mean by ‘fraud?’ I might define it generally to mean there must first have been a willful representation on the part of the defendant in this case in order to charge the defendant with legal fraud. First, you must find or reasonably believe from the evidence there was a willful misrepresentation to Mr. Woodall at the time this letter, Plaintiff’s Exhibit No. 4, was written to him; further, that at the time they wrote this letter which is the basis for that misrepresentation, that they did so with the intent to induce Mr. Woodall, after receiving this letter, to continue to pay premiums under the terms of the policy; further, there would have to be found as a fact in this case that Mr. Woodall did in fact pay additional premiums and that he was induced to make such payments in reliance on the false, willfully false, misrepresentation made in this letter to him; and that in doing so he acted to his own injury, that he did in fact pay out additional premiums; that the company either had a right never to collect because they could have canceled it, or they could have offered a return of his premiums, if they wished to do so, but that he did in fact pay out some additional premiums before that thing finally was allowed to terminate. You would have to be satisfied, then, at least of that as a very minimum before a person charged with legal fraud could be found guilty of such legal fraud. It has got to be a willful misrepresentation of a material fact as being true. It would be for you to say whether or not this letter does willfully misrepresent a true fact. And you have got to as a further result, as I said, find that after the receipt of that letter Mr. Woodall was induced to make his next premium payment or payments, if in fact he made any such payments — but that is a question of fact for you — and that he did act so to his own injury and he had no knowledge that this statement was false in any way.

Next, the defendant contends that the trial court erred by removing from the jury’s consideration the fact that the defendant . . has now, ever has, or ever will make any payment under the claim filed by Mr. Woodall, either the first time or the last time.” It should be pointed out that the trial court, in that connection, added: “This is not an action to recover certain sums which the plaintiff contends were due under the contract entered into between these parties.” And later, after defining the tort, added:

I have allowed the fact that tender of payment has been made, however, to come before you for the purpose of your consideration as to whether or not there has actually been any fraud on the part of the defendant.

Describing these instructions as imposing a novel theory which also led to the erroneous refusal of three of its requested charges, the defendant maintains that this position effectively cuts off its only true defenses, full payment under the contract, and denial of claim under the contract’s provisions. We cannot agree with defendant’s contentions. Payment of or satisfaction under the contract is not a defense to an action for fraud after that right of action has accrued. Berry v. Wooddy, 16 Ala.App. 348, 77 So. 942; cert. den., 201 Ala. 698, 78 So. 988 (1918).

Defendant has cited us to the ease of Pihakis v. Cottrell, 286 Ala. 579, 243 So.2d 685 (1971), as authority for the proposition that the payment into court by the defendant should have been considered by the jury in “mitigation of damages,” and that it was error for the trial court to fail to so instruct in his oral charge.

It is true that an amount which a party receives as compensation for his injury is applicable to reduce his damages recoverable from a tortfeasor. Anderson v. Kemp, 279 Ala. 321, 184 So.2d 832 (1966). Such proof does not, however, in any way defeat the victim’s right to recover his damages. So that in this case, the plaintiff was entitled to recover any actual damages claimed and sustained by the fraud committed upon him, notwithstanding the payment into court of sums based upon the contract out of which the fraud arose. His acceptance of those sums, to be sure, would have mitigated any recovery he would have been entitled to based upon breach of contract. But the mere tender of those sums in satisfaction of the defendant’s contract obligation did not mitigate plaintiff’s right to recover any compensatory damages claimed and proved for fraud, or punitive damages should they have been applicable. Pihakis itself lends support for this view. In that case, the defendant contended that after the alleged fraud had occurred, the plaintiff had received deeds and a check covering their recording costs, which would place the plaintiff in the same position she occupied before the alleged misrepresentation took place. While acknowledging that this evidence was admissible to reduce the plaintiff’s recovery, the court noted that it would not defeat plaintiff’s right to recover. Ibid., 286 Ala. at 585, 243 So.2d 685. Here, plaintiff’s compensatory damages recoverable, if alleged and proved, would consist of the money he was induced to part with, his premium payments, and punitive damages should malice, wilfulness or aggravation have been shown. Thus, the tender by the defendant of any sum under a supposed satisfaction of its contract obligation, and of which plaintiff testified he was unaware, would not mitigate the plaintiff’s damages claimed on account of defendant’s fraud. By tendering the sum of money into court, therefore, accompanied by the allegation that it was all the money due under its policy, defendant was not mitigating plaintiff’s damages, but apparently was simply seeking to reduce the amount of damages it might be caused to pay by virtue of the plaintiff’s claim of fraud.

Moreover, our examination of the record reveals that of the fifty-eight jury charges requested by the defendant, not one considered the subject of mitigation of damages. But in an excess of caution we have also searched the record for any additional or corrective requests. Rule 51, ARCP, accordingly, would preclude consideration of that subject on appeal. The record shows that after the oral charge was completed, counsel for the defendant discussed one aspect of it with the trial court, but made no objection to the lack of any charge on mitigation of damages, nor did counsel request any additional charge on that subject before the jury retired.

Appellant also maintains that the trial court erred in submitting the issue of compensatory damages to the jury. He also apparently contends that punitive damages should not have been awarded because there was no proof of actual damages.

In his amended complaint, plaintiff alleged that “Mr. and Mrs. Woodall . paid the renewal premiums” . . . and demanded judgment “for compensatory and punitive damages.” In his pre-trial order, the trial court described the nature of the case:

Plaintiff claims of the defendant the sum of $1,000,000.00 as punitive damages for false representations which he contends were made to him by the defendant and resulted in inducing the said plaintiff to continue to pay premiums
defendant further denies that any fraud was committed on its part in continuing to collect any premiums.

This order was made subject to further modification by the court.

The record shows that plaintiff paid a premium in the amount of $72.00 after he received the second letter of rejection from the defendant. In that part of his oral charge to the jury as damages, the trial court stated:

. Did they give him the wrong reasons for it? And as a result of giving him the wrong reasons for it, thereafter continued to collect premiums because Mr. Ocie Woodall, in reliance upon that representation, thereafter continued to pay premiums? Those are the damages which would be complained of as it would arise out of the complaint in this case. Did he in fact . . pay any additional premiums? If so, how much? . The only issue insofar as any damages might be concerned, that could even possibly be called compensatory, which are involved, are only such premiums as he paid after this date .

Following completion of his oral instructions, a side-bar conference occurred between court and counsel. Defense counsel objected to that portion of the instruction dealing with compensatory damages:

. We feel like the pre-trial order, as well as the statements of counsel in his closing statement, limited this case strictly to punitive damages,
THE COURT: I think under the evidence I would have to let it go on [in], if they can find any fact — maybe one $70.00 payment was made, I don’t know as to that, based on the evidence.
. His only compensatory damages under this are such premiums as were paid after he got the letter.

