text:
    SEABOARD COAST LINE RAILROAD COMPANY, a corporation v. Jerome McDANIEL.
    Civ. 422.
    Court of Civil Appeals of Alabama.
    July 30, 1975.
    Rehearing Denied Sept. 10, 1975.

      Cabaniss, Johnston, Gardner, Dumas & O’Neal and John J. McMahon, Jr., Birmingham, for appellant.
    Rives, Peterson, Pettus, Conway & Burge, and W. Eugene Rutledge, Birmingham, for appellee.
   WRIGHT, Presiding Judge.

A jury awarded damages to plaintiff in an action brought in circuit court under the Federal Employers’ Liability Act.

At the completion of the evidence, the defendant moved for a directed verdict. The motion was denied. Verdict was returned for plaintiff in the amount of $8,000.00. Defendant’s motion for judgment notwithstanding the verdict was denied. Defendant appeals. We reverse.

On September 7, 1972, plaintiff had been employed in the Signal Maintenance Department of defendant for over 20 years. He was regularly employed five days a week as assistant signal maintainer from 8:00 A.M. to 5:00 P.M. but on September 7, 1972 was acting signal maintainer due to the absence of his superior on vacation. Plaintiff was subject to call for overtime in event of need. His main place of work was in the classification yard near Rock-ingham, North Carolina. His job was to maintain and repair the switches and signals on the railroad of defendant. The classification yard was the place where trains from several states were brought, broken down according to ultimate destination and reassembled into other trains for further movement.

At approximately 5:15 A.M. on September 7, plaintiff received a call at home that his services were needed. He arrived at the yard at approximately 5 :35 A.M. After receiving information as to the site of the trouble, plaintiff drove the truck with equipment and tools provided by defendant for use in his employment to the close proximity of the 180 switch. The 180 switch is the main switch which works automatically to disperse the cars “humped” to it onto the proper track in the yard. There are some 80 tracks in the yard.

At about 6:00 A.M., plaintiff arrived at the 180 switch. There he found the supervisor of the switching operation who inquired how long it would take to repair the trouble. Plaintiff, after looking at the switch, informed him it would take only two or three minutes. With this information, the supervisor of operations walked away. Plaintiff was alone on the job. Plaintiff determined the trouble to be that an operating arm on the switch had been bent into and against a cross-tie, causing the switch to become inoperable. He determined from his experience and judgment that the arm or rod merely needed straightening to become operable again.

Plaintiff took from his truck an instrument called a “digging bar”. This was a straight round steel bar or rod, some five feet in length with an “edged off point”. The truck carried two such bars which were used by plaintiff in “prizing” off old brake shoes.

Plaintiff inserted the end of the bar in a small space between the bent switch rod and the cross-tie and began to pry down in an effort to remove the bend in the rod. In the process of prying, the bar slipped in his hand. Plaintiff, in describing the event, used the following language:

“Q And what happened when you got the bar and brought it back over there?
“A I proceeded to stick the bar down between the cross tie and circuit controller rod. And I was pulling down hard on it, and pulled it away from the cross tie.
“Q And what happened?
“A It just slipped. I didn’t fall all the way down; it just slipped in my hand. In other words, I don’t know whether it rolled on the circuit controller, itself, or whether it slipped off from the cross tie, or I had a deep enough bite or not. But anyway, when I went down, it just slipped in my hand. I didn’t fall all the way down.”

As a result of the slipping, a small metacarpal bone was broken in the back of plaintiff’s hand. He completed repair of the switch, unaware of the severity of his injury until it began to interfere with his work several hours later.

Plaintiff in his complaint charged that his injury was caused by the negligence of defendant in one or more of three different respects. First, that defendant was negligent in not furnishing him with proper equipment; second, by not providing proper light; and third, in failing to provide proper assistance to perform his work.

Defendant contends that the evidence fails to establish negligence in any respect.

It is well known that actions brought under the Federal Employers’ Liability Act, U.S.C. Title 45, § 51 et seq. are governed by decisions of the federal courts though tried in state courts. Louisville & N. R. R. v. Cooke, 267 Ala. 424, 103 So.2d 791; Ellis v. Union Pacific R. R., 329 U.S. 649, 67 S.Ct. 598, 91 L.Ed. 572.

We therefore must look to interpretation of the Act by the federal courts. Those decisions clearly state that the Act makes an employer liable if an injury results only in part from his negligence. The common-law standard of proximate cause is modified, and the employee has a less demanding burden of proving causal relationship. Nivens v. St. Louis Southwestern Ry., 5 Cir., 425 F.2d 114. The employee’s contributory negligence does not bar recovery if the employer’s negligence contributed in any way to the injury. However, the plaintiff still has the burden of proving a hazardous condition, and that the employer, with the exercise of due care, could have reasonably foreseen that a particular condition could cause injury. Foreseeability is “an essential ingredient” of negligence under the Act. Gallick v. Baltimore & O. R. R., 372 U.S. 108, 83 S.Ct. 659, 9 L.Ed.2d 618 (1963). But actual notice of an unsafe condition is unnecessary. Constructive notice may suffice. Security Ins. Co. v. Johnson, 10 Cir., 276 F.2d 182. “In short, the principles that the employer is not an insurer of its employee’s safety, and that negligence is not presumed merely by proving an injury, are still viable. Employer negligence is still mandatory for recovery under the Act.” Nivens v. St. Louis Southwestern Ry., supra.

Such statements as that just quoted, however, must be viewed in light of the following :

“Under this statute the test of a jury case is simply whether the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury or death for which damages are sought. It does not matter that, from the evidence, the jury may also with reason, on grounds of probability, attribute the result to other causes, including the employee’s contributory negligence. Judicial appraisal of the proofs to determine whether a jury question is presented is narrowly limited to the single inquiry whether, with reason, the conclusion may be drawn that negligence of the employer played any part at all in the injury or death. Judges are to fix their sights primarily to make that appraisal and, if that test is met, are bound to find that a case for the jury is made out whether or not the evidence allows the jury a choice of other probabilities. .
“The decisions of this Court after the 1939 amendments teach that the Congress vested the power of decision in these actions exclusively in the jury in all but the infrequent cases where fair-minded jurors cannot honestly differ whether fault of the employer played any part in the employee’s injury.” Rogers v. Missouri Pacific R. R., 352 U.S. 500, 77 S.Ct. 443, 448, 1 L.Ed.2d 493.

With such statement of the law to be applied, it is difficult to accept the admonition in such cases that the Act does not intend the employer to be an insurer, as espoused by Mr. Justice Douglas in his concurring opinion in Wilkerson v. McCarthy, 336 U.S. 53, 69 S.Ct. 413, 93 L.Ed. 497. However, in considering the evidence adduced by the plaintiff in F.E.L.A. cases, the general definition of negligence is still to be applied. That is, “the lack of due care under the circumstances, or the failure to do what a reasonable and prudent man would ordinarily have done under the circumstances of the situation.” Tiller v. Atlantic Coast Line R. R., 318 U.S. 54, 63 S.Ct. 444, 87 L.Ed. 610.

As we see it, the question before this court is whether there were any probative facts adduced by plaintiff from which, when considered with reason, the jury could conclude that the defendant failed to do what a reasonable and prudent person would have done under the existing circumstances. Further, whether any act or failure to act by defendant contributed even slightly to the injury of plaintiff.

As stated heretofore, plaintiff’s theory for recovery was that defendant was negligent in one or more of three forms, i. e., (a) he was not furnished a proper tool; (b) he was not given sufficient help; (c) he was not furnished light to work by.

The latter two contentions would appear to be somewhat overlapping. We have examined the evidence minutely, searching for some facts which justify with reason the conclusion that defendant was negligent in failing to furnish a helper, either to perform the physical act of prying the bent connecting rod away from the cross-tie or to hold a light while plaintiff worked.

There is no testimony by plaintiff that he either had a light or that one was needed for aid in performing the job. There is no evidence as to the condition of visibility at the scene. The evidence was that plaintiff arrived at the yard between 5:35 and 6:00 A.M. He subsequently drove to the site of the trouble, examined it, talked briefly with the yard superintendent, took his tool from the truck and began. The time of the accident is not stated in the testimony. The date was September 7. Whether it was daylight or not on that date, at that time, is not shown. Plaintiff stated that he looked at the switch and determined the problem. There is no indication that light was needed either for observing or working.

The testimony of plaintiff was that he determined the job of repair was a simple one and that he would not have called for additional help for “it was not that big a job.” He examined the bent rod and determined that with the equipment he had on his truck he could repair it in two or three minutes. He so advised the yard supervisor who inquired of him.

We find no evidence that supplies even an inference that failure by the railroad to furnish other employees to assist plaintiff contributed in the slightest to the injury.

Plaintiff was in charge of performing the work and in his own words he used his best judgment gained from some 20 years in the job in determining what to do and how to do it. Plaintiff argues that the pressure of the need for immediate and quick action affected the action he took. Though the switch involved was the main switch in the yard and its breakdown obviously affected the operation of the yard, there is no evidence that any pressure was applied by defendant to proceed with the repair without proper help or equipment. Plaintiff states that the job was simple and was within his capability to perform quickly-

The charge of negligence in failing to provide the proper tool is, in our opinion, equally unsupported by the evidence. Plaintiff stated that in the 20 years he had been an assistant signal maintainer, he had never seen a switch connector rod bent in such a fashion as on the occasion of his injury. There had never, in his experience, been an occasion for prying such a rod away from a cross-tie. The tool which he chose from his truck to perform the repair was one which he often used to pry off old brake shoes at the master retarder. It was a tool with which he was thoroughly familiar. It can only be inferred that he chose it because he considered from his knowledge and experience that it would serve the need. There was clearly no inherent danger in the use of the tool. The evidence is not that the tool was improper or incapable of performing the job if properly used. It did perform the job, in fact. Plaintiff completed the job after he suffered his injury.

