text:
    HUNTSVILLE DODGE, INC. and Mark Blevins v. Lora FURNAS.
    Civ. 1396.
    Court of Civil Appeals of Alabama.
    Aug. 16, 1978.

      James B. Schrimsher of Morring & Schrimsher, Huntsville, for appellants.
    Clellon K. Baeder, Huntsville, for appel-lee.
   BRADLEY, Judge.

This is an appeal by defendants from a judgment in favor of plaintiff for $5,500 and costs. We affirm.

Plaintiff Lora Furnas filed an action in the Circuit Court of Madison County against defendants Huntsville Dodge, Inc. and one of its salesmen, Mark Blevins, for misrepresentation in the sale of a used motor vehicle. The complaint alleged that during the negotiations for the sale of a 1973 Mazda automobile the defendants had represented to plaintiff that the engine of the automobile was in good condition and not in need of repair, and that, based on that representation, plaintiff purchased the automobile for $1,516 on January 5, 1976. The complaint further alleged that the engine of the automobile sold the plaintiff was, in fact, in bad condition and in need of repair.

Plaintiff’s complaint alleged that the defendants wilfully, recklessly, or innocently misrepresented the mechanical condition of the car’s engine, or that the defendants had withheld or concealed from plaintiff the fact that the car’s engine was in bad condition. The complaint claimed damages in the amount of $35,000. Defendants answered with a general denial.

Trial was had on September 26, 1977 before the court and a jury. On the following day the jury returned a verdict in favor of plaintiff for the amount of $5,500. Defendants’ motion for remittitur or a new trial was overruled by the trial court on November 4, 1977, whereupon the defendants perfected this appeal. Grounds for the motion for a new trial are that the jury’s verdict was excessive, and that the verdict was so excessive as to shock the conscience of the court and was the result of bias, passion and prejudice against the defendants.

The evidence in this case shows that the plaintiff Lora Furnas, nineteen years old, was an acquaintance of defendant Mark Blevins, a salesman for defendant Huntsville Dodge. Upon deciding to buy her first car, plaintiff asked Blevins to “be on the lookout” for a car for her. Blevins tried to sell plaintiff a Ford Pinto but the purchase price was too high. A week later Blevins informed plaintiff that Huntsville Dodge had for sale a 1973 Mazda with over 50,000 miles on it, and that plaintiff should come look at it. Because plaintiff was unable to come to defendants’ place of business at that particular time, Blevins brought the car out to plaintiff’s residence.

Plaintiff and her twenty-eight year old brother, Andrew Furnas, made inquiries of Blevins concerning the car’s tires, transmission, and engine. Blevins told them that the transmission and engine were in “good running condition.”

Plaintiff’s brother and Blevins then gave the car a “test drive,” with plaintiff following behind in her brother’s car. During the test drive the transmission seemed to “act funny,” and the three agreed to stop at Don Crews Mazda in order to investigate the problem. Plaintiff remained in her brother’s car while Blevins went into the showroom to find a mechanic.

Don Crews and a mechanic checked out the problem which was apparently caused by the choke being out. Crews informed the three that the transmission was in good shape.

Crews testified that he recognized the particular car brought in by plaintiff’s brother and Blevins, because of the car’s color and the name of the previous owner as listed in the owner’s manual. He had worked on the car two weeks earlier for the previous owner. At that earlier time he had determined that the car’s engine was “blown” because the seals in the engine had deteriorated allowing the engine to overheat. Crews further testified that he related this information about the blown engine to the salesman, but not to plaintiff nor to plaintiff’s brother. He also testified that he had no way of knowing whether or not the engine had been repaired in the interim between the time he had first determined that it was in bad condition and when plaintiff and her brother had brought it in for an inspection of the transmission problem.

Defendant Blevins testified that he had no personal knowledge of the car’s mechanical history, that he himself was not a mechanic, and that neither Crews nor anyone else had ever told him that the car’s engine was in bad condition. Blevins also testified that he had personally driven the car prior to the sale in order to assure that he was selling plaintiff a good car, that he would not have sold the car to plaintiff if he had thought the engine was in bad condition; and that plaintiff and her brother were free to question the mechanic at Don Crews Mazda to any extent they desired concerning the condition of the car.

Plaintiff purchased the car for $1,516 that evening after the test drive. The invoice and tag receipt listed plaintiff’s brother, Andrew Furnas, as the legal owner of the car. But all parties to the transaction understood that the plaintiff, Lora Furnas, was purchasing the car for her own use, with her brother co-signing the note for the car. Plaintiff and her brother understood that Huntsville Dodge sold the car to her “as is,” without any express or implied warranties, because the dealership at that time had no mechanics trained to work on foreign cars such as the Mazda.

Plaintiff encountered mechanical difficulties with the car that same evening. She had to add water to the radiator at'.that time, and “every day after that.” Plaintiff decided to take the car to Don Crews Mazda, where she was informed that repairs would cost $395. Plaintiff then took the car back to Huntsville Dodge. Huntsville Dodge, having hired a mechanic who was trained to repair Mazdas, told plaintiff that they could fix the car, but that the repair would cost approximately $800. Plaintiff left the car to be repaired. Huntsville Dodge allowed plaintiff free use of a new car while plaintiff’s car was being repaired, even though they usually rented such cars to customers during repairs.

After a week or two plaintiff returned to Huntsville Dodge, where her car’s engine had been disassembled. The new replacement engine had been ordered but had not yet arrived. Plaintiff demanded that the old engine be reassembled and put back in the car. After the engine was reassembled, plaintiff drove away in the car. Huntsville Dodge did not charge plaintiff for disassembling the old engine, nor for reassembling it upon plaintiff’s demand.

Mr. Clyde Hughes, general manager of Huntsville Dodge at the time plaintiff bought the car, testified that he had no knowledge of the condition of the car until plaintiff brought the car in for repairs. He further testified that after the engine in plaintiff’s car had been disassembled, and upon seeing that water had leaked into the cylinders, he offered to fix or replace the engine for free. Plaintiff specifically denied that this offer was made.

After leaving the premises of Huntsville Dodge, plaintiff drove the car to International Motor Cars. David K. Holland, a mechanic employed there, determined that the car’s engine seals had deteriorated as a result of engine wear. The deteriorated seals allowed water to leak into the combustion chamber and caused the engine to overheat. Holland testified that this was a common problem with this particular model of car, and that it would be better to replace the engine rather than rebuild it. The parts needed to repair plaintiff’s car were not ordinarily stocked in most automobile repair shops and had to be ordered from Gadsden.