Upon the pleadings and the evidence we believe the trial court was correct in his instruction to the jury respecting the payment of premiums by the plaintiff after the alleged fraudulent representations. Contrary to the statements of defense counsel who claimed surprise at the claim for compensatory damages, the complaint itself referred to such damages. The plaintiff’s evidence proved entitlement to compensatory damages for the one premium payment, and the law allows such a recovery in an action based upon fraudulent representation. Insofar as the pre-trial order was concerned, the plain language of Rule 16 recites: “. . . and such order when entered shall control the subsequent course of the action, unless modified at the trial to prevent manifest injustice.” [Emphasis supplied.] The trial court’s action in charging the jury on compensatory damages was consistent with the authority given him by that language.

We agree with the defendant that damage to the plaintiff is an essential element of fraud. Pihakis v. Cottrell, supra. But that damage was shown here by the evidence of plaintiff’s payment of the $72.00 premium following the alleged misrepresentations. This proof of actual pecuniary loss from the fraud would support an award of compensatory damages. Mid-State Homes, Inc. v. Johnson, 294 Ala. 59, 311 So.2d 312 (1975); Alabama Great Southern Railroad Co. v. Sellers, 93 Ala. 9, 9 So. 375 (1891).

To recover punitive damages in an action based upon fraud and deceit, the plaintiff must prove entitlement to nominal damages, but in such actions nominal damages are equated with actual damages. Ringer v. First National Bank of Stevenson, 291 Ala. 364, 281 So.2d 261 (1973). Plaintiff’s evidence, as noted above, clearly demonstrated actual damage. He also bears the burden of proving that:

. the fraud is of the character described in Alabama Great Southern Railway [sic] Co. v. Sellers, supra [93 Ala. 9, 9 So. 375: ‘acts . . . which involve malice, wilfulness or wanton and reckless disregard of the rights of others’] . [Mid-State Homes, Inc. v. Johnson, supra].

Such an award is discretionary with the jury, acting in response to the enormity of the wrong and the necessity of preventing similar wrongs. Loch Ridge Construction Co., Inc. v. Barra, 291 Ala. 312, 280 So.2d 745 (1973). The trial court’s oral charge on the issue of punitive damages correctly stated these principles.

With respect to defendant’s refused charges and posttrial motions which dealt with the sufficiency of the evidence, we need only refer to what this Court stated in its opinion on the first appeal:

. The failure of the company to base its denial on this ground, and rather its basing the denial on the ground that the condition for which she was hospitalized was one which had occurred less than six months after the policy was issued, and was therefore excluded, is evidence from which the jury could have found that the company fraudulently and with intent to deceive Mr. Woodall continued to accept premiums on the policy, having in its possession from the time the first claim was submitted information which would permit it, on proper proof, to completely terminate all coverage under that policy. This clearly was evidence from which the jury could have found that Mr. Woodall was fraudulently induced to continue paying the premiums on the policy, the company having no intention when it accepted such renewal premium to pay any claims on the policy insofar as Mrs. Woodall’s confinements were concerned.

That was the state of the evidence in this second trial. Accordingly, the case was properly one for the trier of fact. Loch Ridge Construction Co., Inc. v. Barra, supra.

Defendant also complains of a purported error by the trial court in failing to grant a mistrial, or a new trial, based upon improper argument of counsel. As our decisions have expressed on numerous occasions, this is a matter which must be left to the enlightened judgment of the trial court, and we have given his rulings the benefit of presumptions of correctness. St. Clair County v. Martin, 273 Ala. 302, 139 So.2d 617 (1962). And to reverse on this ground we must be able to conclude that substantial prejudice has resulted. Adams v. State, 291 Ala. 224, 279 So.2d 488 (1973).

We have considered the twenty-nine record pages of oral argument, and taking into consideration the nature of the action and its evidence, we cannot state that substantial prejudice existed if, indeed, any was shown. Counsel for the defendant contends that the following references made in argument could not be eradicated:

1. That this situation is like Watergate. Now what the record actually shows that plaintiff’s counsel stated is:

The whole thing comes down to this. This letter was written and it cannot be changed because the written pen stays there indefinitely. No big deal. It wasn’t at the time. Like Watergate, just a little thing that can be squshed [sic], no problem.

This analogy of the defendant’s alleged conduct as a small thing which could not be later changed, to the Watergate scandals, which common knowledge reveals as involving similar deceit, was simply a comment on the nature of the evidence.

2. That Old Southern does not pay its claims. The record reveals this argument by plaintiff’s counsel:

. But you know and I know that there are insurance companies that you have dealt with and I have dealt with and we deal with every day that pay their claims. We are talking about one company that doesn’t. .

This also appears to us to be fair comment upon the evidence. Plaintiff’s entire theory of action was that the defendant fraudulently refused to pay his claims.

3. That this was a flim-flam. Plaintiff’s counsel actually stated: “This man has been the victim of a flim-flam. . ” That word is defined in Black’s Law Dictionary, (4th ed. 1968), p. 768 as “ . . .a form of bunco or confidence game.” A bunco game is therein defined as “Any trick, artifice, or cunning calculated to win confidence and to deceive, whether by conversation, conduct, or suggestion.” Appellant counsel’s shock at the use of this word is a personal commendation for him, but its use only calls attention to the range of Machiavellian conduct in this wicked world, and thus to a form of conduct which the jury could have found present in the evidence.

4. That the defendant had a stack more lawyers other than the three present in court. What the record reveals is:

. I will take nothing away from these defense lawyers, all three of them, they have done a super job, and they have got a stack more of them back there backing them up.

The trial court sustained objection to this statement, overruled a motion for a mistrial, but admonished the jury to “disregard that statement about ‘stacked behind,’ whatever it may refer to.” We cannot conclude on the record that his allusion amounts to substantial prejudice to the defendant.

5. That there was some fiduciary relationship between the parties. This portion of the argument is recorded as follows:

Now, what are we talking about here? We are not talking about the same thing here as a person who is involved in an automobile accident and makes a claim against a third person — a second person’s insurance company. This man is in a fiduciary relationship with the defendant. Now, I mean by a fiduciary relationship—
MR. FUNDERBURK: We object to that. That is not a correct statement of the law.
THE COURT: At this point, overruled.
MR. POPE: This man is in a contractual direct relationship with that defendant. That defendant owes him a high duty. It owes him a much higher duty than an insurance company would owe somebody who had a wreck with one of their insureds, because that party making the claim is a third party, he pays no premium. They are in an adversary position to begin with, they are disagreeing over the amount owed. But in this case that’s their insured. That is the man there (indicating) that they have promised to take care of. That is the man, right there, that they are to look after and to give fast, quick, courteous, and fair service to. So we have got a different situation there. .