We have said that the plaintiff has the burden of proving negligence; i. e., that defendant, with the exercise of due care, could have reasonably foreseen that failure to provide plaintiff with a different tool could cause injury. “Foreseeability is an essential ingredient of negligence under the Act.” Gallick v. Baltimore & O. R. R., supra. The evidence does not justify, with reason, the conclusion that the defendant was negligent.

Plaintiff attempted to produce testimony that another tool, a “spike puller”, might “possibly” have been better to use. However, he would only say “possibly.” He stated he could have probably prized with the toes of the spike puller like a claw hammer instead of the way he did with the straight bar. However, a “spike puller” is not a tool constructed for signal maintaining. It is, according to the testimony, a tool made for use in construction and repair of the rails and road bed. There is no evidence that plaintiff had ever had occasion to use such a tool as a signal maintainer or that it had ever been used for signal maintaining. It was described as a long crowbar-type tool with a flattened foot split into two prongs for placing under the head of a spike and pulling it from the cross-tie. It is a tool designed for a specific purpose other than signal maintenance.

Plaintiff, who had never needed or found a use for such a tool in his 20 years as a signal maintainer, now submits that it was a better tool than the bar provided him and that the defendant was negligent in not foreseeing that such a tool would be needed by him on this occasion.

We have heretofore set out the description of plaintiff of how his injury occurred. We requote in part what he said:

“It just slipped, I didn’t fall all the way down; it just slipped in my hand. In other words, I don’t know whether it rolled on the circuit controller, itself, or whether it slipped off from the cross-tie, or I had a deep enough bite or not. But, anyway, when I went down, it just slipped in my hand. I didn’t fall all the way down.”

If the defendant is to be charged with foreseeability from the evidence in this case, it would be equally guilty of negligence in failing to provide a unique and unusual tool in any instance of its employee facing a situation never before experienced by him. The criteria is reasonably foreseeable. Reasonable foreseeability must arise from the knowledge of the ordinary needs of the particular job and past experience of the situations presented. In 20 years plaintiff had never encountered the unique situation presented on this occasion. There is a complete lack of evidence that the performance of regular duties of a signal maintainer had ever needed or required the use of a “spike puller”. Even if we accept the “possibility” that it might have been a better tool to use in this particular instance, we cannot, with reason, from the evidence, accept the charge that its use was reasonably foreseeable and the defendant negligent for failing to place it on the truck used by plaintiff.

We are impressed from the many cases we have read applying the Act, that the primary departure therein from common-law tort liability is in the area of causation. Proof of negligence by the defendant remains necessary. The common-law definition of negligence remains the same. It is the change from direct or proximate cause to that of slightest contributing cause that marks the main departure. Another departure is removal of common-law defenses except the general issue. Any further departure could only result in making the employer an insurer for any injury incurred in the course of employment.

We think the court expressed our impression correctly in Rogers v. Missouri Pacific R. R., supra, when it said:

“The law was enacted because the Congress was dissatisfied with the common-law duty of the master to his servant. The statute supplants that duty with the far more drastic duty of paying damages for injury or death at work due in whole or in part to the employer’s negligence. The employer is stripped of his common-law defenses and for practical purposes the inquiry in these cases today rarely presents more than the single question whether negligence of the employer played any part, however small, in the injury or death which is the subject of the suit. The burden of the employee is met, and the obligation of the employer to pay damages, arises, when there is proof, even though entirely circumstantial, from which the jury may with reason make that inference.”

We hold that plaintiff failed to present evidence of negligence. We find this to be one of “the infrequent cases where fair minded jurors cannot honestly differ whether fault of the employer played any part in the employee’s injury.” Rogers v. Missouri Pacific Railroad Co., supra.

Reversed and remanded.

BRADLEY and HOLMES, JJ., concur.


source: Caselaw Access Project

author: JONES, Justice.

license: Public Domain

text:
    In re SEABOARD COAST LINE RAILROAD CO. v. Jerome McDANIEL. Ex parte Jerome McDANIEL.
    SC 1476.
    Supreme Court of Alabama.
    Nov. 6, 1975.
    Rives, Peterson, Pettus, Conway & Burge, and Edgar M. Elliott and Thomas A. Carraway, Birmingham, for petitioner.
    Cabaniss, Johnston, Gardner, Dumas & O’Neal, and Michael C. Quillen, Birmingham, for respondent.
   JONES, Justice.

Petition of Jerome McDaniel for Certio-rari to the Court of Civil Appeals to review and revise the judgment and decision of that Court in Seaboard Coast Line Railroad Co., a Corp. v. McDaniel, 56 Ala.App. -, 321 So.2d 664.

Writ denied.

HEFLIN, C. J., and MERRILL, SHORES and EMBRY, JJ., concur.


author: BRADLEY, Judge.

text:
    Norma J. HENDERSON, Individually, and as Administratrix of the Estate of Hugh Gail Henderson, Deceased v. NATIONWIDE LIFE INSURANCE COMPANY.
    Civ. 555.
    Court of Civil Appeals of Alabama.
    Sept. 10, 1975.
    Rehearing Denied Oct. 8, 1975.

      Johnston & Shores, Birmingham, for appellant.
    Dortch, Wright & Ford, Gadsden, for appellee.
   BRADLEY, Judge.

Hugh Gail Henderson, husband of the plaintiff-appellant, was an employee of Brad’s Machine Products, Inc. of Gadsden, Alabama, hereinafter referred to as “Brad’s”. Since 1967 Brad’s had held a group life insurance policy with the defendant-appellee, Nationwide Life Insurance Company, under which its employees received coverage but contributed no portion of the premiums.

The contract of insurance provided that premium payments were due on the first day of each month, that the, policyholder was allowed a thirty-one day grace period to pay any premiums due, during which time the policy would remain in force, but that if any premium was not paid prior to the end of the grace period, the policy terminated. There was no provision in the policy for notice of termination for nonpayment, nor for reinstatement of the policy should it be terminated for non-payment of premiums.

On July 1, 1970 Hugh Gail Henderson received a certificate of insurance under the group policy, designating plaintiff as beneficiary.

Brad’s did not pay premiums on the policy for the months of September, October and November 1970. On November 23, 1970 an employee of the defendant telephoned Brad’s personnel manager concerning the policy. A memorandum of that phone call, Exhibit “G” below, was kept in defendant-Nationwide’s files as part of the service record on the policy of insurance held by Brad’s. The text of the memorandum states:

“Called this PH [policyholder] today to determine if the Sept., Oct. & Nov. premiums were going to be paid.
“Talked to Ben Benefield, new Personnel Mgr. who seemed to be unaware of the outstanding prem. He said he would have it sent in right away.
“I gave him one week & indicated we could not allow the case to continue in a lapsed position much longer.”

On December 1, 1970 Brad’s wrote defendant that their business was being acquired by another corporation, and that further phone calls from defendant would not be answered, but that delinquent accounts would be honored.

On December 8, 1970 Nationwide wrote Brad’s that the policy had been cancelled as of September 1, 1970 due to non-payment of premiums.

On November 24, 1970, one day after Nationwide’s telephone call to Brad’s, Hugh Gail Henderson died in a motor vehicle accident. He was still employed by Brad’s on the date of his death.

On December 14, 1970 plaintiff’s attorney wrote defendant that plaintiff had presented her claim under the policy to Brad’s and had been informed that the policy was no longer effective. On December 28, 1970 defendant replied that the policy had been cancelled on September 1, 1970.

On December 30, 1970 plaintiff, Norma J. Henderson, filed suit against defendant, Nationwide Life Insurance Company in the Circuit Court of Etowah County seeking to recover $6,000, the face amount of the policy of insurance issued by defendant to Brad’s Machine Parts, Inc. on the life of Hugh Gail Henderson. Plaintiff alleged in her complaint that the policy was still in force on the date of her husband’s death. Defendant’s demurrer to the complaint was overruled and the case went to trial on the basis of the pleadings, stipulations and memorandum briefs of the parties. The court sitting without a jury rendered judgment for the defendant on February 20, 1975 and plaintiff filed notice of appeal from that judgment on March 24,1975.

Plaintiff’s sole assignment of error contends that the trial court erred in entering judgment for the defendant. In a non-jury case a general assignment of error, such as has been filed in the present case, is sufficient to raise the question of the sufficiency of the evidence to support the judgment. Jones Valley Finance Co. v. Tennille, 40 Ala.App. 284, 115 So.2d 495, cert. den. 270 Ala. 738, 115 So.2d 504.

Plaintiff concedes in brief that a forfeiture of rights under the policy in question occurred due to Brad’s failure to make premium payments on September 1, October 1, and November 1, 1970; however, she says that defendant waived its right to assert this forfeiture by reason of its telephone call to Brad’s on November 23, 1970. Defendant replies that the telephone call of November 23, 1970 was not inconsistent with asserting the forfeiture, for it was merely an invitation for Brad’s to reinstate a presently lapsed policy for non-payment of premiums, and defendant says that such an invitation does not amount to a waiver.