On February 2,1976 plaintiff put down a deposit for the work with International Motor Cars. The installation of the new engine was completed on March 1, 1976, and International Motor Cars charged plaintiff $355 for this repair.

After the new engine was installed, Huntsville Dodge offered to buy back the car from plaintiff for the original price of $1,516. Plaintiff refused this offer. Thereafter plaintiff continued using the car, experiencing a few minor problems, but otherwise receiving good service from the car for a year. After using the car for a year, plaintiff put the car in storage at her parents’ home and moved to Hawaii. Thereafter her family occasionally drove the car until the engine was “shot again,” rendering the car unusable.

Counts One, Two and Three of plaintiff’s complaint are based on Code of Alabama 1975, § 6-5-101 [formerly Tit. 7, § 108, Code of Alabama 1940 (Recomp.1958)], which provides:

Misrepresentations of a material fact made willfully to deceive, or recklessly without knowledge, and acted on by the opposite party, or if made by mistake and innocently and acted on by the opposite party, constitute legal fraud.

Count Four of plaintiff’s complaint is based on Code of Alabama 1975, § 6-5-102 [formerly Tit. 7, § 109, Code of Alabama 1940 (Recomp.1958)], which provides:

Suppression of a material fact which the party is under an obligation to communicate constitutes fraud. The obligation to communicate may arise from the confidential relations of the parties or from the particular circumstances of the case.

Plaintiff’s claims also find support in Alabama case law which imposes a duty of disclosure on defendants under these facts. All persons are under a duty not to fraudulently misrepresent material facts to persons with whom they have business dealings. Ringer v. First Nat’l. Bank of Stevenson, 291 Ala. 364, 281 So.2d 261 (1973). Where, with intent to deceive, a party to a contract conceals material facts which good faith requires him to declare or disclose, it is the equivalent of false misrepresentation and fraudulent concealment. Southern Land Development Co. v. Meyer, 230 Ala. 40, 159 So. 245 (1935).

The evidence supports the jury’s verdict that defendants misrepresented a material fact which induced plaintiff to purchase the automobile in question; consequently, plaintiff was entitled to recover the actual damages proximately caused by the misrepresentation. Hall Motor Co. v. Furman, 285 Ala. 499, 234 So.2d 37 (1970). In this ease plaintiff’s actual damages were $355.62, i. e. the amount charged by International Motor Cars for the engine replacement.

However, defendants contend that the amount of damages awarded in excess of the actual damages, $5,145.38, was improperly allowed as punitive damages. We disagree with this contention.

The well established rule of law in Alabama regarding the award of punitive damages in cases of misrepresentation has recently been restated by the Alabama Supreme Court:

[P]unitive damages are only allowed where a material misrepresentation is made knowingly and falsely, was relied on by the injured- party, and the fraud was gross, malicious, oppressive and committed with an intent to injure.

Proctor Agency, Inc. v. Anderson, Ala., 358 So.2d 164 (1978).

The rule has been followed by the Alabama courts in numerous cases involving misrepresentations in the sale of motor vehicles. See, e. g., Hall Motor Co. v. Furman, supra; Harrelson v. Gowin, Ala.Civ.App., 348 So.2d 789 (1977); Ron Shafer Chevrolet v. Hires, Ala.Civ.App., 347 So.2d 1358 (1977); Continental Volkswagen, Inc. v. Soutullo, 54 Ala.App. 410, 309 So.2d 119 (1975). In each of these eases the plaintiff was allowed to recover only actual damages for the misrepresentation made in the sale of the automobile. Punitive damages were not allowed, for there was no showing that the misrepresentation was gross, malicious, and oppressive, and that the misrepresentation was made with the intent to deceive the plaintiff. (Moreover, the facts in the cited cases are easily distinguishable from the facts in the case at bar.)

Imposition of punitive damages in cases of misrepresentation is discretionary with the jury, acting with regard to the enormity of the wrong and the necessity of preventing similar wrongs. Treadwell Ford, Inc. v. Leek, 272 Ala. 544, 133 So.2d 24 (1961). Whether the misrepresentation is gross, malicious, and oppressive and committed with intent to deceive so as to authorize the award of punitive damages, is dependent upon the facts of the particular case. Maring-Crawford Motor Co. v. Smith, 285 Ala. 477, 233 So.2d 484 (1970).

Punitive damages have been allowed in cases involving misrepresentation in the sale of automobiles. In J. Truett Payne Co. v. Jackson, 281 Ala. 426, 203 So.2d 443 (1967), punitive damages were awarded where the seller of an automobile misrepresented to a buyer that the car being sold was “new,” when in fact the car had been previously purchased by the seller from another dealership as a used demonstrator. In Mobile Dodge, Inc. v. Ladnier, 45 Ala. App. 210, 228 So.2d 478 (1969), the seller misrepresented a used automobile as “new” to the buyer, when in fact the car had been previously sold by the seller to another buyer who had returned it after two months’ use. The court upheld the award of punitive damages, stating that, in considering the undisputed facts and testimony in the case, the jury might fairly have drawn the inference that the misrepresentation was gross, malicious, oppressive, and committed with the intent to injure or defraud. Id. at 213, 228 So.2d at 480.

Likewise, in the case at bar, we believe that the evidence and the inferences to be gleaned therefrom support the jury’s conclusion that punitive damages should be awarded. The record reveals that the jury heard testimony that prior to the sale of the automobile to plaintiff that the salesman was told that the engine was defective, yet he consummated the sale without informing the purchaser of this fact. Moreover, on appeal the presumption in favor of the correctness of the jury’s verdict is strengthened when the trial court refuses to grant defendants’ motion for a new trial. Byrd v. Fowler, 50 Ala.App. 596, 281 So.2d 647 (1973). Based on these facts and presumptions, the judgment of the trial court is affirmed.

AFFIRMED.

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


source: Caselaw Access Project

author: WRIGHT, Presiding Judge.

license: Public Domain

text:
    Marsha L. SHIRLEY v. Jimmy S. SHIRLEY.
    Civ. 1446.
    Court of Civil Appeals of Alabama.
    Aug. 16, 1978.
    Miles T. Powell, Decatur, for appellant.
    John S. Key of Eyster, Eyster, Key, Carmichael & Tubb, Decatur, for appellee.
   WRIGHT, Presiding Judge.