In the context of the case, it is possible that counsel was attempting to describe the factual relationship between the parties arising from their contract, and that this was the reason he used the word “fiduciary.” It could have been intended as a comparison, or an illustration. It is not, therefore, a necessary conclusion that his statement was an incorrect statement of law as objecting counsel maintained. In any case, in view of the fact that no reference to any such duty was made by the trial court in his charge on the applicable law to the jury, we fail to ascertain how this equivocal reference could have substantially prejudiced the defendant. Cf. Louisville and N. R. Co. v. Cunningham Hardware Co., 213 Ala. 252, 104 So. 433 (1925).

6. That this is one of the “companies that will take advantage of their power and their position over some poor man with a sixth grade education.” The record discloses that counsel stated: “ . . . I’m talking about the companies. . . . ”

What we have stated in connection with numbers 1, 2, 3 and 5 applies to this part of the argument complained of. Also, considering that the nature of the charge was a deceit, the inquiry into the element of inducement of the victim necessarily would subsume whether he could have been induced. There was evidence of the plaintiff’s age, educational background, and inability to read well. In actions for fraud and deceit, great latitude is allowed in the scope of the evidence introduced, Tuscaloosa Truck and Tractor Co. v. Stewart, 37 Ala.App. 279, 67 So.2d 844; cert. den., 259 Ala. 528, 67 So.2d 846 (1953); May v. Strickland, 235 Ala. 482, 180 So. 93 (1938), and the argument permitted is determined by the nature of the evidence admissible to prove such an offensive charge. In view of this evidence, together with the nature of the action, we cannot conclude that it was substantially prejudicial to the defendant to permit this argument. Cf. Southern Railway Co. v. Jarvis, 266 Ala. 440, 97 So.2d 549 (1957).

There being no error requiring a reversal, the judgment of the trial court is due to be, and is, affirmed.

AFFIRMED.

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


text:
    INTERNATIONAL MOLDERS & ALLIED WORKERS UNION, AFL-CIO-CLC, et al. v. ALICEVILLE VENEERS DIVISION, BUCHANAN LUMBER BIRMINGHAM, a corporation.
    SC 2119.
    Supreme Court of Alabama.
    Aug. 26, 1977.

      George C. Longshore of Cooper, Mitch & Crawford, Birmingham, for appellants.
    P. M. Johnston, Aliceville, W. Melvin Haas, III of Fisher & Phillips, Atlanta, Ga., for appellee.
   BEATTY, Justice.

This is an appeal from the grant of a preliminary injunction based upon circumstances which arose out of a labor dispute. We reverse.

The plaintiff operates a plant in Alice-ville. Some of its employees began a strike against the company during the early morning hours of September 13, 1976. That same day the plaintiff petitioned the Pick-ens County Circuit Court for a temporary restraining order, naming the International Molders & Allied Workers Union, AFL-CIO-CLC, and H. H. Key, its special representative, as defendants. After describing the defendant union as the certified employees collective bargaining representative, this petition alleged that the defendants had called the strike and had “established pickets at all of the entrances at Plaintiff’s Aliceville facilities.” These, it alleged, at various times on September 13 had been joined with “other persons” to aggregate thirty, and to congregate on the Baptist Line Road where they blocked ingress and egress at the plant. Some pickets, it alleged, were standing on the road so that an employee had to turn his car around in order to come in another entrance to work. It also alleged “other incidents of threats of violence, mass assembling, trespass, blocking ingress and egress” to have occurred. In support of these allegations, plaintiff submitted the affidavits of three persons, but as we later explain, only the affidavit of Theodore Moore is relevant to this decision.

Moore’s affidavit recited that he had been stopped by a group of eight or nine people as he was turning his car into the company property. He recognized these people as company employees, and “many” of them were “telling me in a loud voice not to go to work but to join them on the picket line.” A “number” of them “said if I knew what was good for me I would not go to work at Aliceville Veneers,” or words to that effect. They also blocked his path so that he had to use another entrance to the plant property.

The petition for a temporary restraining order did not certify, as Rule 65(b) mandates, that the petitioner’s attorney had made any effort to give notice to the opposing party, or set out any reason why notice should not have been required. Nor was any security obtained. It did allege that the defendants’ acts violated Title 26, § 385, Alabama Code.

The trial court issued the temporary restraining order at 8:00 p. m. on September 13, 1976. It set the hearing for a temporary or permanent injunction for September 22, 1976. In issuing the order, that court found that injuries had already occurred and that “immediate and irreparable injuries to persons and property” would be done without the order. It ordered the defendants and all other persons acting in concert with them to refrain from:

(a) Mass picketing at or near the entrances, or from obstructing with the free ingress and egress at the plant;

(b) Preventing or attempting to prevent any person or vehicle from entering or leaving the facilities through violence, force, massing, picketing, threats, abusive or coercive language, or by any other means;

(c) Loitering or being unnecessarily near the points of ingress or egress of the plaintiff’s facilities;

(d) Maintaining more than two pickets at each of the plaintiff’s two entrances, and requiring that they be in motion, and spaced not less than twenty feet apart so as not to interfere with ingress and egress;

(e) Restricting all other picketing to the public road adjacent to the plant but not within 200 yards of each entrance;

(f) Using abusive or intimidating language to any person attempting to enter or leave plaintiff’s premises;

(g) Inflicting or threatening to inflict damage or injury to plaintiff or its agents, employees, or their families;

(h) Threatening, intimidating, coercing, harassing or interfering with plaintiff, or its agents, employees, or their families;

(i) Following plaintiff’s agents, employees or their families;

(j) Interfering with plaintiff’s employees’ right to engage in their lawful vocation.

In section three the trial court ordered:

The Sheriff and any other duly authorized police officer who witnesses a violation of this Order by any person shall forthwith arrest such person and bring him before me.

This order was extended by agreement of the parties until October 4, without prejudice to the defendants’ rights.

On October 1, 1976 the plaintiff filed an amended petition for a temporary restraining order, preliminary injunction, permanent injunction, and damages. This petition parroted the earlier petition except that it added the affidavits of Jessie Bonner and Ollie May Lewis (neither of whom testified at the hearing later) and it alleged that

. the plaintiff will not be able to fill orders on time and will thereby suffer immediate and irreparable injury, loss, or damage to its business and reputation in the business community as a supplier of wood and wood products.

Thereafter, the plaintiff filed its motion for a preliminary injunction, adopting the allegations of its earlier petition, and alleging that the defendants and those acting in concert with them had violated the restraining order by mass picketing, by threatening plaintiff’s employees, and by threatening the lives and safety of plaintiff’s employees to keep them from working. Plaintiff alleged that serious injury and damage would be caused plaintiff by a denial of the preliminary injunction. On that same day the defendants moved to dissolve the temporary restraining order for noncomplianee with Rule 65(b)(1) and (c), ARCP This motion was supported by an affidavit of Henry H. Key, a co-defendant and a special representative of the defendant union. He stated facts which tended to establish that his identity was well known to the plaintiff, its manager, its Atlanta lawyer, and that plaintiff or its representatives could have contacted him without difficulty in connection with the petition for the temporary restraining order.