The only evidence of waiver in the record is the previously quoted memorandum. The language of this document is sufficiently ambiguous to prevent it from amounting to an express waiver; however, a waiver can be implied if the memorandum established a record of conduct inconsistent with the insurer’s intention to enforce forfeiture.

In support of a finding of implied waiver, there are two possible interpretations of the content of the memorandum in question, and they are: (1) if the message referred to was an offer to defer cancellation until a future date, it is then implied that the policy will continue in force until the date specified; (2) if the communication was an attempt to collect premiums as a still existing obligation of the employer with no qualifying language indicating any other purpose for the payments, then the claims for the three monthly premiums in question are inconsistent with defendant’s denial of coverage for those months, and would be an implied waiver of the default. To us, the statement in the memorandum to the effect that Brad’s had been given one week from the date of the telephone call to pay three prior months’ premiums clearly implies that, if the premiums were paid within that week, policy coverage would continue in force and effect as if the payment had been made as originally scheduled. Thus, cancellation of the policy was deferred until the expiration of the one-week period. This, as we see it, is a clear implied waiver of the forfeiture. Under our second possible interpretation of the memorandum we are convinced that the defendant, through its employee, was claiming a right to collect premiums as a still existing obligation of Brad’s on the group insurance policy. Since there was no qualifying language in the memorandum to indicate any purpose served by these payments other than to satisfy the delinquency of the premiums for September, October and November, such a claim by the defendant would be inconsistent with its denial of coverage for those months, and would certainly imply a waiver of any forfeiture resulting from the delinquency. We are therefore convinced that an implied waiver of the forfeiture occurred on November 23, 1970.

We do not accept defendant’s contention that the telephone call on November 23 was an invitation for Brad’s to reinstate a presently lapsed policy. Granted, the memorandum stated that the policy was at that time in a lapsed condition due to Brad’s failure to pay the premiums for September, October and November; however, that same memo said that Brad’s had been given one week to pay the overdue premiums, which, as we have found, clearly implied that until that week passed without payment, the policy would remain in effect. The correctness of this conclusion is greatly bolstered by the absence in Brad’s policy of any stipulation for reinstatement in case the policy was terminated due to non-payment of premiums.

All of the cases cited by defendant in support of its contention that the memorandum amounted to an invitation to reinstate the policy involved situations where the policy itself contained a mechanism for such reinstatement. Ross v. State Life Ins. Co., 225 Ala. 410, 143 So. 827; Karr v. Liberty National Life Ins. Co., 222 Ala. 382, 132 So. 903; Provident Life & Accident Ins. Co. v. Hollums, 213 Ala. 300, 104 So. 522. The case of Lett v. Liverpool & London & Globe Ins. Co., 213 Ala. 488, 105 So. 553, sets forth the rule that a request for payment of premiums operates as an invitation for reinstatement according to the provisions of the policy. Of course, there is no such provision in the case at bar.

Defendant further contends that the evidence does not show that its employee had authority to waive the policy forfeiture in a manner which bound defendant.

The stipulation of facts, which the trial court had before it, provides, in part, as follows:

“9. That Exhibit ‘G’ attached hereto, consisting of one page, is a true and correct copy of a memorandum dated November 23, 1970 maintained by the defendant as part of its records in the ordinary course of business on the policy account of Brad’s Machine Products, Inc.”

In United Burial & Ins. Co. v. Collier, 24 Ala.App. 546, 139 So. 104, cert. den. 224 Ala. 57, 139 So. 106, the Court of Appeals of Alabama said:

“Corporations act in dealing with third persons only through agents, and the powers of an agent of an industrial insurance company are governed by the general law of agency. An insurance agent, whether general or special, possesses such powers as have been conferred by the company, or as third persons have a right to assume that he possesses under the circumstances of the case; and as a general rule his powers, as to those dealing with him, are determined by the nature of the business intrusted to him and prima facie coextensive with its requirements. 32 Corpus Juris 1062 (139).
“In this state an insurance company is bound by all acts, contracts, or representation of its agents, which are within the scope of his real or apparent authority.”

The facts in the present case show that defendant’s employee phoned the personnel manager of Brad’s to see if the September, October and November premiums were going to be paid. The personnel manager said he would send money for the premiums in right away. Defendant’s agent gave him one week to pay.

The only reasonable conclusion to be gathered from the memo in defendant’s office files is that the employee was asking for payment of the premiums and, when assured that they would be paid, gave Brad's one week to make payment. We also conclude that Brad’s personnel manager considered this employee to have the apparent authority to collect the premiums, for he told the employee that he was unaware of the delinquent premiums and would pay them right away. Furthermore, the authority to extend the time for payment was impressed on Brad’s personnel manager when defendant’s agent gave him an additional week in which to pay the premiums.

The supreme court in Occidental Fire and Casualty Co. v. Eidson, 279 Ala. 111, 182 So.2d 375, said:

“An insurer’s agent, authorized to collect premiums, has implied authority to extend payment. . . . ”

The memo found in defendant’s own business records indicates that its employee was soliciting the payment of overdue premiums from Brad’s, and there is nothing in the record to suggest a contrary conclusion. Consequently, we are convinced that the defendant’s home-office employee, while acting as an agent soliciting the payment of premiums from Brad’s, extended the time of their payment; that in so doing he waived on behalf of defendant the forfeiture of rights under the policy for non-payment of premiums; that plaintiff’s decedent was covered by the policy in question on the date of his death; and that plaintiff is entitled to collect the face amount of the policy.

This case was submitted to the trial court sitting without a jury on the basis of the pleadings, a stipulation of facts and documents, and memorandum briefs. Where evidence was before the trial court by stipulation, and oral testimony had not been taken, the ore tenus rule of review does not apply, the findings of the trial court do not carry any presumptions of correctness, and the appellate court must consider the evidence de novo in light of applicable legal principles. Kennedy v. Henley, 293 Ala. 657, 309 So.2d 435; Donald v. Donald, 270 Ala. 483, 119 So.2d 909. As has been decided above, the judgment rendered on behalf of defendant was erroneous; it should have been in favor of the plaintiff. Therefore, the judgment entered below is reversed and one is rendered here awarding the face amount of the insurance policy in question, i. e., $6,000, to the plaintiff as beneficiary of Hugh Gail Henderson, deceased employee of Brad’s Machine Products, Inc.

Plaintiff also asserts that the policy was not effectively cancelled as to the coverage of her decedent because he was entitled to notice of the cancellation and received none. Because we have already found that the cancellation was waived by defendant, no purpose would be served in this case by a ruling on this argument, and this issue is not reached by our holding here.

Reversed and rendered.

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


author: MERRILL, Justice.

text:
    In re Norma J. HENDERSON, Individually, and as Administratrix of the Estate of Hugh Gail Henderson, Deceased v. NATIONWIDE LIFE INSURANCE CO. Ex parte NATIONWIDE LIFE INSURANCE COMPANY, a corp.
    SC 1517.
    Supreme Court of Alabama.
    Nov. 6, 1975.
    Dortch, Wright & Ford, Gadsden, for petitioner.
    No appearance for respondent.
   MERRILL, Justice.

Petition of Nationwide Life Insurance Company, a Corp., for Certiorari to the Court of Civil Appeals to review and revise the judgment and decision of that Court in Henderson etc. v. Nationwide Life Ins. Co., 56 Ala.App. -, 321 So.2d 671.

Writ denied.

HEFLIN, C. J., and MADDOX, JONES and EMBRY, JJ., concur.


text:
    Major SOSEBEE v. ALABAMA FARM BUREAU MUTUAL CASUALTY INSURANCE COMPANY.
    Civ. 565.
    Court of Civil Appeals of Alabama.
    Oct. 29, 1975.

      Jones & Monroe, Birmingham, for appellant.
    No appearance for appellee.
   BRADLEY, Judge.

This is an appeal by defendant from a summary judgment entered for plaintiff in a detinue suit.

The action was commenced by appellee-plaintiff below, Alabama Farm Bureau Mutual Casualty Insurance Company, on July 23, 1971 in the Circuit Court of the Tenth Judicial Circuit, Jefferson County, by filing a complaint in detinue against appellant-defendant below, Major Sosebee. The complaint was supported by a proper bond and an affidavit stating that a 1969 Chevelle Malibu was the property of plaintiff and that action for its recovery had been initiated against defendant. The summons and complaint were served on defendant by the sheriff, who took possession of the car. When Sosebee failed to give bond and re-take possession within five days, as required by law, Farm Bureau posted replevin bond and took possession. On September 3, 1971 defendant filed a demurrer and a demand for jury trial.

On September 23, 1971 defendant commenced a separate suit aginst Sutherlin Chevrolet, Inc., defendant’s vendor, in Jefferson County Civil Court, alleging breach of warranty of title. That action was transferred to the Circuit Court of St. Clair County for reasons of venue and subject matter jurisdiction. On January 27, 1972 Sutherlin Chevrolet demurred and demanded jury trial. A pre-trial conference was held on September 20, 1973. The order coming from that conference overruled Sutherlin’s demurrer and set forth certain facts as established, including: Sutherlin had sold the car off its lot; a check for $1,900 was made out to Sutherlin; the bill of sale was made out to Spradlin Auto Parts; months later Farm Bureau claimed title to the vehicle and took possession of it; and defendant claims that the vehicle was a stolen automobile at the time of sale. On March 30, 1974 defendant amended his complaint in the St. Clair County case to include counts of misrepresentation and deceit based on Sutherlin’s actual or constructive knowledge of the fact that the vehicle was a stolen car. Count Five stated in part that the automobile “was repossessed by its lawful owners from plaintiffs.” On April 2, 1974 Sutherlin denied each and every allegation in the complaint. Trial was held on April 29, 1974, and a verdict was returned stating, “We the Jury find for the plaintiffs and assess their damages at ($5,000.00) Five Thousand Dollars.” There were no specific findings, nor do any instructions appear in the orders of court.