The issue presented by this case is: What is the effective date of the judgment of an appellate court in a divorce case when such judgment reverses the alimony and support provisions of the judgment of the trial court and directs the trial court to enter judgment for a greater amount?

Neither the research of counsel nor of this court discloses any appellate decision directly answering the issue presented. The trial court determined that the increase in alimony and support directed by the appellate court in this case was effective on the date of the judgment and mandate of the appellate court. We agree and affirm that decision.

The original judgment of the trial court was entered on August 6, 1976. Appeal was taken to this court and our judgment was entered on April 27, 1977. Rehearing was denied and writ of certiorari was granted by the Supreme Court of Alabama on August 10, 1977. On November 4, 1977 the writ was quashed. Appellant filed her motion in the trial court for entry of judgment in accordance with the direction of this court. The trial court responded and determined that the increases directed to be entered by the court were to begin as of the date of our judgment.

Counsel for the parties have submitted several authorities from other jurisdictions which are contended to support their position. We will not discuss these cases as some of them are easily distinguished from the situation existing in this case and none of them impress us as being directly in point.

A review of a final judgment on appeal is in effect a new case. Murphy v. Stewart, 43 U.S. 263, 2 How. 263, 11 L.Ed. 261 (1844). The jurisdiction of the trial court, at least in respect to the matters appealed is ousted and jurisdiction is reposed in the appellate court until it renders judgment with its mandate returning jurisdiction to the trial court. Its judgment becomes the law of the case as of that date. Douglass, Ex’r. v. City Council of Montgomery, 124 Ala. 489, 27 So. 310 (1899). The judgment by its terms may have retroactive application in some instances, particularly where there may have been a stay of the trial court’s judgment. In the absence of such direction, as in this case, the increase of support and alimony directed by this court is effective on the date of its judgment. It is our opinion that the rule applies even when the appellate court reverses and renders, entering the judgment the trial court should have entered under the authority of § 12-22-70, Code of Alabama (1975).

The reversal of a judgment, or a part thereof, wholly annuls it, or the part of it, as if it never existed. Birmingham Elec. Co. v. Alabama Pub. Serv. Comm’n, 254 Ala. 119, 47 So.2d 449 (1950). Another judgment rendered by a court with jurisdiction must thereafter replace it. Such was the effect of our reversal and remandment with direction in this case.

The judgment of the trial court is affirmed.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


author: PER CURIAM.

text:
    Tom J. VENTRESS, Director, Department of Industrial Relations for the State of Alabama, and the Department of Industrial Relations of the State of Alabama, and H. D. Lee Company, Inc. v. Shirley A. COKER.
    Civ. 1452.
    Court of Civil Appeals of Alabama.
    Aug. 16, 1978.
    Frank D. Marsh, Asst. Gen. Counsel, State of Alabama, Dept, of Industrial Relations, Montgomery, for appellants.
    Barry Mansell of Fine, McDowell & Man-sell, Russellville, for appellee.
   PER CURIAM.

This is an unemployment compensation case.

The claimant appealed to the circuit court after denial of her claim for compensation by the appeals referee and the board of appeal. The circuit court held the claimant was not disqualified for benefits. The state has appealed.

The dispositive issue is whether the claimant failed to sustain the burden of establishing from the evidence that she was “available for work” within the meaning of the statute. § 25-4-77(3), Code of Ala. 1975. We find the claimant did fail to meet her burden and reverse and remand.

This court has carefully reviewed the record and the only evidence relating to the proof of “availability for work” is the fact that the claimant went to the employment office in Florence prior to leaving her employment and her statement that she needed a job and money. This evidence is insufficient to meet the burden of “available for work.” See State of Alabama, Department of Industrial Relations and Gold Kist, Inc. v. Thompson, Ala.Civ.App., 359 So.2d 1158, and cases cited therein.

In view of the above, other issues raised need not be addressed.

Appellants’ “Motion to Modify Record on Appeal” is not well taken and is denied.

REVERSED AND REMANDED.

All Judges concur.


author: BRADLEY, Judge.

text:
    Malcolm M. PLUMMER v. Betty Deese PLUMMER.
    Civ. 1550.
    Court of Civil Appeals of Alabama.
    Aug. 16, 1978.
    Sam R. Shannon, Jr., Birmingham, for appellant.
    J. Sherrill Hancock, Birmingham, for ap-pellee.
   BRADLEY, Judge.

This appeal is the result of an order by the Circuit Court of Jefferson County, Birmingham Division, denying appellant’s motion under Rule 60(b) of the Alabama Rules of Civil Procedure. Appellant, Malcolm M. Plummer, filed a 60(b) motion seeking relief from a judgment of divorce arising out of appellee’s, Betty Deese Plummer’s, motion for a default judgment. Rule 55, ARCP. On appeal, appellant argues that the judgment of divorce rendered by the trial court warrants reversal because the affidavit for entry of default filed by appellee failed to state that appellant was not an infant or an incompetent person. Weaver v. Travel Inn, Inc., Ala., 350 So.2d 444 (1977).

The parties were married on March 5, 1977 and approximately four months later separated. Thereafter, appellee filed a petition for divorce. On December 7,1977 the lawyer who represented appellee submitted a request for the entry of a default judgment to the Jefferson County Circuit Court, Birmingham Division. Accompanying this request was the supporting affidavit of ap-pellee’s attorney which stated that appellant had been duly served with a summons and complaint in the matter and that appellant had allowed thirty days to elapse from the date of service without filing an answer to appellee’s complaint. The testimony of appellee (Betty Deese Plummer) was subsequently taken in open court and the circuit court rendered a final judgment divorcing the parties. Under the terms of this judgment appellant was ordered to pay appellee alimony in the sum of $400 as an attorney’s fee. In addition, appellant was directed to pay appellee another $3,000 as alimony in gross and upon receipt of that amount ap-pellee was to convey her interest in their jointly owned property to appellant. In the event that appellant did not pay the $3,000 within ninety days, he was to execute a deed conveying his interest in the property to his former wife (appellee).

Upon learning of the judgment of divorce rendered pursuant to appellee’s request for a default judgment, appellant made a motion to have the divorce decree set aside. This motion was denied. Later appellant sought to have the divorce judgment set, aside on the grounds that it was void. The court also denied this motion and from the court’s order denying his 60(b) motion appellant filed this appeal. We affirm the order of the circuit court.