Apparently this motion was not acted upon; as we have noted earlier, the T.R.O. was extended by agreement.

When the plaintiff’s motion for the preliminary injunction was heard, the plaintiff introduced the testimony of Robert Gibson, Theodore Moore, Bobby John Windham, Willie Lee Bonner, and H. H. Key.

Robert Gibson testified that he was working for Aliceville Veneers when the strike began about three weeks before, and that he was stopped by someone only on the evening he was leaving work, but after that no one said anything to him. The one time he was stopped was by Willie Seay at the forks of the road where the racket was going on. They exchanged a “Hi,” and Seay said “don’t go back to work,” and “I realize you have a family.” Gibson then drove his car away. Nobody bothered him before or since.

Theodore Moore was stopped by someone on the road as he went to work on September 13; that person said “don’t come in[,] pull aside and come on over here.” It looked like about fifteen or twenty people there on the road at the turnoff to the plant, on Baptist Line Road. All of them worked at the mill. He went around to the other road and went into the mill, although the road was passable and unobstructed. As he was pulling off, “some of them said if you know what is good for you, you will stay here.” Since that day no one had said anything to him or threatened him.

Next, Bobby John Windham, a deputy sheriff, testified that he was at the plant during the first week of the strike. He overheard Willie Seay say something to a plant employee coming to work. Seay was about ten feet off the main highway at the mill, and told the man that he “would pull the masonic sign off his car if he went in;” “did you know you had a family at home,” and “you know something could happen to them while you are out here working.” He knew that Willie Seay did not work at the Aliceville plant, but at Tuscaloosa somewhere. He did not arrest Seay. Windham added that during the past week he had seen groups of employees on strike within two hundred yards of the plant. On cross examination, Windham related that he had arrived at the plant about 8:00 (a. m.) on the first day of the strike, accompanied by Leon Morris, a night watchman for Alice-ville Veneers. That day there were about three or four deputies around the plant. He and the sheriff arrived about the same time, and other deputies, two or three, were there on and off, and Aliceville police passed up and down the road. Prom the beginning of the strike there was at least one deputy sheriff’s car assigned at the plant, sometimes more than one. He observed no fights or threats.

Willie Lee Bonner had a conversation with Willie Seay when she was going to work on the second day of the strike. She was at the entrance to the plant in the fork of the road; as her son drove in someone “hollered hay [sic], stop and he stopped.” A/7 the workers were standing in a group to one side of the road. Seay came up and said, “Miss Bonner, why do you keep, on going in there to work, why don’t you do us a favor?” She replied “Man I got to live,” and he replied, “so is us.” She then said, “Yea, well my son said don’t you know that this is going to be another day.” He said, “don’t you know there is going to be another day,” and I said, “So,” and I said “drive on son.” Seay spoke like if she “kept going in there something was going to happen. That is the way I got the feeling.” Nobody said anything to her after that second day.

H. H. Key identified himself as special representative of the International Molders & Allied Workers Union. He testified that Willie Seay was an employee of the local union of the State of Alabama but not an employee of the International Union. They are, he explained, separate unions although Seay’s union is affiliated with the International. Key did not give orders to Seay who worked for a local with an office in Tuscaloosa, but he represents various plants.

Following this testimony, plaintiff also offered only the previously filed affidavits of those whose testimony was also introduced, that is, the affidavit of Theodore Moore. The court, following arguments, granted the preliminary injunction, stating, inter alia, “We don’t think we will have too much trouble there if we can keep these outside agitators out of here . . . ” followed by a reference to Mr. Seay. It is unclear whether or not this was a factual finding that Mr. Seay was not a representative of the defendant union but acting on his own initiative.

The defendants pose three issues for our review:

(1) Whether the plaintiff met its burden of proving irreparable injury to its property in order to justify equitable intervention;

(2) Whether plaintiff pleaded and proved sufficient facts to justify the issuance of a preliminary injunction;

(3) Whether there was sufficient evidence of violence, or threatened violence, or mass picketing which unlawfully interfered with the plaintiff’s business to justify the issuance of the preliminary injunction. These issues are so closely akin that they may be condensed into one question: Whether there was sufficient evidence upon which the trial court could issue the preliminary injunction.

We note from the record that the strike itself ended, and all picketing ceased, on February 13, 1977. By virtue of these facts the plaintiff has moved this Court to dismiss this appeal and dissolve the injunction on the ground of mootness. The plaintiff’s motion must be overruled, however. Since we have found that the issuance of the injunction was inappropriate, there remains the question of the plaintiff’s liability to the defendants on plaintiff’s bond for costs, damages and reasonable attorneys fees.

There is no contention by the defendants that state action has been pre-empted by federal legislation, preventing the exercise by our state court of its injunctive power in such a dispute. That issue has been settled in favor of the state’s power. Thornhill v. Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093 (1940) (“The power and the duty of the State to take adequate steps to preserve the peace and to protect the privacy, the lives, and the property of its residents cannot be doubted.”); Baggett Transportation Co. v. Local No. 261, 259 Ala. 19, 65 So.2d 506 (1953).

In reviewing the action of a trial court which has granted an injunction, we do not overlook the presumptions attendant to such a court’s factual findings, Barnett v. Millis, 286 Ala. 681, 246 So.2d 78 (1971), nor the discretion reposed in determining whether to grant the injunction. Fowler v. Fayco, Inc., 290 Ala. 237, 275 So.2d 665 (1973). We recognize the difficulties confronting a trial court when called upon to weigh the constitutional rights and legitimate aims of labor organizations and their members against the interests of employers and others with whom these may conflict. It should be neither unexpected nor surprising that our own resolutions of those conflicting interests may differ, as they do in this case, as we perform our duty to explore the basis for the injunction granted here, for perhaps in these cases as in no others, the clashes of legal aims and legitimate interests frequently are incapable of being sharply distinguished, making judicial solutions arduous. Nevertheless, the injunctive process is a power to be exercised sparingly, Surratt v. N. L. R. B., 5 Cir., 463 F.2d 378 (1972); Bass Angler Sportsman Society v. U. S. Steel, D.C., 324 F.Supp. 412 (1971), and rarely granted on interlocutory applications, the exception being that:

. “the right of complainant must be clear and unmistakable on the law and the facts; and there must exist an urgent and paramount necessity for the issuing of the writ in order to prevent extreme or other serious damage which would ensue from withholding it.” . . . [City of Decatur v. Meadors, 235 Ala. 544, 546, 180 So. 550 (1938)] (Emphasis supplied.)