On May 22, 1974 plaintiff Farm Bureau moved for summary judgment in the present case against defendant based on the St. Clair County verdict and judgment. The motion asserted that the jury verdict established that the car was stolen; that the judgment estops defendant from contradicting his position in prior suit; and that defendant is barred from recovering because the St. Clair case had decided all the issues in the present case. The motion was supported by affidavit and by inclusion of the pleadings, motions, and orders of the St. Clair suit as exhibits.

On February 12, 1975 the Jefferson County trial court entered a final decree awarding summary judgment to plaintiff. The trial court’s order determined that defendant is estopped by the St. Clair judgment.

On February 28, 1975 appellant filed notice of appeal.

It is defendant’s contention that the estoppel on which the trial court granted summary judgment is inapplicable to the instant case because there is no mutuality of estoppel. A judgment, to conclude either party to the matter, must be such as to work a mutual estoppel. That is, a person who can claim the benefit of a judgment as an estoppel upon his adversary is one who would have been prejudiced by a contrary decision in the earlier case. Interstate Electric Co. v. Fidelity and Deposit Co., 228 Ala. 210, 153 So. 427; Clark v. Whitfield, 213 Ala. 441, 105 So. 200. Farm Bureau cannot meet this requirement of mutual estoppel. It was not a party to nor a participant in the St. Clair county case. It was not in privity with any of the participants in that case, privity meaning “[a] mutual or successive relationship to the same rights of property,” Bigelow v. Old Dominion Copper Co., 225 U.S. 111, 32 S.Ct. 641, 56 L.Ed. 1009, or an identity of interest in the subject matter of the litigation, Interstate Electric Co. v. Fidelity and Deposit Co., supra. Findings of law or fact in an action do not affect persons who were not parties or privies to the action. Suggs v. Alabama Power Co., 271 Ala. 168, 123 So.2d 4. There are exceptions to the mutuality doctrine, Interstate Electric Co. v. Fidelity and Deposit Co., supra. However, the posture of the parties and facts in the case before us does not fit into any recognized exception. In light of this, Suggs v. Alabama Power Co., supra, provides the controlling principle that new exceptions are not to be created.

We are aware that several jurisdictions have abandoned the mutuality doctrine, stating that it is in conflict with a public policy favoring settlement of controversies in a single litigation. The Suggs case indicates that Alabama does not follow this trend and remains a strict mutuality state. Although judicial economy is favored here as elsewhere, our jurisdiction has chosen to liberalize the rules of civil procedure, expanding the right to intervention and join-der of parties and expediting consolidation of actions at trial level, rather than abrogating the mutuality doctrine. Our rules provided ample opportunity to resolve all of the factual issues here in a single trial. Plaintiff did not avail itself of this opportunity.

Therefore, it is clear that defendant’s point is well taken: estoppel does not apply here, there is no mutuality. Our ruling on this issue does not dispose of the case, however.

Defendant’s assignments of error and arguments in brief challenge the reason given by the trial court for its decision; they do not reach the underlying merit of the decision apparent in the record.

So long as the judgment or decree is correct, the theory on which it is decided is immaterial. Birmingham Artificial Limb Co. v. Allen, 280 Ala. 445, 194 So.2d 848. The question on appeal is “whether the ruling of the court is correct, and not the reasons advanced by the court for such [a] ruling,” Anderson v. Smith, 274 Ala. 302, 148 So.2d 243.

In order to support denial of the plaintiff’s motion for summary judgment, the record and affidavits filed with the trial court must show that there is a genuine issue of fact or that the moving party is not entitled to judgment as a matter of law, Rule 56(c) ARCP. In ruling on the instant motion the trial court had before it an affidavit in support of the detinue complaint stating that the plaintiff owns the vehicle, and the record of the St. Clair County suit, submitted by plaintiff as an exhibit in support of the motion for summary judgment. While the exhibited St. Clair County record does not raise an es-toppel against defendant, Count Five of its amended complaint, in which defendant averred, . . said automobile was a stolen automobile and was repossessed by its lawful owners . . .” has evidentia-ry value. A party’s pleading in a prior case is admissible in the present action as an admission of the truth of the facts stated in the pleading if such party swore to it, signed it, directed its drawing, or assented to it as a correct statement. McElroy, The Law of Evidence in Alabama (2d Ed.) Sec. 181.01, Vol. 2, p. 7; City of Jasper v. Sanders, 226 Ala. 84, 145 So. 827.

Neither the affidavit, nor the admission by pleading, is conclusive, per se. However, these supporting materials tend to establish, and, in the absence of countervailing evidence or matters forming a defense, they do establish movant’s right to recover on his detinue claim as a matter of law and thus his right to prevail on summary judgment, Rule 56(e) ARCP.

The record reveals that defendant offered no affidavits, exhibits or other material refuting plaintiff’s submitted evidence or establishing a defense to the prima facie case. The only shred of response by defendant is his demurrer to the complaint in detinue. Rule 56(e) states in part:

When a motion for summary judgment is made and supported as provided in this rule, ah adverse party may not rest upon the mere allegations or denials of his pleading . . ..” [Emphasis added.]

Summary judgment was correctly entered here because defendant offered nothing in opposition to the motion, but chose to rest on his pleading, Owens v. Bank of Brewton, 53 Ala.App. 529, 302 So.2d 114.

For this reason there is no basis for reversing the decision of the trial court. It is therefore affirmed.

Affirmed.

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


text:
    ENGEL MORTGAGE CO., INC., a corp. v. TRIPLE K LUMBER COMPANY, INC., a corporation.
    Civ. 502.
    Court of Civil Appeals of Alabama.
    Nov. 5, 1975.

      Shannon, Odom, Robertson & Jackson, Birmingham, for appellant.
    Clifford M. Spencer, Jr., Birmingham for appellee.
   BRADLEY, Judge.

This case involves the Statute of Frauds as contained in Title 7 A (Uniform Commercial Code), § 2-201, and Title 20, § 3, Code of Alabama 1940, as Recompiled 1958. Defendant appeals from a verdict and judgment for plaintiff. Six assignments of error have been specified. We affirm.

Plaintiff commenced this suit in the Circuit Court of the Tenth Judicial Circuit, Jefferson County, on August 5, 1971, seeking the amount of $6,269.11, which represents the price of building materials supplied by plaintiff to a third-party pursuant to an alleged agreement that defendant would pay for the materials. Plaintiff later amended the complaint to add claims for the price of an additional several thousand dollars worth of unpaid for goods. Defendant argues that any purported agreement regarding these building materials is unenforceable since it is not evidenced by a signed writing.

Defendant first raised the defense of the Statute of Frauds provision in the Uniform Commercial Code in its amended answer and in a motion for summary judgment. That motion was denied, and the case was heard by a jury on June 17 and 18, 1974. Defendant relies on the denial of summary judgment as his first assignment of error.

At trial, defendant moved for a special verdict and a directed verdict, citing as grounds Section 2-201 of the UCC and the absence of evidence that there was a written conract. Both of these motions were denied. The ruling on the motion for directed verdict is assignment of error three.

Defendant requested eight jury instructions, of which seven were denied. Defendant cites as assignment of error six the denial of the requested charge stating:

“The jury is charged that Defendant is not a merchant within the scope of Title 7A, Section 201-1 [2-201(1)] of the Code of Alabama 1940, Recompiled 1958.”

On June 18, 1974 the jury found the issues in favor of plaintiff and against defendant, assessing damages at $8,196.03.

Defendant chose not to argue assignments two, four and five, which are thereby waived.

The evidence discloses that defendant is a company which arranges and otherwise services construction loans to building contractors. Defendant receives a fee for this, and, in addition, is afforded the opportunity to make long-term mortgage loans to purchasers of the completed construction projects. Plaintiff is a building materials supply company. A third company, Builders of Huntsville, is the contractor to whom plaintiff supplied the materials under its agreement with defendant. Builders of Hunstville is not a party to this action.

The evidence tends to show that in March 1969, Mr. DeNeefe, manager of defendant’s Huntsville office, telephoned plaintiff’s president, Mr. Kirkpatrick, concerning the possibility of plaintiff agreeing to sell materials to Builders of Huntsville for use at residential construction sites. Kirkpatrick declined, owing to Builders of Huntsville’s poor credit rating. It is un-controverted that DeNeefe thereupon gave some form of assurance to Kirkpatrick concerning payment for materials supplied. The nature and form of that assurance is, however, the prime factual dispute in the case.

In April and May 1969, plaintiff sent three registered letters notifying defendant that plaintiff was commencing delivery of goods to Builders of Huntsville at the construction sites. An employee of defendant signed postal return receipts for these letters, and there is no evidence that defendant ever objected to or dissented from their content. Plaintiff supplied Builders of Huntsville with periodic deliveries of materials during the period of April through July 1969. For each delivery both Builders of Huntsville and defendant received copies of invoices, which its employee compared with those sent to Builders of Huntsville. No objection to these invoices was made, and the materials were incorporated into structures being built at the delivery point.