Our supreme court recently held in Weaver v. Travel Inn, Inc., supra, that a default judgment which is deficient on its face is a nullity. In Weaver v. Travel Inn, Inc. the default judgment in question was deficient for a number of reasons including the fact that the affidavit for the judgment of default did not state that the party against whom default was sought was not an infant or incompetent person. Since the affidavit filed by appellee’s attorney in this case contained no statement that appellant was not an infant or incompetent person, appellant maintains that the holding in Weaver v. Travel Inn, Inc. renders the circuit court’s order granting a divorce on the basis of a default judgment a nullity. However, we cannot agree.

There is an important distinction between the facts upon which the supreme court’s decision in Weaver v. Travel Inn, Inc. was premised and the facts in the instant case. In Weaver v. Travel Inn, Inc. plaintiff sought to have the clerk of the court enter a default judgment against defendant. No testimony or evidence was heard by the circuit court. On the other hand, in the present case appellee requested that the circuit court enter a judgment for default in her favor. The court then held a hearing at which appellee testified and based on that testimony granted appellee a divorce from appellant. Thus, we believe that the court’s action was proper and that' it was not at variance with the supreme court’s ruling in Weaver v. Travel Inn, Inc.

Rule 55(e) of the Alabama Rules of Civil Procedure requires proof of a claim in default cases against infants, incompetents or parties to a divorce suit. Rule 55(e) states:

No judgment by default shall be entered against infants, incompetents, or parties to a suit for divorce or annulment of marriage unless the claimant establishes his claim or right to relief by evidence.

In the present case appellee’s testimony before the circuit court is not contained in the record on appeal. It is a well established proposition that evidence heard orally by the trial court is conclusively presumed to support the findings and decree of the trial court in all instances where such evidence does not appear in the record on appeal. E. g., English v. English, Ala.Civ.App., 352 So.2d 454 (1977); Cordell v. Poteete, 57 Ala.App. 645, 331 So.2d 400 (1976); Berggren v. Berggren, 52 Ala.App. 118, 290 So.2d 178 (1973), cert. den. 292 Ala. 713, 290 So.2d 180 (1974). Moreover, since a judgment of default cannot be entered against an infant or against an incompetent person unless such person is represented, we must also presume that from the testimony given by appellee, the circuit judge determined that appellant was neither an infant nor an incompetent person. For these reasons we cannot agree with appellant’s contention that the judgment of divorce entered by the circuit court in this matter was void.

In view of the state of the record on appeal, we find nothing which would warrant a reversal of the circuit court’s order denying the motion of appellant for relief from a final judgment under Rule 60(b). Therefore, we affirm the order of the circuit court denying such relief.

AFFIRMED.

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


text:
    UNITED STATES FIDELITY AND GUARANTY COMPANY, a corporation v. Minnie Lee PERRY, as Administratrix of the Estate of Kenneth E. Perry, Deceased, and as widow of Kenneth E. Perry, Deceased. UNITED STATES FIDELITY AND GUARANTY COMPANY, a corporation v. Lynn GULLEY, as Administratrix of the Estate of Roy David Gulley, Deceased, and as widow of Roy David Gulley, Deceased.
    Civ. 1560, Civ. 1560-A.
    Court of Civil Appeals of Alabama.
    Aug. 16, 1978.

      Ford, Caldwell, Ford & Payne and Robert L. Hodges, Huntsville, for appellant.
    Martinson & Beason and Douglas C. Mar-tinson, Huntsville, for appellees.
   WRIGHT, Presiding Judge.

This is an uninsured motorist insurance case.

The plaintiffs are the widows and admin-istratrices of the estates of Kenneth Perry and Roy David Gulley. Their decedents were killed while passengers in an automobile owned and driven by Jerry Ivey. The Ivey automobile entered the highway at an intersection and was struck by the automobile of Annie Miller. Neither Ivey nor Miller owned a policy of liability insurance covering their automobiles. Decedents and Ivey were employees of Douglas and Vandi-ver, a farming partnership and were acting within the line and scope of their employment at the time of the fatal accident.

Defendant USF&G is the insurer of Douglas and Vandiver. At the time of the accident there was in force a policy of general liability insurance, with uninsured motorist coverage issued by defendant upon several motor vehicles owned by Douglas and Vandiver. At the time of the accident, Ivey and decedents had been informed that cattle belonging to their employer were loose along the highway several miles away from the main farm where they were working. There being no motor vehicle belonging to their employer then unused and available, they proceeded in the automobile of Ivey to the place where the cattle were loose and secured them. It was while they were returning to the main farm that plaintiffs’ decedents were killed.

The evidence was undisputed that Ivey was driving. He came to the intersection, stopped at a stop sign and waited while an oncoming vehicle passed in front of them. He then drove slowly into the intersection without looking and was immediately struck in the right side by Annie Miller. Plaintiffs’ decedents were killed. It was undisputed that Ivey had the approval of his employer to use his automobile in the performance of his duties on occasion when the employer’s vehicles were not available. On such occasion, the employer furnished gasoline from their farm supply. Ivey placed gasoline in his automobile prior to setting out to round up the cattle on the morning of the accident. The automobile of Ivey was not designated as an insured vehicle in the defendant’s policy nor was Ivey a named insured.

Plaintiffs claimed against defendant under the uninsured motorist provisions of the employer’s policy. The claim was denied for lack of coverage. Plaintiffs brought suits which were consolidated. After trial there were jury verdicts and judgments against defendant and in favor of plaintiffs in each case for $10,000 with interest. In response to special interrogatories the jury found: (1) Ivey guilty of willful conduct causing the deceaseds’ deaths; (2) Annie Miller guilty of negligence causing the deaths; and (3) that the deceased were passengers in an insured vehicle within the terms of defendant’s policy of insurance. Defendant appealed.

The primary issue presented by the appeal is whether decedents were “persons insured” under the provisions of defendant’s policy so that they are entitled to claim the benefits of uninsured motorist coverage. This issue was preserved by motions of defendant for summary judgment, directed verdict, new trial, and judgment notwithstanding the verdict. It is our opinion that defendant was due a directed verdict. Considering the unconflicting evidence most favorable to plaintiffs, we find that reasonable minds could only conclude that the deceased were not insured under the plain terms of the policy. Wayland Distr. Co. v. Gay, 287 Ala. 446, 252 So.2d 414 (1971); Boggs v. Turner, 277 Ala. 157, 168 So.2d 1 (1964).

Definitions of “persons insured” are found in the uninsured motorist provisions and the liability provisions of the policy.