In situations arising out of labor disputes, injunctions have been issued following obstructions of entrance to a building, accompanied by physical force, Taggart v. Weinacker’s, Inc., 283 Ala. 171, 214 So.2d 913 (1968), and for interference with the right of one to conduct his business, American Radio Ass’n v. Mobile S. S. Ass’n, 291 Ala. 201, 279 So.2d 467 (1973). Even picketing, peaceful in itself, has been found a proper subject for such judicial control when accompanied by coercive or intimidating conduct threatening personal and property interests not capable of being protected by ordinary legal remedies. Local # 612, Int. Bro. of Teamsters v. Bowman Transp., Inc., 276 Ala. 563, 165 So.2d 113 (1964). The necessity for immediate injunctive protection to prevent irreparable harm is one reflection of the reluctance of a court possessing equity powers to determine either abstract questions or future rights. American Federation of State, C. & M. Emp. v. Dawkins, 268 Ala. 13, 104 So.2d 827 (1958).

In considering the propriety of this preliminary injunction, we must first point out that the earlier issuance of the temporary restraining order, and the affidavits supporting the petition seeking it, cannot be considered as creating any presumption favoring the subsequent grant of injunctive relief. Rule 65(b), ARCP, does not permit an ex parte T.R.O. without a certification in writing to the trial court showing the efforts, if any, made to give notice to the adversary, accompanied by reasons supporting his claim that notice should not be required. The plain language of this rule assumes that notice is prima facie required and is intended to allow the trial court a studied opportunity to weigh the effect of an absence of notice in deciding to grant or refuse such extraordinary relief. In addition, Rule 65(c) prevents such an order (“no restraining order . . . shall issue”) without bond or other security. Neither of these requirements was met. Both were subjects of the defendants’ motion to dissolve which was not acted upon, apparently because the parties agreed to continue the T.R.O. to October 4. It does not appear from the record that the motion was called to the court’s attention on the day of the hearing, October 4, and no error concerning its issuance is claimed on appeal. Nevertheless, the validity of the later injunction is not to be governed by the existence of the temporary restraining order which, had the motion been insisted upon, would have been subject to dissolution for the deficiencies identified. Rule 65 is procedural, not substantive. 7 Moore’s Fed.Prac., par. 65.-03[1](3). The temporary injunction must be weighed by its own pleading and proof.

In gist, the plaintiff alleged that the defendants:

(1) called the strike;

(2) established pickets at all entrances to plaintiff’s facility;

(3) that these pickets, with others, all numbering thirty, congregated to block ingress and egress at that plant;

(4) had committed other incidents of threats of violence, mass assembling, trespass, blocking of ingress and egress, threatening the lives and safety of plaintiff’s employees to keep them from working; and

(5) caused plaintiff to be unable to fill orders on time.

The evidence offered in support of these allegations falls short of establishing them.

Robert Gibson was stopped only one time, as he was leaving work, and that occurred on the first day, September 13, which was twenty-one days before the hearing. No one said anything to him after September 13. Willie Seay, the person who said to him, “don’t go back to work,” was not shown to have been an officer or a member of this union, or an employee; in fact the plaintiffs evidence is to the contrary. Seay’s statements to Gibson and the other employees, e. g., Willie Lee Bonner, could not be attributed to the defendants. While it was necessary for the plaintiff to show that the union in some active way had made itself a party to the strike, cf. United States Steel Corp. v. United Mine Workers of America, 5 Cir., 519 F.2d 1249 (1975), if Seay’s conduct was to be attributable to the union, evidence should have been introduced showing some authority to act for the union, or ratification of his acts. N. L. R. B. v. Urban Telephone Corp., 7 Cir., 499 F.2d 239 (1974); North American Coal Corp. v. Local # 2262, U. M. W. of America, 6 Cir., 497 F.2d 459 (1974); Vulcan Materials Co. v. United Steel Workers of America, 5 Cir., 430 F.2d 446 (1970).

Plaintiff’s evidence did not establish that any employee blocked ingress and egress from the plant, or that mass picketing occurred. Gibson left without serious incident. Moore and Bonner went to work. At the most, the way was only partially blocked. Additionally, it was not proved that all plant entrances were picketed. For that matter the evidence does not establish the total number of plant entrances, but even so, Moore and Bonner did not mention the presence of pickets at other entrances, but only those at the entrance near the Baptist Line Road.

Considering the allegations of other threats to the lives and safety of plaintiff’s employees, we note that Moore was the only witness who did not identify these as having been made by Seay. Moore did not describe the effect of these threats upon him, if they were threats, but it is significant that he was not deterred from working, and apparently he went undisturbed thereafter. These verbal abuses fall short of being demonstrations of impending violence and threats to personal safety. They appear, instead, to have been only “episodic and isolated instances of abuse falling far short of violence.”

. [t]he right of peaceful picketing to advertise a labor controversy cannot be taken away merely because in the course of the picketing there may have been episodic and isolated instances of abuse falling far short of violence. . . Hotel & Restaurant Employees v. Greenwood, 249 Ala. 265, 274, 30 So.2d 696, 701 (1947).

There was a total failure of evidence on the plaintiff’s inability to fill orders on time.

Finally, the evidence does not disclose the need for an injunction on October 4, 1976, as required by City of Decatur v. Meadors, supra. Every witness whose affidavit was introduced and who testified, either pointed out the absence of any difficulty after the first or second day of the strike, or did not refer to any such difficulty. The deputy sheriff himself established the presence of peace officers on the scene from the first day of the strike, and even on the first day, when most if not all the supposed threats took place, he observed none, and made no arrests.

We conclude, therefore, that under this state of the evidence the findings and conclusions of the trial court were palpably wrong. Accordingly, the decree of the trial court granting the preliminary injunction is reversed, and the cause is remanded for further proceedings not inconsistent with this opinion.

REVERSED AND REMANDED.

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


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

text:
    Robyn C. ANDREWS v. CITY NATIONAL BANK OF BIRMINGHAM, a National Banking Institution.
    SC 1968.
    Supreme Court of Alabama.
    June 3, 1977.
    Rehearing Denied Aug. 12, 1977.
    See also, Ala., 350 So.2d 333.
    Ben L. Zarzaur and Rodney A. Max of Denaburg, Scholl, Meyerson & Ogle, Birmingham, for appellant.
    Clifford M. Spencer, Jr. of Pritchard, McCall & Jones, Birmingham, for appellee.
   BEATTY, Justice.

This is an appeal from an order of the Jefferson County Circuit Court allowing the garnishment of alimony payments. We affirm.