At some point during this period the construction projects ran into difficulty, completion was greatly delayed, and by July 25, 1969 plaintiff was unable to collect several thousand dollars owed for goods already delivered.

Plaintiff sued Builders of Huntsville in Madison County Circuit Court and obtained the entry of a favorable judgment on October 8, 1971. That suit is not material to this appeal,

At the outset we observe that where a defense enumerated in Alabama Rules of Civil Procedure 8(c) is affirmatively pleaded in defendant’s answer, it can also be presented on a motion for summary judgment regardless of whether or not the defense can be established from the face of the complaint. Rules 12(b), 12(c), 56(b), 56 (c), 56(e), ARCP.

We turn first to' the applicability of the statute of frauds provision found in the sales article of the Uniform Commercial Code. Title 7A, § 2-201, Code of Alabama 1940, as Recompiled 1958, reads in pertinent part:

“(1) Except as otherwise provided in this section a contract for the sale of goods for the price of $500 or more is not enforceable by way of action or defense unless there is some writing sufficient to indicate that a contract for sale has been made between the parties and signed by the party against whom enforcement is sought . ...
“(3) A contract which does not satisfy the requirements of subsection (1) but which is valid in other respects is enforceable
“(c) with respect to goods for which payment has been made and accepted or which have been received and accepted." (Emphasis added.)

This text clearly indicates that, even where the value of the goods named to a contract exceeds $500, the absence of a signed writing does not bar seller from recovering the price of goods when the following are found to have happened: (1) an agreement of purchase and sale regarding the goods has actually been reached; (2) delivery of the goods in the manner, time and place agreed upon has been accomplished; and (3) any act or omission constituting acceptance of the goods under UCC § 2-606 has been manifested.

Whether or not these events have occurred depends on the application of relevant legal principles to the facts of the case. Where these facts are in dispute the case should not be disposed of on motion before reaching the jury, Alabama Digest, Trial ^142.

Under one view of the evidence in the record, an oral contract was reached between plaintiff and defendant whereby deliveries were to be made to Builders of Huntsville. It is beyond dispute that plaintiff made deliveries to Builders of Huntsville. There is evidence that these deliveries took place at times and locations of which defendant had notice and to which no objection was made. There is also some testimony that defendant requested these deliveries, and designated an employee of Builders of Huntsville to sign invoices at the jobsite. This evidence, if believed by the jury, would tend to establish that delivery to the designated employee was one of the terms of the oral contract, and would render any acceptance of the deliveries by him attributable to defendant.

The evidence shows that the designated employee, Mr. Witt, signed the invoices exhibited in the record. Furthermore, Builders of Huntsville subsequently built structures with those materials, thereby putting the goods beyond the reach of any future use or resale by plaintiff, clearly an act inconsistent with plaintiff’s ownership which amounts to an acceptance of the goods.

There is also a dispute in the evidence as to the existence of an agreement of binding force in which defendant clearly promised to pay for any goods so delivered and used. The oral testimony on this point is in conflict and the documentary evidence is ambiguous, adding to the confusion. This is a clear factual issue calling for resolution by the jury. The instruction given by the trial judge accurately framed the question presented by stating:

“The jury must return a verdict for Defendant unless you are reasonably satisfied from the evidence there was a contract between Plaintiff and Defendant whereby Defendant contracted to pay for materials sold by Plaintiff to Builders of Huntsville.”

The verdict for plaintiff indicates that the jury found such a contract to be in existence. There was no error in the trial court’s refusal to deny the jury the opportunity to make such a finding. Moreover, we do not find denial of defendant’s requested charge to be prejudicial to him. Defendant’s status as a merchant is not relevant to the finding that an oral contract had been reached and goods “received and accepted” pursuant thereto: although only merchants can satisfy the statute of frauds in the manner prescribed by UCC § 2-201(2), a purchaser of any description can bind himself under the plain meaning of § 2-201(3). There is nothing in UCC § 2-201 which requires reversal of the decision below.

We now direct our consideration to that portion of defendant’s brief which bases the assignments of error on Title 20, § 3 of the Code of Alabama 1940, as Recompiled 1958. No reference to this statute is made in any portion of the record below, and we feel that this disposes of defendant’s contention. Review cannot be based on matter which is brought up for the first time at the appeal stage of a suit, Alabama Digest, Appeal and Error *©=*169.

Although both Title 7A, § 2-201 and Title 20, § 3 of the Alabama Code provide affirmative defenses which fit into the generic category of statute of frauds, they provide distinctly different grounds of defense. They are not concurrent, even though in a limited number of fact situations both might apply. Basing a theory of defense on one of them is not equivalent to pleading the other. Therefore, while we do not say that the specific statute on which a defense is grounded must be presented with a high degree of technical precision, we do hold that the total absence in the present record of any citation to the statute or embodiment of its operative elements in either party’s pleadings or motions indicates beyond doubt that the statute was not a matter before the trial court. It is not appropriate for defendant to introduce this new issue in his brief.

The effect which the prohibition against premier introduction of new matter at the appeal stage has on each of defendant’s contentions can be summarized succinctly as follows:

Summary judgment must be granted or denied on the record which is before the trial court at the time the motion is heard. A party cannot add new theories or advance new issues in order to gain reversal of the ruling on the motion for summary judgment. Booth v. State Farm Mutual Automobile Ins. Co., 138 F.2d 844 (4th Cir. 1943), cert. den., 321 U.S. 783, 64 S.Ct. 637, 88 L.Ed. 1075 (1944); DeBardeleben v. Cummings, 453 F.2d 320 (5th Cir. 1972).

Motion for directed verdict must state the specific grounds therefor. A party cannot appeal denial of his motion by claiming it should have been granted on a new ground not specifically set forth below. Western Oil Fields, Inc. v. Pennzoil United, Inc., 421 F.2d 387 (5th Cir. 1970).

A party objecting to the refusal of a jury instruction must state distinctly the excluded matter to which his objection refers. He cannot cite as error the refusal of the trial court to give an instruction containing matter which was not requested below. Campbell v. Clark, 283 F. 2d 766 (10th Cir. 1960).

We conclude therefore that Title 20, § 3 of the Alabama Code of 1940, as Recompiled 1958, provides no basis for finding error on the part of the trial court.

It is necessary at this point to clarify the scope of the decision we have reached. This court is mindful that the authorities are split as to whether an affirmative defense enumerated in Rule 8(c) of the rules of civil procedure is waived if not pleaded in the answer or whether it can be revived by motion at a later stage. Suckow Borax Mines Consol. v. Borax Consol., 185 F.2d 196 (9th Cir. 1950), cert. den., 340 U.S. 943, 71 S.Ct. 506, 95 L.Ed. 680 (1950); Williams v. Murdoch, 330 F.2d 745 (3d Cir. 1964); but see Roe v. Sears, Roebuck & Co., 132 F.2d 829 (7th Cir. 1943) contra. The resolution of that question must await a case in which the facts present it as an issue. This is not such a case. The motions before us did not raise Title 20, § 3, and thus cannot possibly be construed as reviving that defense.

No error having been committed below, we affirm the decision of the trial court.

Affirmed.

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


author: WRIGHT, Presiding Judge.

text:
    O. C. WHITMON and Fran Whitmon v. Deanna Lou KILLEN and John Milton Killen.
    Civ. 570.
    Court of Civil Appeals of Alabama.
    Oct. 29, 1975.

      W. A. Barnett, Florence, for appellants.
    No brief for appellees.
   WRIGHT, Presiding Judge.

This is an appeal from modification of a decree of child custody.

Plaintiffs Killen are the half-sister and brother-in-law of Susan Joy Whitmon. Defendants Whitmon are the father and step-mother of Susan. Susan is the 16-year-old daughter of O. C. Whitmon and Helen Whitmon, deceased. The father had been given custody of Susan prior to the death of her mother. She was then six years of age.

Plaintiffs filed a petition requesting that custody of Susan be removed from the father and granted to them. They alleged that Susan had become unhappy in the home of her father and that the father drank to excess.

Testimony was taken orally before the court. A decree was entered granting custody to plaintiffs. Defendants appeal.

The testimony tended to show that the father had given more than amply material necessities and luxuries to Susan. She had done well in school and had become an accomplished musician. There had been no problems in the relationship between Susan and defendants until she became some 15 years of age and met a young man with whom she began to keep steady company. She was permitted to see him each night of the weekend and talk on the telephone for not more than 30 minutes at a time. Her grades began to go down. She became less interested in her music and appeared to withdraw within herself when she was at home. Her father suggested that she go with other boys and not restrict herself to one boyfriend. She refused his suggestion.

One night in November, 1974, Susan ran away from home. She left a note complaining that she felt unloved by her parents and that they did not communicate with her or talk with her about her problems. She spent at least one night with her boyfriend at his parents home. She was gone for several days and then went to the home of plaintiffs. She refused to divulge who had carried her away and where she had stayed, even to the court. The following day plaintiffs notified Susan’s father of her return. The father could not convince her to return home, and subsequently secured her return by resort to the juvenile authorities.

Plaintiffs filed their petition for change of custody on December 16, 1974. Susan continued to insist to her father that she wished to live with plaintiffs. On Christmas day he permitted her to move to plaintiffs’ home where she remained at the time of the hearing on January 21, 1975.

It is clear from the testimony that there was a serious breakdown of the parent-child relationship between Susan and her father and stepmother at a critical time in her teenage years. Susan fell in love for the first time. This love became the center of her life. The relationship was sexually consummated and prior adolescent interests were forgotten. She resented any interference with the compelling desire to be with her lover. She could not accept discipline which thwarted her desire to spend all of her time with the only one she felt really loved her. She felt her parents didn’t love her because they could not recognize her need to be with Billy.