The uninsured motorist coverage provides that “persons insured” are “(a) the named insured and any designated insured and, while residents of the same household, the spouse of relatives of either; (b) any other person while occupying an insured highway vehicle; . . . ” Plaintiffs’ decedents were none of the persons insured in Section (a). Were they insureds under Section (b) because they were occupying an insured highway vehicle?

The uninsured motorist provisions of the policy describe an “insured highway vehicle” as any automobile owned by the named insured. The automobile occupied by plaintiffs’ decedents at the time of their deaths was not owned by the named insured. Plaintiffs contend that our appellate courts have said that the provisions or exclusions of the uninsured motorist coverage may not be decisive, but that the liability coverage may be looked to in order to determine the limits of uninsured motorist coverage. Plaintiffs are correct. In the case of State Farm Automobile Ins. Co. v. Reaves, 292 Ala. 218, 292 So.2d 95 (1974), our supreme court said inter alia that the wording of the statute would indicate the legislature envisioned that in a general liability policy having the “usual omnibus clause,” uninsured motorist coverage was intended to be extended to all persons insured thereunder, without regard to exclusions in the uninsured motorist coverage.

Therefore, we examine the liability provisions of the policy to determine if the deceased were “persons insured thereunder.”

Section II of the bodily injury liability coverage of the policy provides inter alia as follows: “Each of the following is an insured under this insurance to the extent set forth below:

“(a) The named insured.
“(b) Any partner or executive officer thereof.
“(c) Any other person while using . a hired automobile with the permission of the named insured, provided his actual operation or use thereof is within the scope of such permission . . . ”

Under “additional definitions,” the policy provides:

“ ‘Hired automobile’ means an automobile not owned by the named insured which is used under contract in behalf of or loaned to, the named insured, provided such automobile is not owned by or registered in the name of (a) a partner or executive officer of the named insured or (b) an employee or agent of the named insured who is granted an operating allowance of any sort for the use of such automobile.”

Plaintiffs’ argument is that the deceased were insured because they were using a hired automobile with the permission of the named insured, Vandiver. The evidence concerning the automobile is without conflict. It was not owned by the named insured. It was owned by the driver Ivey. The use of the ear by Ivey was for the named insured’s benefit and such use had been approved on irregular occasions in the past. Ivey had the implied permission of the named insured to use his automobile on this occasion. The deceased were employees, as was Ivey, of the named insured and were acting within the scope of their employment. The automobile was not being used under contract in behalf of or loaned to the named insured but was owned and being operated by an employee of the named insured. When, on occasion, Ivey used his automobile in his employment, he was given gasoline from the insured’s private pump. We have previously said Ivey had taken gasoline from the pump before setting out with the deceased on the occasion when they were killed.

It is essential to plaintiffs’ contention that the Ivey vehicle meet the policy definition of a hired automobile. We find it does not do so in at least two aspects. The evidence does not show either a contract for use in behalf of or a loan of the Ivey vehicle to or in behalf of the named insured. The use of his automobile by the employee Ivey in furtherance of his employer’s interest, even with actual or implied permission, does not of itself show a loan to the employer. Trinity Universal Ins. Co. v. Cincinnati Ins. Co., 513 F.2d 915 (6th Cir. 1975); Faribault Canning Co. v. Northwestern Nat’l Cas. Co., 298 F.2d 58 (7th Cir. 1961).

It is the opinion of this court that the evidence is without material conflict that the deceased were neither occupants of an insured automobile nor were they persons insured under the liability provisions of the policy. They were not persons for whose liabilities for bodily injury or property damage, arising from the use or operation of an insured vehicle, the defendant would have been legally obligated to pay under its policy. Thus they were not insureds under the uninsured motorist provisions of the policy.

It has previously been noted that one of the answers of the jury to submitted interrogatories was that Ivey was guilty of willful conduct causing the death of plaintiffs’ decedents. In order for plaintiffs to recover under uninsured motorist coverage, the deceased must have died as a result of injury caused by an uninsured highway vehicle. § 32-7-23, Code, supra. Their theory of right to recover because of Ivey’s conduct is inconsistent with their theory that Ivey was operating an insured vehicle. If the vehicle in which they were riding was an insured vehicle, we are unable to see how recovery could be had under the policy because of their driver’s conduct. The Ivey car cannot be insured for liability coverage and uninsured for uninsured motorist coverage.

The third issue presented has been settled in our opinion by the recent decision of our supreme court in Grantham v. Denke, 359 So.2d 785 (1978).

We also pretermit the issue of whether the evidence was sufficient to satisfy the scintilla rule as to the negligence of Annie Miller. In view of our determination, that defendant was entitled to a directed verdict for that the evidence failed to show that the plaintiffs’ deceased were persons insured under defendant’s policy, we reverse and remand.

REVERSED AND REMANDED.

BRADLEY, J., concurs.

HOLMES, J., concurs in the result.

      . § 32-7-23, Code of Alabama (1975).


text:
    Robert A. MARTIN v. AMERICAN EXPRESS, INC.
    Civ. 1459.
    Court of Civil Appeals of Alabama.
    Aug. 23, 1978.

      John D. Clement, Jr., Tuscumbia, for appellant.
    Charles N. Parnell, III, of Ingalls & Parnell, Montgomery, for appellee.
   BRADLEY, Judge.

This appeal is the result of an order by the Circuit Court of Montgomery County granting appellee’s (American Express, Inc.) motion for summary judgment.

In the summer of 1972 appellant (Robert A. Martin) applied for and was issued an American Express credit card. Approximately three years later, in April of 1975, Martin gave his credit card to a business associate named E. L. McBride. The reason for this action by Martin was apparently to enable McBride to use the card for the purpose of a joint business venture into which the two men had entered. Martin claimed that he orally authorized McBride to charge up to $500 on the credit card. However, in June of 1975 Martin received a statement from American Express which indicated that the amount owed on his credit card account was approximately $5,300. Martin denied that he had signed the credit card invoices which demonstrate that an amount has been charged to the cardholder’s account. Upon learning of Martin’s refusal to pay the charges incurred through the use of his credit card, American Express filed suit against Martin to obtain the money which it claimed Martin owed.

As the suit proceeded, American Express deposed Martin. In his deposition Martin admitted that he had given his credit card to McBride for use in a joint venture. Martin further stated that he did not know McBride very well, but that he (Martin) was not concerned about that fact because he told McBride not to charge more than $500 to his (Martin’s) credit card account. Martin was also relying on a letter which he had sent to American Express prior to giving his card to McBride. Martin testified that in this letter he asked American Express not to allow the total charges on his account to exceed $1,000. Moreover, in his deposition Martin indicated that McBride subsequently returned the credit card to him (Martin) and shortly thereafter disappeared.