In January, 1972 the Circuit Court of Jefferson County issued a decree granting a divorce to Ms. Robyn C. Andrews. The decree provided for substantial periodic alimony and child support payments. Ms. Andrews executed a guaranty agreement in June, 1972 to City National Bank of Birmingham which provided for her personal guaranty on all future indebtedness of El Burrito, Inc. arising out of rediscounts or endorsements. Thereafter, in 1974, Ms. Andrews, as president of El Burrito, Inc., signed two promissory notes payable to the City National Bank of Birmingham. When these notes were not discharged according to the agreement, judgment was entered by the trial court against Ms. Andrews for the unpaid balance of $59,331.84 plus costs and attorneys fees.

The plaintiff, City National Bank of Birmingham, then issued a writ of garnishment against Ms. Andrews’ former husband for the alimony payments due. The garnishee, Mr. Andrews, answered the garnishment as “not” indebted. Subsequently, the circuit court held that the alimony payments due by Mr. Andrews to defendant, Ms. Andrews, were subject to garnishment when they become due and payable. From this order appeal was taken by Ms. Andrews.

The question presented here is whether alimony is subject to garnishment.

The defendant argues on appeal that alimony is not a debt and therefore is not subject to garnishment. In support of this argument, the defendant cites Ryan v. Ryan, 271 Ala. 243, 123 So.2d 102 (1960), which held that alimony is not a debt due from the husband to wife within the meaning of Tit. 7, § 350, Alabama Code, the set-off statute. But that decision cannot be interpreted to prohibit a creditor from collecting upon a judgment by garnishment.

The appellant also cites Thompson v. Thompson, 282 Ala. 248, 210 So.2d 808 (1968), which held that alimony is not a debt within the meaning of Sec. 20 of the Alabama Constitution of 1901. That case stated only that alimony is not a debt for purposes of that constitutional section. The reason underlying the decision that alimony is not a debt within the constitutional prohibition for imprisonment for a debt is that alimony involves the element of sustenance and support of the wife. In trying to escape the prohibition of imprisonment for a debt, the courts have held that alimony is not a debt.

We need not address ourselves to this question, however, in view of our finding that the liquidated alimony here may be reached by garnishment as upon a judgment under Tit. 7, § 995, Alabama Code (Recomp.1958). That statutes states:

A garnishment, as employed in this Code, is process to reach and subject money or effects of a defendant in attachment, or in a judgment or decree, or in a pending suit commenced in the ordinary form, in the possession or under the control of a third person, or debts owing such defendant, or liabilities to him on contracts for the delivery of personal property, or on contracts for the payment of money which may be discharged by the delivery of personal property, or on contracts payable in personal property; and such third person is called the garnishee. (Emphasis supplied.)

The alimony due here represents a liquidated sum of money. Although appellant argues in brief that alimony payments are not certain since they can be modified, this Court has held that installment payments awarded in divorce decrees and which mature before the petition to modify is filed are immune from change. Wood v. Wood, 275 Ala. 305,154 So.2d 661 (1963). Further, when a non-resident divorced wife comes into Alabama to recover liquidated alimony payments, her proper action, based upon the decree, lies in debt. Ives v. Ives, 247 Ala. 689, 26 So.2d 92 (1946).

In Schooley v. Schooley, 184 Iowa 835, 169 N.W. 56 (1917), the Iowa court wrote to the question of whether alimony results from a contract:

And yet marriage is a civil contract between the parties, a contract which implies an obligation for support, and it is in recognition of such implied contract that alimony is allowed. It remains unliqui-dated, however, until the court has fixed it by judgment, but thereafter it would seem that it must be regarded as a debt by contract as well as by judgment. (Emphasis supplied.)

The marriage contract, which is an implied contract to support the spouse, will give rise to a debt upon the granting of alimony, and this debt, which becomes a final money judgment as to past-due installments, can be discharged as any other such judgment. O’Neal v. O’Neal, 284 Ala. 661, 227 So.2d 430 (1969).

In the case of Carnes v. Shores, 55 Ala. App. 608, 318 So.2d 305 (1975) the Court of Civil Appeals held that an attorney could intervene and prosecute an abandoned action in which the spouse had sought to determine and collect liquidated alimony. There, he sought to enforce his attorney’s lien for services rendered. That Court observed:

. There was a judgment already in existence for monthly alimony. Divorce had been completed. The action here was for the purpose of enforcing the previous judgment which had become final. Payments already due under a decree for alimony represent a final judgment and are collectible as such. .
Appellant’s petition to intervene and prosecute the suit to a conclusion in this case is no different in principle than any other “suit for money,” as stated in the statute. . . . (Emphasis supplied.)

The controversy here is very similar to Carnes v. Shores, supra, and it should be viewed as an action to enforce a money debt which is based upon a final judgment.

Because appellant has been granted a final judgment in the form of a divorce decree and there are alimony payments due and payable under that judgment, the ap-pellee bank should be allowed to proceed under Tit. 7, § 995, Alabama Code (Recomp. 1958).

AFFIRMED.

FAULKNER, SHORES and EMBRY, JJ., concur.

BLOODWORTH and ALMON, JJ., concur specially.

JONES, J., dissents, with whom MADDOX, J., concurs.

BLOODWORTH, Justice

(concurring specially).

I concur insofar as the holding is that past-due installments of alimony are “judgments” and, as such, are reached by the bank’s writ of garnishment. Such “judgments” are not judgments for all purposes. See Dodd v. Lovett, 282 Ala. 388, 211 So.2d 799 (1968); Miles v. Gay, 280 Ala. 131, 190 So.2d 686 (1965).

ALMON, J., concurs.

JONES, Justice

(dissenting):

I respectfully dissent. I find that the point of difference between my views and those of the majority of the Court is a very narrow one, but that point of difference takes us to two diametrically opposed results. An explanation of the similarity of our thinking, on the one hand, and how we arrive at totally different results, on the other hand, is in order.

We will begin by an examination of the majority opinion. The issue on which the contest between the parties was drawn was whether alimony is a debt, and thus subject to garnishment. In spite of this, the explicit basis for the majority holding, affirming the order of attachment, is that alimony constitutes a final judgment, and it is the term “judgment,” as that term is used in the garnishment statute, on which the holding is grounded. The majority has carefully (and, in my opinion, correctly) avoided the use of the term “debt,” as that term is used in the garnishment statute, in allowing alimony to be attached.

By using the “final judgment” rationale, rather than by answering the inquiry, “Is alimony a debt?”, the majority has avoided either overruling or distinguishing a long line of Alabama cases that have dealt with alimony in the “debt” context. See, e. g., Thompson v. Thompson, 282 Ala. 248, 210 So.2d 808 (1968); Ryan v. Ryan, 271 Ala. 243, 123 So.2d 102 (1960); Ex parte Stephenson, 252 Ala. 316, 40 So.2d 716 (1949); Murray v. Murray, 84 Ala. 363, 4 So. 239 (1887). These cases stand steadfastly for the proposition that alimony is not merely a debt.