■ The phenomenon of adolescent first love, though not unusual, often culminates in sad and tragic consequences. It has in Susan’s case. It has thus far resulted in destroying, hopefully only temporarily, the apparently excellent family relationship between Susan and her father and stepmother. Susan, in seeking some blame, outside of herself, for her confusion and unhappiness, accused her parents, particularly her father, of excessive drinking of alcohol. However, there is little, if any, testimony of such excessive drinking, other than her own. Perhaps her father did drink more than he should, but there is no testimony, even by Susan, that while drinking he mistreated or abused her or anyone else. It never interfered with his work or was reflected in loss of support for or attention to his family. There was no testimony that it occurred outside of his home or caused embarrassment.

Defendants have reared three sets of children of different parentage. The evidence indicates that all have been given every material opportunity possible. It was stated by Susan that she was given material advantages, possibly to excess. Her stepmother taught her the domestic and social knowledge necessary to a young lady. Her parents carried her with them to restaurants and to social events. She was permitted to join social clubs and to entertain her friends at home.

Susan’s response to all of the giving was that it did not show her she was loved. She therefore ran away. It is doubtful that the testimony of her parents, that they loved her and desired her to return to their home, has impressed Susan. It is doubtful that the time and expense expended by them in defending this action has convinced her of their love and concern for her. However, this court is convinced by the testimony that defendants love Susan and that it is to her best interest to remain legally in their custody.

Fully recognizing the presumption of correctness to be given in a review of a decree of the trial court after hearing ore tenus, we are convinced that as a matter of law and fact, the decree of the trial court is not supported by the evidence and is manifestly wrong. We think we understand the practical reasoning underlying the judgment of the experienced and distinguished trial judge. We understand that it may be difficult or impossible for defendants to enforce their legal custody upon a 16-year-old girl who refused their love and protection. However, difficulty of enforcement cannot be permitted to overcome legality. Defendants have already recognized the futility of force in this case by permitting Susan to live in the home of plaintiffs. Because of her immaturity and obstinance, Susan may refuse to submit to the supervision and care of her parents. She nevertheless will be legally subject to them. Perhaps such legal control will someday prevent her from committing further tragic mistakes in her young life. Properly used it may serve as an instrument of communication and reconciliation.

In any event, this court cannot permit the will and desire of a young girl, unsupported by just cause, to determine the modification of her custody. • Should we do so in this case, the legal principles of parental priority of custody would be abandoned and the requirement of proof of material change of circumstances affecting the welfare and best interest of the child would become a nullity.

In reaching our decision, we do not admonish plaintiffs for their actions. Though they confess to no knowledge of circumstances or conduct of defendants adverse to the best interest of Susan, we can understand the reason for plaintiffs bringing this action for custody of Susan. We do not approve of it, for it is calculated to widen the breach between Susan and her father, when plaintiffs’ effort should have been used to conciliate.

In reversing the judgment of the learned trial judge, it is the hope of this court that the parties will join their best efforts to reunite Susan with her parents and rescue this intelligent and talented young lady from the dangerous journey she has begun.

Reversed and remanded.

BRADLEY and HOLMES, JJ., concur.

      . McGee v. McGee, 284 Ala. 320, 224 So.2d 672.

      . Although her preference is entitled to consideration, it is not controlling. Hattrich v. Hattrick, 52 Ala.App. 539, 295 So.2d 260.

      . Esco v. Davidson, 238 Ala. 653, 193 So. 308.

        .Carter v. Harbin, 279 Ala. 237, 134 So.2d 145; Anonymous v. Anonymous, 277 Ala. 634, 173 So.2d 797.


text:
    R. R. McLARTY v. Armon WRIGHT.
    Civ. 573.
    Court of Civil Appeals of Alabama.
    Oct. 29, 1975.

      Beck & Beck, Fort Payne, for appellant.
    John C. Wear, Scruggs, Rains & Wilson, Fort Payne, for appellee.
   BRADLEY, Judge.

Plaintiff commenced this action on August 29, 1973 by filing a complaint in the Circuit Court of DeKalb County alleging that defendant had breached an agreement whereby the two parties were to establish a new textile manufacturing plant together. According to plaintiff, the terms of the agreement provided that he and defendant were to put up an initial capital investment of $4,000 each, and plaintiff was to manage and operate the firm. The agreement allegedly contemplated that the business would be incorporated as the “DeKalb Textile Mill, Inc.,” and each party would receive fifty percent of the stock.

Plaintiff further alleged that, after the business had become a going concern, defendant breached the agreement by refusing to incorporate and by dismissing plaintiff from his duties at the plant and ordering him off the premises.

Defendant denied the allegations of the complaint. Trial by jury was held on December 11, 1974.

The major factual disputes were whether the venture was making a profit or incurring losses at the time of plaintiff’s dismissal, and whether the defendant was acting personally or as agent for W. B. Davis Hosiery Sales, Inc. when he entered into the agreement with plaintiff. The jury found all of the issues for plaintiff and returned a verdict that defendant was personally liable in the amount of $8,500. Defendant appeals.

Defendant’s first assignment of error is that his objection to plaintiff’s evidence that the venture was profitable was improperly overruled. Defendant contends that profitability is not a material issue in this case because plaintiff did not plead lost profits as a matter of special damages in the complaint.

It does not appear that the testimony was offered for the purpose of supporting a claim for lost profits. There is no claim for such profits in the pleadings, and there was no evidence offered whereby a jury might be expected to compute the amount of lost profits. It is, on the other hand, clear that plaintiff’s claim for breach of contract included allegations that his dismissal from the management of the DeKalb Textile business was unjustified. Whether or not the business was earning money under plaintiff’s management is relevant and material to that allegation. If evidence objected to on specific grounds is admissible on any grounds, the trial court will not be put in error for overruling the objection, Martin v. Hill, 42 Ala. 275.

Defendant next cites error in the trial court’s denial of his motions for directed verdict and for judgment notwithstanding the verdict. Both of these motions test the sufficiency of the evidence in the same way, see Committee Comment to ARCP, Rule 50. Neither should be granted if there is any conflict in the evidence for the jury to resolve, and the existence of such a conflict is to be determined by applying the scintilla rule. Defendant based his motions on what he claimed was an absence of evidence that he, rather than W. B. Davis Hosiery Sales, Inc., was personally obligated by the terms of the agreement to incorporate. ‘

The only evidence that defendant had personally entered into the agreement was plaintiff’s testimony on direct examination. On cross-examination plaintiff put forth the seemingly contradictory testimony that W. B. Davis Hosiery Sales had put up the initial $4,000, paid in additional operating money, and appeared on the proposed certificate of incorporation as a fifty percent shareholder. This incongruity in testimony was not explained or clarified.

Unexplained contradictions in a witness’ testimony do not cancel out the matter contradicted or justify its exclusion, but go instead to the weight of the testimony, Bohanan v. Dodd, 7 Ala.App. 220, 60 So. 955. Of course, the net effect of inconsistent testimony may be a diminution of the witness’ overall credibility, but this is to be determined by the jury. The scintilla of evidence offered by plaintiff was not wiped out by his later apparent contradiction of it, and there is no error in denying these motions.

Defendant further assigns as error the denial of two requested jury instructions. Both of these instructions inferred that there was no evidence to support a verdict for plaintiff. As we have just discussed, such an inference is incorrect. Had the court given either of the requested instructions, it would have invaded the province of the jury. A charge should be refused if it assumes the existence or denial of facts with reference to which the evidence is in conflict. Alabama Dry Dock & Shipbuilding Co. v. Bates, 33 Ala.App. 81, 30 So.2d 273. There is no error in the refusal to give these charges.

Defendant further argues that the verdict should be set aside because it is contrary to one of the given instructions. It is true that a verdict conflicting with an instruction will ordinarily be set aside, notwithstanding the instruction is erroneous, Talley v. Whitlock, 199 Ala. 28, 73 So. 976. However, the verdict in the present case does not conflict with the given charge, but is perfectly consistent with it: the judge stated, in hypothetical form, a possible conclusion to be drawn from the evidence, and then instructed the jury that the law of the case required a verdict for defendant if the jury, believed the evidence supported the hypothetical conclusion. The jury, deciding for plaintiff, obviously rejected the posed conclusion, thus exercising their option to reject it.

Defendant assigns as error the given instruction relating to the validity of oral contracts. Defendant asserts that there is no evidence that the agreement to incorporate could be performed within one year, and thus it is voided by the statute of frauds.

To come within the statute of frauds, the contract must be, by its terms, incapable of performance within a year. Land v. Cooper, 250 Ala. 271, 34 So.2d 313. There was considerable testimony by both parties as to the terms of this oral contract. It was a contract to initiate a business and to incorporate it. The first part of the agreement was executed, within a year; performance of the latter part within a year would have been accomplished but for defendant’s refusal to perform. The contract was clearly capable of performance within a year, and is not defeated by the lack of a signed writing.

Defendant’s brief indicates that he feels the contract could not be performed within a year because the corporation would have been an ongoing enterprise. This argument suggests an agreement other than the one sued upon. The contract in this case contemplated the act of incorporation. This would be accomplished by filing appropriate papers. However those papers were never filed. After the corporation came into being, its future would be determined by the law of corporations, largely statutory, and not by the terms of this contract.