On the basis of this deposition American Express moved for a summary judgment pursuant to Rule 56, ARCP. The trial court granted this motion and Martin filed an appeal to this court.

We believe that the trial court properly entered an order granting a summary judgment in favor of American Express and therefore affirm the trial court’s action.

Despite the various arguments presented by the attorneys in this case, we perceive only one issue before us on this appeal. That issue is whether the use of a credit card by a person who has received the card and permission to utilize it from the cardholder constitutes “unauthorized use” under the Truth in Lending Act, 15 U.S.C.A. § 1602(o) and § 1643(a). We hold that in instances where a cardholder, who is under no compulsion by fraud, duress or otherwise, voluntarily permits the use of his (or her) credit card by another person, the cardholder has authorized the use of that card and is thereby responsible for any charges as a result of that use.

Section 1643(a) , which is of principal concern in this case, limits a cardholder’s liability to $50 for the “unauthorized use of a credit card.” However, the statutory limitation on liability comes into play only where there is an “unauthorized use” of a credit card. Credit Card Service Corp. v. Federal Trade Comm’n, 161 U.S.App.D.C. 424, 495 F.2d 1004 (1974). And section 1602(o) defines “unauthorized use” as the “use of a credit card by a person other than the cardholder [a] who does not have actual, implied, or apparent authority for such use, and [b] from which the cardholder receives no benefit.”

American Express argues that the actions of Martin in giving McBride the credit card clearly demonstrated that Martin was not entitled to rely on the $50 limitation for unauthorized use of a credit card. Conversely, Martin relies on the familiar principle of agency law that a principal has the right to presume that his agent will act only within the sphere of his authority, and that in the absence of circumstances sufficient to place him on notice, a principal will not be held liable for his failure to ascertain that his agent is acting beyond the scope of his authority. University Chevrolet Company v. Bank of Moundville, 25 Ala.App. 506, 150 So. 557, cert. den. 227 Ala. 516, 150 So. 560 (1933). Thus, Martin submits that he cannot be held liable for the acts of his agent in that the latter was authorized to charge only $500 to Martin’s American Express account, yet exceeded his authority by charging in excess of that amount.

We fail to see the applicability of common law principles regarding agents and the scope of their authority to the statutory provisions in question. The Truth in Lending Act is to be liberally construed in favor of the consumer. Irvin v. Public Finance Company of Alabama, Ala.Civ.App., 340 So.2d 811 (1976)/ And its terms are to be strictly enforced. Irvin v. Public Finance Company of Alabama, supra. However, it is a well-settled rule of statutory construction that the plain language of a statute offers the primary guidance to its meaning. American Airlines, Inc. v. Remis Industries, Inc., 494 F.2d 196 (2d Cir. 1974). Accordingly, where the language found in the statute is clear and unambiguous and the words used therein plainly and distinctly demonstrate the intent of the framers of the statute, there is no occasion to resort to any other means of interpretation or to interject common law principles into the statutory provisions in question. See American Airlines, Inc. v. Remis Industries, Inc., supra.

We believe Congress clearly indicated that “unauthorized use” of a card would occur only where there was no “actual, implied or apparent authority” for such use by the cardholder. In the present case Martin maintains that the actual, implied or apparent authority given by him to McBride was limited to the $500 amount which Martin told McBride not to exceed. Thus, Martin says he gave no authority for McBride to charge the large sum which eventually resulted in this suit. Furthermore, Martin asserts that prior to giving the card to McBride, he (Martin) wrote American Express and requested that its employees not allow the amounts charged to his credit card account to exceed $1,000. And since no such action was taken, Martin argues that any sum charged in excess of $1,000 constituted an “unauthorized” charge on his credit card.

We cannot accept either of the above contentions. McBride was actually authorized by Martin to use the latter’s card. Martin admitted this fact. And the authority to use it, if not actual, remained apparent even after McBride ignored Martin’s directions by charging over $500 to Martin’s credit card account. Consequently, Martin was not entitled to rely on the provisions contained in section 1643(a) and he must be held responsible for any purchases made through the use of his card.

Nor are we aware of any requirement, either by statute, contract or trade usage, which would compel a credit card issuer to undertake a policy whereby the issuer would see to it that charges on a cardholder’s account do not exceed a specified amount. Such a policy would place a difficult and potentially disastrous burden on the issuer. We know of no authority which requires a card issuer to perform services of this nature and Martin has provided us with none. Rule 28(a)(5), ARAP.

The express intent of Congress in enacting the Truth in Lending Act was to protect the consumer or cardholder against charges for the unauthorized use of his or her credit card and to limit his or her liability for such unauthorized use to a maximum of $50 providing, however, that the conditions set forth in the statute are complied with. First National City Bank v. Mullarkey, 87 Misc.2d 1, 385 N.Y.S.2d 473 (1976). We believe that § 1643(a) clearly indicates that such protection is warranted where the card is obtained from the cardholder as a result of loss, theft or wrongdoing. However, we are not persuaded that section 1643(a) is applicable where a cardholder voluntarily and knowingly allows another to use his card and that person subsequently misuses the card.

Were we to adopt any other view, we would provide the unscrupulous and dishonest cardholder with the means to defraud the card issuer by allowing his or- her friends to use the card, run up hundreds of dollars in charges and then limit his or her liability to $50 by notifying the card issuer. We do not believe such a result was either intended or sanctioned by Congress when it enacted section 1643(a).

Based on the pleadings and deposition before it, the trial court concluded that there was no genuine issue as to any material fact and that the moving party (American Express) was entitled to a judgment as a matter of law. The court did not err in reaching such a conclusion. Accordingly, the judgment of the trial court granting American Express’s motion for summary judgment is affirmed.

AFFIRMED.

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

      . “A cardholder shall be liable for the unauthorized use of a credit card only if the card is an accepted credit card, the liability is not in excess of $50 . . ., and the unauthorized use occurs before the cardholder has notified the card issuer that an unauthorized use of the credit card has occurred or may occur as a result of loss, theft, or otherwise.”