As Mr. Chief Justice Stone said in Murray, marriage is more than a contract and the relationship between spouses is more than a contractual one. Consider this Court’s reasoning in LeMaistre v. Baker, 268 Ala. 295, 105 So.2d 867 (1958):

“ . . . the word alimony comes from the Latin alimonia, meaning ‘sustenance’, and, as applicable here, the sustenance or support of the wife by her divorced husband. ‘It stems from the common-law right of the wife to support by her husband, which right, unless the wife by her own misconduct forfeits it, continues to exist even after they cease to live together. Alimony has as its sole object the support of the wife, and is not to be considered a property settlement upon a dissolution of the marriage.’ (Emphasis supplied.) Eaton v. Davis [176 Va. 330, 10 S.E.2d 893, 897 (1938)].”

Thus, an obligation owed by a spouse through alimony is a higher and more serious obligation than a mere debt. Its sole object is for the continued support of the former spouse and it is not a property settlement. Alimony may not be discharged in bankruptcy (In re Avery, 114 F.2d 768 (6th Cir. 1940)), and the failure to pay alimony may result in imprisonment. Thompson v. Thompson, supra.

The Bank urges this Court to adopt the inference by way of dictum in Ryan v. Ryan, 271 Ala. 243, 123 So.2d 102 (1960), which contains the following statement:

“The courts which created this fund [alimony] should see that it is not subjected to the payment of preexisting debts, whether claimed by the husband or by some third party.” (Emphasis added.)

I agree with the majority opinion in the case of Ex parte City National Bank of Dothan, Ala., 350 So.2d 333 [1977], to reject this dictum for two reasons:

1. The rationale for the distinction between a debt incurred before the divorce and a debt incurred after the divorce is grounded on the presumption that an after-incurred obligation would necessarily take into account the creditor’s reliance upon the alimony as the means for payment. See Fickel v. Granger, 83 Ohio St. 101, 93 N.E. 527 (1910). This is a hypothetical fiction if applied as a matter of policy in every case. Indeed, the facts of the instant case speak strongly against such a presumption as a matter of law. Although the debt was incurred after the divorce, it was incurred as a business obligation of El Burrito, Inc., of which Ms. Andrews was president. Her individual obligation arose when the Bank required her personal endorsement upon a subsequent extension of the bank note. At any rate, such an assumption would accept as true a fact which in many cases would be untrue. We are not persuaded that public policy requires this Court to adopt this hypothetical fiction.

2. The second reason I would reject the before and after distinction is that the basis for the holding in Ryan —that alimony does not comport with the garnishment statute definition of debt — does not change its complexion when applied to the after-incurred obligation. That is to say, whether the debt was incurred by the wife before the divorce or after the divorce in no way alters the nature of the statutory obligation of alimony nor the statutory authorization for garnishment.

The foregoing discussion disposes of what the majority opinion does not use as the basis for its holding. The sole basis for allowing alimony to be subjected to garnishment proceedings, as I understand the majority opinion, is that alimony represents a final judgment. The difficulty with this rationale lies in the fact that the record before us does not disclose that any funds ordered attached by virtue of the garnishment statute represented past-due alimony. Alimony which is currently and timely paid never acquires the status of a final judgment. See Fletcher v. Fletcher, 56 Ala. App. 492, 323 So.2d 379 (1975). (It should also be noted that, contrary to the general rule, before a decree of alimony of a sister state will be given effect as to accrued installments, it must be reduced to judgment for a sum certain by appropriate proceedings brought for that purpose. Dodd v. Lovett, 282 Ala. 383, 211 So.2d 799 (1968)).

If alimony is not a debt, as that term is used in the garnishment statute (and I agree that it is not), and the alimony is currently paid, thus not becoming a final judgment, then this statutory basis for garnishment is lacking and the order of the trial Court, upholding the writ of garnishment, is due to be reversed.

I have no philosophical disagreement with the majority that Ms. Andrews ought to pay her legal debts. The Bank has a valid and final judgment on the note executed by her, but we are not here dealing with the common law in either aspect of the problem. Both alimony and garnishment are exclusively statutorily governed. One example will serve to illustrate the point: The legislature has seen fit to limit the extent to which wages may be subjected to garnishment. In declaring alimony subject to garnishment, 100% of the alimony would be withheld for the discharge of the debt. If public policy requires that alimony be subjected to garnishment, it is not only a legislative prerogative to so declare it, but, because of the complexities of conflicting public policies already announced in both the alimony and garnishment statutes, I feel that this belongs exclusively within the legislative province.

MADDOX, J., concurs.

        . Ryan, the only Alabama case dealing with garnishment of alimony, arose in the context of a debt incurred by the wife to a third party before a divorce decree and award of alimony. The .Ryan holding, of course, is limited to the before situation; thus, any inference of a contrary holding for an after-incurred obligation is pure dictum.

      . It is the before and after factual distinction that is alluded to in Ex parte City National Bank of Dothan.

      . I use the term “We”, in this instance, advisedly, because apparently there is no disagreement among the members of our Court on this point.


author: BLOODWORTH, Justice.

text:
    JEFFERSON HOME FURNITURE COMPANY, INC., a corporation v. JEFFERSON FURNITURE COMPANY, INC., a corporation.
    SC 2323.
    Supreme Court of Alabama.
    July 8, 1977.
    Rehearing Denied Sept. 9, 1977.

      Arnold K. Lefkovits and Thad Long, Birmingham, for appellant.
    W. Gerald Stone of Stone, Patton & Kierce, Bessemer, for appellee.
   BLOODWORTH, Justice.

Defendant, “Jefferson Home Furniture Company, Inc.,” appeals from a judgment for “Jefferson Furniture Company, Inc.,” in a suit for unfair competition. We reverse and render.

Plaintiff is a retail furniture company whose principal place of business is Bessemer where it has been located since 1918. Defendant is a retail furniture company whose principal place of business is Birmingham where it has been in operation since the early 1930’s. It has opened branch stores in Roebuck and the Eastwood Mall in Jefferson County.

Plaintiff brought suit on August 12,1976, in the Circuit Court of Jefferson County, Bessemer Division, seeking to enjoin defendant from operating a store in Midfield, Alabama, under the name “Jefferson Home Furniture Company, Inc.” Plaintiff alleged that the proximity of the two stores and the similarity of the names would cause much confusion among the general public and that plaintiff thereby would lose many of its customers.

Defendant filed its answer, defenses, and counterclaim, admitting the locations of the respective stores, inter alia, but averring that it had used its name since 1925 or before. Defendant denied that the names were confusing to the public or that plaintiff would lose patronage because of the alleged confusion with respect to the Midfield store. In its counterclaim defendant alleged that it had sold furniture throughout Jefferson County and surrounding counties for more than fifty years; that it had done substantial business in western Jefferson County, including Midfield; that it had never received complaints of customer confusion from plaintiff; that it had made substantial expenditures of time and money in the Midfield store; and, that plaintiff was attempting to interfere with the opening.