Finally, defendant’s brief contains several propositions of law which consist of citations to several cases dealing with partnerships. It is perhaps a credible argument that the defective formation of a business association, falling short of the formality required for a de jure or de fac-to corporation, makes the associates partners with regard to each other. However, the record reveals that this issue was not before the trial court, and thus cannot be presented now on appeal, Alabama Digest, Appeal and Error, § 169. Plaintiff’s cause of action in the instant case flows from the failure to effectively create a business relationship, not from any liabilities incurred as a consequence of such a relationship.

There being no error in the record, the judgment of the trial court is affirmed.

Affirmed.

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


author: BRADLEY, Judge. WRIGHT, Presiding Judge

text:
    In re Willodean Frost HARRIS v. NATIONAL TRUCK SERVICE, a corporation, and DeKalb Trucking Company, a corp., et al. Ex parte DeKALB TRUCKING COMPANY.
    Civ. 560.
    Court of Civil Appeals of Alabama.
    Sept. 24, 1975.
    Rehearing Denied Oct. 22, 1975.

      Jack Livingston and Ronald A. Drum-mond, Scottsboro, for petitioners.
    Traylor, Baker & McGee, Fort Payne, for respondent.
   BRADLEY, Judge.

This is a workmen’s compensation case. Respondent is the widow of Joseph Harris, a deceased employee of petitioner, DeKalb Trucking Co., Inc., a corporation. The petitioner defended the claim in the trial court on the premise that respondent’s deceased husband was killed while employed by a “common carrier doing business in interstate commerce while engaged in interstate commerce” and was not entitled to workmen’s compensation benefits. Title 26, Section 263, Code of Alabama 1940, as Recompiled 19S8. The trial court found that Joseph Harris, at the time of the accident resulting in his death, was not employed by a common carrier and was, therefore, entitled to workmen’s compensation benefits.

Review of that judgment is sought in this court by writ of certiorari as provided by law.

The facts as found by the trial court show that Joseph Harris was employed by DeKalb Trucking Company, Inc., a corporation (hereinafter referred to as DeKalb Trucking Co.) as a truck driver. Around the first of June 1971 Harris, while acting as an employee of DeKalb Trucking Company, drove a truck loaded with processed chickens to Iowa. The chickens were unloaded and he proceeded to Waseca, Minnesota where, after his truck had been leased to Refrigerated Transport Company (hereafter referred to as Refrigerated) he undertook to take a load of frozen pies to Doraville, Georgia. In the vicinity of Jasper, Tennessee, Harris was involved in an accident that resulted in his death.

At the time the accident occurred, it is undisputed that Refrigerated was a common carrier. There is considerable dispute as to whether DeKalb Trucking, at the time of Harris’ death, was a common carrier.

The evidence shows that the trip to Iowa entailed the transportation of processed chickens. These were agricultural products and exempt from I. C. C. regulation. The evidence is also undisputed that De-Kalb Trucking was not certificated by the I. C. C. or Alabama Public Service Commission as a common carrier.

The lease agreement between DeKalb Trucking and Refrigerated provided that both the driver and tractor-trailer belonging to DeKalb Trucking were leased to Refrigerated for the specific trip mentioned above; however that same lease agreement provided that the driver was to remain as the employee of DeKalb Trucking. Mr. Harris was paid, both during the time he was hauling to Iowa for DeKalb Trucking and from Minnesota to Georgia for Refrigerated, by DeKalb Trucking, a percentage of the revenue derived by DeKalb Trucking from the particular trip undertaken.

The premiums for workmen’s compensation insurance were deducted by DeKalb Trucking from the commissions due to Joseph Harris. In effect, Harris paid for his own workmen’s compensation insurance.

The trial court found as a fact that DeKalb Trucking was not a common carrier within the meaning of Title 26, Section 263, supra. Section 263 provides in part as follows:

“Articles 1 and 2 of this chapter shall not be construed or held to apply to any common carrier doing an interstate business while engaged in interstate commerce, . . .”

As has been said many times before by appellate courts in this state, on certiorari to review the judgment of a trial court in a workmen’s compensation case, the reviewing court looks to see if there is any evidence in the record to support the findings of the trial court. Birson v. Decatur Transfer & Storage, Inc., 271 Ala. 240, 122 So.2d 917. In the case at bar the trial court found that DeKalb Trucking was not a common carrier and, consequently, did not fall within the purview of the provisions of Section 263, supra.

Petitioner says, however, that the evidence conclusively shows that it was a common carrier and thereby exempt from the provisions of the workmen’s compensation law. We are cited to the case of Birson v. Decatur Transfer & Storage, Inc., supra, as being controlling authority for this proposition.

The facts in the cited case and the facts in the case at bar are similar but there is one significant difference. In the cited case it was undisputed that the Decatur Transfer & Storage, Inc. was a common carrier; whereas in the case at bar the status of DeKalb Trucking as a common carrier is the central dispute. Consequently we do not believe that Birson, supra, is apt authority for concluding that DeKalb Trucking is or is not a common carrier.

The evidence in the case at bar is overwhelmingly to the effect that petitioner did none of those things which by statute or case law are required of common carriers. Petitioner held no certificates of convenience and necessity from either the I. C. C. or Public Service Commission; it did not adhere to regular schedules and routes; it did not offer its hauling services to the common public generally, but instead entered into special contracts to haul “exempt” goods. Hence we conclude that the trial court’s finding that petitioner is not a common carrier is well supported by the evidence. The assignment of error questioning this aspect of the trial court’s judgment is without merit.

Petitioner also suggests that the trial court erred when it awarded the benefits to respondent in a lump sum under Title 26, Section 279(C)(9), Code of Alabama 1940, as Recompiled 1958, for the reason that, at the time the cause of action accrued, i. e., the time the injury occurred, that provision of the Code had not been enacted, and to make the award in this manner is an impairment of the obligation of contract as prohibited by Article 1, Section 22 of the Alabama Constitution of 1901.

Title 26, Section 279(C)(9) came into being when several provisions of the Alabama Workmen’s Compensation law were amended by a 1973 Act of the legislature. Prior to the adoption of this amendment, lump-sum awards were controlled by Title 26, Section 299, which required commutation to present value based on a discount factor of six percent of all lump-sum settlements. The 1973 Act virtually eliminated the commutation requirement, and the award in the present case did not provide for commutation. Our sole concern here is with that portion of Section 279(C) (9), which by its terms has retrospective application. The pertinent portion reads as follows :

“ . . . In cases pending in payment at the time this Act becomes law [September 17, 1973] the injured employee or his estate may petition a court of competent jurisdiction and the court may order the employer to pay the amount due the employee or his estate within thirty (30) days from the date of said order if the court determines that moneys due the employee or his estate shall be paid in a lump sum. The payments shall not be commuted.”

In the opinion of this court, the above quoted portion of Section 279(C)(9), as applied to the facts of this case, is an impairment of existing contract obligations and violates the Alabama Constitution.

It is a controlling feature that workmen’s compensation is of a contractual nature. Alabama has adopted the majority rule that the legislature is free to change the provisions of a compensation law up until the time of injury. However, because the employer and employee have implicitly contracted to abide by the compensation scheme in effect at the moment of injury, any attempt to amend the compensation schedule after the injurious accident can have no bearing on the award given, and if such retrospective application is given the amendment, then an unconstitutional impairment of contract obligations occurs. Tennessee Coal & Iron Division, U. S. Steel Corp. v. Hubbert, 268 Ala. 674, 110 So.2d 260; Owens v. Ward, 49 Ala.App. 293, 271 So.2d 251. The impairment which occurs in the present case is obvious and substantial. At oral argument petitioner cited statistics showing that if commutation to present value is no longer allowed, the employer-insurer must pay an additional $900.00 or more to satisfy a $20,000 compensation award. “Present value” (or “present worth” as it is designated in some statutes) has been defined as “a sum which if paid on the date of the verdict would be a just cash equivalent of the sum total of such lost future earnings” as the court awards. Littman v. Bell Telephone Co. of Pennsylvania, 315 Pa. 370, 172 A. 687.

Under the pre-amendment commutation provision, approximately $19,100 would be deemed the present value of an award of $50 per week for 400 weeks, the award given here. After the amendment there would be no commutation to present value, so a lump-sum payment of $20,000 would be required to satisfy the same award. But, based on these figures, we can estimate that a $20,000 lump sum would be the just cash equivalent of approximately $52.50 per week for 400 weeks. Therefore, the effect of the amendment is to provide a small windfall to the beneficiary and impose an unanticipated burden on the employer. This is at variance with the compensation schedule in effect in 1971, the time of the injury present case, and impairs the employer’s contract obligations established by that schedule.

Respondent urges us to view the 1973 amendment not as a change in the compensation schedule, but as an alteration in the form of the remedy and thus not an impairment of contract. We must reject this argument. First, it is significant that Section 279(C) (9) appears in a section of the Code headed, “Schedule of compensation —Following is schedule of compensation.” Thus there is compelling evidence that the legislature was considering changes in the compensation schedule when it adopted the amendment.

Second, there is the specific nature of the amendment. Rather than providing for a general change in the judgment interest rate, the retrospective portion of the amendment limits its application to a very few cases, indicating that specific types of claims were singled out for this change. This is circumstantial evidence that the legislature was thinking of the amount of relief — compensation-type of thinking— rather than of the technicalities of enforcing remedies.