      . This construction is supported by two of the conditions for limitation of liability in unauthorized use situations under § 1643(a). Those conditions are: (1) that the card issuer has provided the cardholder with a self-addressed,'' pre-stamped notification to be mailed by the cardholder in the event of loss or theft of the credit card; and (2) that the unauthorized use occurs before the cardholder has notified the card issuer that an unauthorized use of the credit card has occurred or may occur as the result of loss, theft or otherwise.

      . By this statement we do not mean to imply that Martin acted dishonestly or deceitfully in this matter. Indeed, he appears merely to be the victim of his own generosity.


author: HOLMES, Judge.

text:
    Henry H. LINDSEY v. Johnnie C. LINDSEY.
    Civ. 1482.
    Court of Civil Appeals of Alabama.
    Aug. 23, 1978.

      Bill Fite, Hamilton, Ernest G. Hester, Guin, for appellant.
    James K. Davis, for Fite, Davis & Fite, Hamilton, for appellee.
   HOLMES, Judge.

This is a divorce case.

The husband appeals and presents the following issues for review: 1. Did the trial court err to reversal in its division of property and award of child support? 2. Does the action of the trial judge in recusing himself from the case require reversal? 3. Did the trial judge err in excusing certain witnesses from “The Rule”?

We find no reversible error and affirm.

Viewing the record with the attendant presumption of correctness, we find the following pertinent facts: The parties were married in 1950 with six children being born of the union. Since their marriage, the husband became a licensed pharmacist and now has a net worth of approximately $300,000. He owns his own drug store which had a net income of approximately $88,000 in 1977.

The decree granting the divorce, on the ground of incompatibility, awarded custody of the parties’ two minor children to the wife. The husband was to pay $600 per month per child as child support and was further ordered to pay the wife $600 per month as alimony.

The wife was further awarded, as her separate property, the home and furnishings of the parties together with its 38 acres. The wife was also awarded an apartment which was located on this land. The trial court awarded the wife a 55 acre tract of land adjoining the 38 acres on which the homeplace is located. All of this land was valued by the husband at approximately $120,000.

In addition, the husband was ordered to pay the wife $75,000 within one year from the date of the decree.

The husband was awarded all other real estate and all the stock of Oden Shirey Drug Company, i. e., husband’s business. The real estate which the husband received included the lot on which his drug store stands; a lot in Brilliant, Alabama, valued at approximately $10,000; a 250 acre tract of land; an acre lot on Smith Lake. The husband was also awarded the parties’ savings account and a certificate of deposit valued at $36,000 along with various municipal bonds.

There was also evidence that the husband “ran around with other women” during the marriage.

The above does not state all of the facts as presented by counsel for the husband. We, however, deem the above sufficient in the instant case as no precedential or other value would be served by stating additional testimony or evidence.

Suffice it to say, we find no abuse of discretion by the trial court in its division of property and award of child support. As this court has often stated, the amount of child support to be awarded in a divorce decree depends oh the facts of each case. There is no mathematical formula for determining an appropriate award. See White v. White, Ala.Civ.App., 334 So.2d 908 (1976).

The above rationale applies as to divisions of property in that such does not have to be equal but must be graduated to the nature of the case. See Nix v. Nix, Ala.Civ.App., 348 So.2d 802 (1977).

In this instance, we find no plain and palpable abuse of discretion by the trial court so as to require reversal of either the division of property or award of child support.

Along the same line, husband contends the trial court failed to give enough weight to the evidence in the above award. The record clearly reveals the trial court did consider the husband’s indebtedness, the needs of the children, and the manner in which the parties’ property was obtained when the trial court issued its decree. To say the trial court did not put enough emphasis on this matter would require this court to substitute its judgment for that of the trial court. This, the law does not allow. See Sutton v. Sutton, 55 Ala.App. 254, 314 So.2d 707 (1975).

As noted above, the trial judge, to whom the case was originally assigned, re-cused himself from the case after the complaint, answer, interrogatories and the answers thereto had been filed. The husband contends the recusal was reversible error.

This court in Shell v. Shell, 48 Ala.App. 668, 267 So.2d 461, cert. denied 289 Ala. 751, 267 So.2d 467 (1972), stated that every judge should avoid sitting in a case where there is foundation for a reasonable charge of interest, bias, or prejudice.

In the present case, the trial court judge recused himself, on his own motion, because of his personal friendship with the parties in interest and his personal knowledge of facts to be litigated. In view of the above, we cannot say the trial judge erred in re-cusing himself from the case. See Shell v. Shell, supra; McGough v. McGough, 47 Ala.App. 223, 252 So.2d 646 (1970).

The husband additionally alleges as error the action of the trial judge in excusing certain witnesses from “The Rule.” Specifically, the trial judge excluded all witnesses from the rule who were relatives of the defendant. The plaintiff had subpoenaed these witnesses on the day of the trial. The only witness not excluded from the rule was one who had been subpoenaed by both parties and was not kin to either party.

The court in Lewis v. State, 55 Ala.App. 140, 313 So.2d 566 (1975), stated that the exclusion of witnesses from the courtroom is entirely a matter of discretion with the trial court, and not of right. It is within the discretion of the trial court to excuse some witnesses and not others. This discretion is not reviewable. See Beddow v. State, 39 Ala.App. 29, 96 So.2d 175 (1956), cert. denied 266 Ala. 694, 96 So.2d 178 (1957). In view of the above, we find no reversible error.

Lastly, the husband argues that the alimony section in the Alabama Code is a denial of equal protection and is unconstitutional. Husband did not raise this contention at trial but does so for the first time on appeal. The law in Alabama is settled in this regard in that the constitutionality of a statute will not be considered by this court when the question has not been presented to the trial court but is raised for the first time on appeal. See McWilliams v. McWilliams, Ala.Civ.App., 349 So.2d 59 (1977).

Por a further discussion of this issue, see this court’s decision of Orr v. Orr, Ala.Civ.App., 351 So.2d 904, cert. denied, Ala., 351 So.2d 906 (1977).

The above being dispositive of the issues in this appeal, this cause is due to be and is affirmed.

The wife has requested that an attorney’s fee be awarded for representation on appeal. A fee of $500 is hereby awarded.

AFFIRMED.

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


text:
    INTERLINK COTTON GIN COMPANY, INC. v. ELMER TALLANT INSURANCE AGENCY.
    Civ. 1488.
    Court of Civil Appeals of Alabama.
    Aug. 23, 1978.
    J. L. Chestnut, Jr., for Chestnut, Sanders & Sanders, Selma, for appellant.
    Robert W. Dick, Montgomery, for appel-lee.
   WRIGHT, Presiding Judge.