Thereafter, plaintiff filed a motion to strike defendant’s defenses and filed its answer to the counterclaim. The case was tried to the court ore tenus, and defendant moved, unsuccessfully, for a directed verdict at the close of plaintiff’s case.

The court found: that plaintiff had operated its store in Bessemer under the name “Jefferson Furniture Company, Inc.” since 1918, while defendant’s store had been in operation since the early 1930’s under the name “Jefferson Home Furniture Company, Inc.”; that the similarity of names had caused confusion among customers and suppliers; that defendant recognized this confusion because, in 1969, it had threatened suit against plaintiff unless plaintiff ceased use of its name in operating a store in Central Park; that the location of plaintiff’s Central Park store was virtually the same distance from defendant’s main store in Birmingham as the store defendant proposed to open in Midfield would be from plaintiff’s Bessemer store; and, that many of plaintiff’s customers would be affected by the confusion. The court enjoined defendant from opening or operating a furniture store in Midfield, Alabama, at the proposed location or any other location in Midfield, under the name “Jefferson Home Furniture Company, Inc.” On May 17, 1977, defendant filed a motion for suspension of the injunction, pending appeal. This motion was denied. A like application was made to this Court. It, too, was denied.

On appeal, defendant contends that in order to establish a case of unfair competition, plaintiff must prove: (1) that it was the first user of its name in the Midfield area in connection with a furniture business; (2) that by virtue of its long and exclusive use of its name, the name had acquired a secondary meaning which the public associated only with plaintiff’s business prior to the advent of defendant; (3) that defendant was the second user of the name in the Midfield area, entering the market after plaintiff’s name had acquired a secondary meaning; and (4) that defendant used the name in bad faith, in such manner as to attempt to deceive the public and capitalize on plaintiff’s good will. Defendant argues that plaintiff has failed to prove a single one of these elements. Defendant further contends that plaintiff’s cause of action is barred by laches.

On the other hand, plaintiff contends: that the ore tenus rule dictates affirmance since the trial court’s findings were neither palpably wrong nor unjust; that this is the sole issue in the case; that it need not prove actual fraud, constructive fraud being sufficient; and that the similarity in names has caused and will continue to cause great confusion. Plaintiff finally contends that it is not barred by laches, since it had no basis for complaint prior to defendant’s announcement of plans for a store in Midfield.

It seems clear that the focal point of plaintiff’s objection is the use of the word “Jefferson” in defendant’s name at the Midfield store. Clearly, this is a geographical name, as witness the following logos appearing in the respective parties’ newspaper ads.

The general rule is that there can be no trade-mark exclusively reserved in a geographical name, which is common property. Continental Paper & Bag Corp. v. Jacksonville Paper Co., 231 Ala. 400,165 So. 216 (1936).

However, it is also the general rule that where the geographic name has acquired a secondary meaning and signifies a certain quality of goods of a particular manufacturer or producer or dealer who has used that name, the name is protected to the extent that it is associated with that business and is attempted to be used by another in such a way as to constitute fraud. Id. at 402,165 So. 216. See also Chappell v. Goltsman, 99 F.Supp. 970 (M.D.Ala.1951); 87 C.J.S. Trade-Marks, Trade-Names, and Unfair Competition § 90.

In Alabama by statute, Tit. 47, § 271, Code 1940 (Recompiled 1958), it is provided:

“Appropriation of form, symbol or name as trade-mark. — One who produces or deals in a particular thing, or conducts a particular business, may appropriate to his exclusive use, as a trade-mark, any form, symbol, or name which has not been so appropriated by another, to designate the origin or ownership thereof; but he cannot exclusively appropriate any designation, or part of a designation, which relates only to the name, quality, or the description of the thing or business, or the place where the thing is produced, or the business is carried on.”

Justice Foster, writing for the Court in Continental Paper, supra, stated at page 403, 165 So. at page 218:

“. . The statute means, we think, that, although one may honestly use the geographical name of the place of production, he cannot exclude others from doing so, when their goods are so produced, unless such name has a secondarily significant meaning as referring to a certain brand of goods whose excellence is associated with that name and another is fraudulently capitalizing on its good will.”

In the instant case, plaintiff has failed to prove that its name has acquired such secondary meaning. That is, plaintiff has not shown that its name has an “established, distinctive, and valuable” meaning. See Fuqua v. Roberts, 269 Ala. 59, 110 So.2d 886 (1959).

It is true that plaintiff introduced evidence of some confusion, and confusion is an element to consider in determining if a name has acquired a secondary meaning. But the confusion must exist in the mind of the public generally and not just a few. Chappell v. Goltsman, supra.

In this case, the evidence shows that when some customers have come into plaintiff’s place of business (in response to defendant’s ads), they have stated they thought they were in one of defendant's stores. The converse, however, was not shown to have occurred. We think this tends to negate the conclusion that plaintiffs name has acquired a secondary meaning. If anything, it appears to show that defendant’s name has acquired a secondary meaning.

Moreover, plaintiff has failed to demonstrate that defendant’s use of its own name constitutes fraud. Unfair competition generally consists of “palming off” on customers, who are buying with ordinary care, the goods or business of one person as and for the goods or business of another. Empire Guano Co. v. Jefferson Fertilizer Co., 201 Ala. 277, 78 So. 53 (1917). See also 87 C.J.S. Trade-Marks, Trade-Names, and Unfair Competition § 14. While it is true that actual fraud need not be shown and that constructive fraud is sufficient, nevertheless it must be shown that defendant’s name was “calculated to deceive or likely to deceive”. Food Centers, Inc. v. Davis, 286 Ala. 629, 244 So.2d 576 (1971); Fuqua v. Roberts, supra.

At trial, plaintiff failed of proof to show that usage of defendant’s name was “likely to deceive” the public. In fact, plaintiff’s counsel stated that both parties have proceeded in good faith to eliminate any confusion. Such testimony hardly seems consonant with any intent to deceive. Moreover, it seems difficult to conceive that defendant is attempting to “palm off” its goods as those of the plaintiff when the two businesses carry largely noncompetitive lines, appeal to different clientele, and the defendant’s merchandise consists largely of higher priced lines.

We cannot agree with plaintiff’s insistence that the ore tenus rule dictates affirmance. The ore tenus rule requires that a trial court’s judgment be affirmed unless it is clearly and palpably wrong or without supporting evidence, or is manifestly unjust. Sterling Oil of Oklahoma, Inc. v. Pack, 291 Ala. 727, 287 So.2d 847 (1973). In this case, however, the facts are virtually undisputed, and we have reviewed the questions of law, finding that the trial judge erred to reversal in applying the law to the facts.

MOTION TO DISMISS APPEAL DENIED.

REVERSED AND RENDERED.

JONES, ALMON, SHORES and EMBRY, JJ., concur.