Third, the elimination of commutation makes the award of a lump sum worth more money in the actuarial sense than a periodic weekly award. As such, the amendment provides to the employee a clear financial incentive to choose the lump-sum form of payment independent from considerations of his welfare and needs for stable income over a period of years. This is a basic change in the philosophy of workmen’s compensation, which has always been based on the philosophy of acting as a surrogate for the lost weekly earnings of the injured employee. Such a basic philosophical change is too profound to be subsumed under the heading of a mere adjustment in the prescribed remedy.

For these reasons, the retrospective application of Section 279(C)(9) in this case must be held unconstitutional, although we do not rule out the possibility that the legislature could adopt broad reforms in commutation rates with retroactive effect if it made careful findings of fact and clearly indicated that its intent was remedial change. Such is not the case here.

Read in context, certain language in the case of Thompson-Hayward Chemical Company v. Peterson (1975), 56 Ala.App. -, 322 So.2d 723, to the effect that Section 279(C)(9) has been held constitutional is obviously limited to the issues presented in that and previous opinions on the subject. It is contrary to the plain meaning of that language to rely on it as a blanket warrant of constitutionality in every possible aspect.

Because the provisions of Section 279 are severable, the provision for retrospective application can be declared unconstitutional without invalidating the remainder. The non-retrospective portions of Section 279(C)(9) clearly do not impair any invested contract obligations involved in this case.

We are also of the opinion that the trial court abused its discretion by entering this decree for lump-sum payment even though petitioner was afforded no opportunity to present evidence in opposition to that aspect of the decree. In B. F. Goodrich Company v. Butler (1975), 56 Ala.App. -, 324 So.2d 776, this court held that Section 279(C)(9) did not mandate, proprio vi-gore, formal notice and hearing subsequent to the employee’s requisite filing of petition for lump-sum payment. However, B. F. Goodrich indicates that the trial court’s decision on the petition could be set aside for abuse of discretion.

There is no basis for an exercise of discretion by the trial court unless some evidence has been presented, or at least both parties have had the opportunity to present evidence, on the matters over which discretion is exercised. Cohen v. Young, 127 F.2d 721 (6th Cir. 1942). Whereas the trial court in B. F. Goodrich could take into account the employer’s failure to object to a proposed decree of which he had actual notice, there is nothing similar in the record of the present case to form the basis for a lump-sum award. In these circumstances, entry of a lump-sum payment when the employer has been denied the opportunity to present any evidence that might weigh against such an award is arbitrary and amounts to a reversible abuse of discretion by the trial court.

Such a denial clearly occurred when petitioner was not given notice and hearing on respondent’s request for the lump-sum order as provided for in Rules 6(e), 6(d) and 7(b) of the Alabama Rules of Civil Procedure. The record indicates that judgment, including the lump-sum award, was rendered on March 10, 1975. It was on that same day that respondent filed its petition for lump-sum payment. A copy of respondent’s petition was received by petitioner’s counsel on March 11, 1975, one day after the decree was entered. A copy of the judgment was mailed to petitioner’s counsel on March 21, 1975. Petitioner had no time in which to prepare objections to lump-sum payment. Nonetheless, because we have already held the award of lump-sum payment to be constitutionally infirm, it would not be possible for respondent to change the result we reach here merely by curing any procedural deficiencies.

In view of the above, the trial court properly entered judgment for the plaintiff but erred in allowing a lump-sum payment without commutation. For this reason we remand the case to the trial court for the purpose of determining the benefits that should be paid to the respondent according to law.

Affirmed in part; reversed and remanded in part.

HOLMES, J., concurs.

WRIGHT, P. J., concurs specially.

WRIGHT, Presiding Judge

(concurring specially):

I concur in the opinion of the majority but feel it necessary to explain that in doing so, I do not depart from the decision of Steele v. Aetna Casualty & Surety Co., 46 Ala.App. 705, 248 So.2d 745.

It is to be noted that the employer in Steele was a common carrier engaged in interstate commerce. As is pointed out in the opinion of the court in this case, the employer, DeKalb, is not a common carrier, either intra or interstate, but a contract carrier of exempt commodities. It is true that at the time of his death, the employee was engaged in interstate commerce as a lease driver for a common carrier, Refrigerated Transport Company. There is little question but that while so engaged he was subject to the rules and regulations of the Interstate Commerce Commission. He and the truck owned by his employer, DeKalb, were operating under the permit of Refrigerated. Refrigerated had direction and control of the driver and the vehicle while leased; however, such lease did not cause DeKalb to become a common carrier engaged in interstate commerce.

Section 263 of Title 26 as it appeared in 1971 excluded common carriers doing an interstate business while engaged in interstate commerce from coming under the Workmen’s Compensation Act. It is my opinion, applying the provisions of the Act liberally as required, DeKalb was not such an employer as was intended to be excluded from the benefits of workmen’s compensation. The case of Birson v. Decatur Transfer & Storage Co., Inc., 271 Ala. 240, 122 So.2d 917 is distinguishable for the same reason hereinabove stated.


text:
    James PAVLISTA and Frances Pavlista v. Edith Leona B. PAVLISTA, and Theodore Pavlista.
    Civ. 646.
    Court of Civil Appeals of Alabama.
    Nov. 12, 1975.

      Bailey, Taylor & Benton, Fairhope, for appellants.
    Brantley & Nesbit, Robertsdale, for ap-pellees.
   WRIGHT, Presiding Judge.

This is an appeal from a judgment reforming a deed.

Edith Pavlista sued Theodore Pavlista for divorce. She subsequently brought a separate action against the parents of Theodore to require satisfaction of a mortgage. The parents, James and Frances Pavlista filed a cross-claim for cancellation of a deed. Theodore intervened in the latter suit, requesting reformation of the deed and vesting title in himself. The court, upon motion, consolidated the actions for divorce with the actions on the mortgage and deed. Testimony on each action was heard orally by the court and a consolidated judgment was rendered. The judgment granted Edith a divorce with alimony in gross and effected a property settlement. It further denied cancellation of the deed but ordered reformation thereof by adding Theodore as a joint grantee with Edith. James and Frances Pavlista appeal from that part of the judgment denying their request for cancellation of the deed. There is no appeal by either Edith or Theodore.

The only issue presented by the appeal is whether the trial court erred in,denying cancellation to the cross-plaintiffs Pavlista. We find no error and affirm.

The testimony revealed the following: Edith and Theodore purchased ten acres of land from James and Frances Pavlista shortly after their marriage in 1969. Title was taken jointly. In 1973, after discussion, largely between Edith and the parents of Theodore, a second ten acres was conveyed by the parents for a price of $3,-000.00. A deed was executed to Edith by the Pavlistas in the office of an attorney and a mortgage was taken from her for the purchase price. Payments were in the amount of $50.00 per month. The deed and mortgage were duly recorded. Payments were made from the joint checking account of Edith and Theodore for 18 months, totaling $900.00. Trouble began between Edith and Theodore in October of 1974, and suit for divorce was filed in December, 1974.

The elder Pavlistas stated they executed the deed intending to convey title to Theodore and Edith jointly. James Pavlista stated he did not read the deed when he signed, and his wife could not read. He claimed Edith had the deed prepared for his signature and that he had never seen the mortgage. •

Edith Pavlista denied preparing the deed, stating that it was prepared by an attorney at the request of James Pavlista. She further stated that James Pavlista requested the mortgage and had agreed that title be taken by her alone. Theodore testified that it was the agreement of all that title be taken jointly and that all payments had been made from his funds.

The trial judge found as fact from the evidence that James and Frances Pavlista intended that the conveyance be made jointly to Theodore and Edith. It also found that the absence of Theodore as a grantee was due to the fraud and deceit of Edith in the procuring of the deed. There is no challenge to this finding of fact by the court. Having found the presence of fraud, the court ordered the intention of the parties carried out by reformation rather than cancelling the deed.

James and Frances Pavlista charge that having determined that fraud was used in procuring the deed, reformation was error as a matter of law.

It is well established that relief by way of cancellation is a matter within the sound discretion of the trial court and is granted or withheld according to what is reasonable and proper in each case. 13 Am.Jr.2d, Cancellation of Instruments, § 4. A court of equity has the power to mold its decree to meet the equities developed at trial. It will not, in the name of equity, grant relief which is inequitable and unwise. BBC Investment Company v. Ginsberg, 280 Ala. 148, 190 So.2d 702.

Although recission is one of the equitable remedies available to the court on a showing of fraud, reformation is also proper. See Title 9, Section 59, Code of Alabama (1940). We feel that the evidence supports the court’s ruling granting reformation.

The judge’s finding that James and Frances Pavlista intended to convey the land to both Theodore and Edith is amply supported by the evidence, including the testimony of the grantors. Monthly payments on the land were made from the joint checking account of Theodore or Edith Pavlista. Until marital problems developed all parties concerned traveled under the impression that Theodore and Edith were the owners. Reformation merely imposed upon the parties their admitted intent, an intent supported by their conduct thereafter.

In addition to the admitted intent of the parties, the trial court was also concerned with the rights of Theodore Pavlista, a third party as far as the original deed was concerned. His earnings were the source of the money used to pay for the property. By reforming the deed to include his name as grantee, the court preserved his interest in the land. Allowing James and Frances Pavlista to rescind this deed, after accepting payments for 18 months, would have eliminated Theodore Pavlista’s interest in the property. The trial court could, within its discretion, deem such a result inequitable and unwise. Ginsberg, supra. No injury results to appellants as the court only placed in effect the original intent of all parties.

Affirmed.

BRADLEY and HOLMES, JJ., concur.