Defendant appeals from the denial of a motion for new trial.

Plaintiff brought suit on account for an unpaid insurance premium. Defendant counterclaimed for breach of an agreement to insure. The complaint and counterclaim were brought to issue and set for trial by jury. Defendant and counterclaimant moved for and was granted a continuance to the next scheduled docket.

At the next setting, on January 24, 1978, the record contains a judgment entry by default after jury verdict in favor of plaintiff and dismissal of defendant’s counterclaim for want of prosecution. Such entry was made in accordance with Rule 55(b)(2), ARCP, after defendant failed to appear for trial.

Defendant thereafter on February 3, 1978, filed a motion for new trial. Such motion is not proper procedure in this case, but it is being considered by this court as a motion to set aside the judgment by default under Rule 55(c), ARCP.

The motion alleges three grounds, all of which complain that defendant was not given timely and proper notice of the taking of the judgment. The argument in brief of defendant-appellant charges that the trial court abused its discretion in denying a continuance and a new trial. There is a statement of facts in the brief but no transcript of evidence taken on the hearing of the motion nor affidavits in support thereof. Thus the statement of facts is not supported by a record. This court has noth-mg before it to review in support of defendant’s argument. Whether a trial court abused its discretion is a matter to be determined in light of the events at the time. There being no record of the matters before the trial court at the time of its consideration of and ruling upon the motion, this court must presume its action to be correct and affirm its judgment. Logan v. O’Barr, 271 Ala. 94, 122 So.2d 376 (1960); Harvey v. Department of Public Safety, 56 Ala.App. 660, 325 So.2d 170 (1976).

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


text:
    In re Janet Louise Oliver SCHOTZ v. Donald D. OLIVER. Ex parte Janet Louise Oliver Schotz.
    Civ. 1541.
    Court of Civil Appeals of Alabama.
    Aug. 23, 1978.
    James F. Hinton, Gadsden, for petitioner.
    J. Todd Caldwell, Anniston, for respondent.
   BRADLEY, Judge.

Petitioner Janet Louise Oliver Schotz seeks review by writ of certiorari of an order of the Circuit Court of Calhoun County adjudging her in contempt of that court for failure to comply with the court’s order regarding visitation rights of respondent, Donald D. Oliver. Petitioner was sentenced to three days’ confinement in the Calhoun County jail and fined $200 plus court costs. We affirm.

The contempt citation upon which this petition is based was issued after a hearing by the court for petitioner’s failure and refusal to abide by the court’s order of January 10,1978, pertaining to respondent’s visitation rights. That order, amending an earlier order requiring monitored visitation privileges, provided that during the period from January 28, 1978 to the end of March 1978, respondent should have the right to visit Teresa on the first, second and fourth Saturday of each month from 9:00 a. m. until 6:00 p. m. On these visitation days petitioner was ordered to bring the child to the reading room of the Calhoun County Public Library in Anniston, Alabama. Respondent was to pick up the child at the library and return her by 6:00 p. m. to the same location. Commencing in April 1978 respondent’s visitation • rights were to be altered to include full weekend visits on certain weekends each month, a two week summer visit, and a two day Christmas visit.

On March 29, 1978 the court heard testimony ore tenus on respondent’s petition for rule to show cause why petitioner should not be held in contempt. This testimony indicated that on January 28,1978 petitioner, Teresa and Mr. Schotz arrived at the library at the designated time. However, petitioner and Teresa remained in the front seat of the ear, which was parked on the street in front of the library. They did not go to the reading room.

Respondent, petitioner and petitioner’s husband all asked Teresa if she would get out and go with respondent, but the child would not leave the car. Petitioner refused to compel the child to accompany respondent against the child’s will. Petitioner also refused to allow respondent to remove the child from the car, and respondent made no attempt to do so. Mr. Schotz then suggested that they drive to respondent’s home, where Teresa might be persuaded to leave the car. Upon arrival there Teresa still refused to leave the car, locking all the car doors. Respondent was unable to exercise his visitation rights that weekend.

Mr. Schotz testified that both he and petitioner tried to prepare the child for the next scheduled visitation. But they concluded that, in light of the child’s anxiety during the first attempted visitation and the continued insistence by the child that she did not wish to go, the only way to have accomplished the visitations would have been to forcibly drag or pull the child from the car. Petitioner refused to do this, and consequently, decided not to bring the child to the library for the scheduled visits. Respondent came to the library for the next three scheduled visits, but petitioner did not appear with the child.

The record in this case further reveals that respondent has not visited the child since the order of January 10th and has had the child in his home only once since respondent filed a petition for modification of his visitation privileges on May 19, 1977. That single visitation was exercised under a writ of assistance, whereby sheriff’s deputies went to petitioner’s home and attempted to pick up the child. Testimony indicates that petitioner told the child to hide from the deputies by running out the back door and into the nearby woods. However, the deputies were able to catch the child and deliver her to respondent for the visit. After being delivered to respondent, Teresa “squalled for about twenty minutes,” but otherwise seemed to enjoy the weekend visit with respondent.

Finally, the record indicates that during the hearing on the petition for rule to show cause, petitioner, speaking through her attorney, informed the court that she was not willing to force the unwilling child to visit with respondent as directed by the court. Nor is she willing to forcibly remove the child from the car in order to deliver custody to respondent. If the child were willing to visit respondent, petitioner says she would comply with the order by delivering the child to the designated location.

Petitioner argues that the trial court’s contempt citation is based not on the best interests of the child but on its desire to obtain obedience to its decrees and is, therefore, improper.

But the question of what is or is not in “the best interests of the child” is a question of fact not properly before this court. It is well established that the scope of review in contempt cases on certiorari is limited to questions of law. Reeder v. Reeder, Ala.Civ.App., 356 So.2d 202 (1978). Determinations of questions of fact, if there is any evidence to support the lower court’s decree, will not be disturbed. Hardy v. Hardy, 46 Ala.App. 249, 240 So.2d 598 (1970). The circuit court has determined that the interests of the child are best served by allowing visitation with the respondent. This determination is reflected in the several orders issued by the court in prior litigation between these two parties, each allowing such visitation rights. The evidence in the record of this case supports the court’s determination, and we will not disturb its findings on this point.

The trial court, after a full hearing, has determined that petitioner’s conduct was contemptuous. In order to insure that petitioner complied with its orders, the court found it necessary to punish petitioner. On the record we cannot state that the trial court was in error.

AFFIRMED.

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