text:
    ALABAMA POWER COMPANY, a corporation v. John Lesley MOSLEY et al.
    SC 831.
    Supreme Court of Alabama.
    July 31, 1975.

      Balch, Bingham, Baker, Hawthorne, Williams & Ward and James O. Spencer, Jr., Birmingham, and Inge, Twitty, Duffy & Prince, Mobile, for appellants.
    M. A. Marsal and Howell, Johnston, Langford, Finkbohner & Lawler, Mobile, for appellee, John Lesley Mosley.
   MERRILL, Justice.

This is an appeal by the defendant, Alabama Power Company, from a judgment for $40,000.00 in favor of plaintiff, John Lesley Mosley, and plaintiff-intervenor, Fireman’s Fund American Insurance Companies. The cause was submitted to the jury on four counts which alleged negligence on the part of Alabama Power in allowing high voltage uninsulated wires to remain near a billboard proximately causing Mosley’s injuries.

Plaintiff was employed by Lamar Advertising Company and was working as an outside sign painter. On June 12, 1969, he was painting a 12' x 50' billboard on Highway 90 west of Mobile. Mosley had just started to paint at the top, left-hand corner of the signboard when the rear end of the 12-foot, aluminum handle extension in his paint roller either touched a 7,200 volt line or got so near the line that the electricity arced from the line to the handle. Mosley fell approximately 20 feet and received injuries to the head, chest and abdomen, plus burns on one hand and one foot.

Defendant’s assignment of error No. 1 is that “the Court erred in improperly refusing to grant a new trial.” It argues four grounds of its motion for new trial in support of this assignment.

Defendant contends that the trial court committed reversible error in giving plaintiff’s requested charge # IS :

“The Court charges the jury that the three essential elements to establish contributory negligence in cases of this kind are that the party charged with contributory negligence (1) had knowledge of the existence of the dangerous condition, (2) with appreciation of such danger, (3) failed to exercise care for his own safety by putting himself in the way of such known danger.”

Mr. Charles H. Senior, Mobile District Superintendent for Alabama Power, testified in his deposition that there were six conductors or groups of conductors (including telephone lines) running perpendicular to the signboard; that there were six conductors or groups of conductors (including telephone lines) running parallel to the signboard; that the closest power line in the parallel plane was 9' 5" away from the face of the signboard; that these wires had no cover or wrapping on them; that there were no warning signs on the high voltage lines at the place of the accident in question.

Plaintiff, John Lesley Mosley, on cross-examination by counsel for defendant, testified as follows:

“Q * * *
And these photographs, all three of them, plainly show electric lines all in the pictures?
A Yes.
Q But you didn’t see them on June 12, 1969?
A Well, let’s say I wasn’t aware of those.
Q You were not aware of them ? Did you see .
A I wasn’t aware of the danger of them.
Q You weren’t aware of the danger of them?
A Well, I didn’t know what — I don’t guess I seen them.
Q But you’re not really sure ?
A Well, you know, they was there and I probably knew they was there.
I wasn’t aware there was any danger.
Q You probably knew those electric lines were there?
A Well, just like that pole. The sign was there. I knew the poles were there, holding up the sign.
Q And you probably knew the electric lines were there?
A Yes, sir; but I wasn’t aware there was danger.”

Defendant insists that plaintiff’s requested charge # 15 imposes an almost impossible burden of proof, namely, that it must be shown that plaintiff had attempted willful self-injury before he could be found guilty of contributory negligence. We disagree.

Charge # 15 is almost identical to the charge found in Alabama Pattern Jury Instructions, Civil, 30.05, page 489, under the heading “Assumption of Risk — Elements.” There, it is said that the instruction may be used for contributory negligence under certain conditions. It is not necessary to delineate those conditions here.

It has been said a number of times that the three elements essential to contributory negligence are that the party charged with contributory negligence (1) had knowledge of the condition or failure (2) appreciated the danger and (3) failed to exercise reasonable care in the premises, but with such knowledge and appreciation, put himself into the way of danger. Baptist Medical Center v. Byars, 289 Ala. 713, 271 So.2d 847; Kingsberry Homes Corp. v. Ralston, 285 Ala. 600, 235 So.2d 371; F. W. Woolworth Company v. Bradbury, 273 Ala. 392, 140 So.2d 824; Foster & Creighton Co. v. St. Paul Mercury Indemnity Co., 264 Ala. 581, 88 So.2d 825; Mackintosh Co. v. Wells, 218 Ala. 260, 118 So. 276.

Some of the cases cited supra involved assumption of risk. In others, there was a special duty of care imposed upon the owner of the premises. However, it has long been recognized that contributory negligence may also be predicated upon the failure to appreciate the danger when there is a reasonable opportunity to do so under the circumstances. Baptist Medical Center v. Byars, supra; F. W. Woolworth Co. v. Bradbury, supra; Foster & Creighton Co. v. St. Paul Mercury Indemnity Co., supra; Walker County v. Davis, 221 Ala. 195, 128 So. 144; Dwight Mfg. Co. v. Word, 200 Ala. 221, 75 So. 979.

In Walker County, supra, this court said:

“It is often said that from the fact that plaintiff had knowledge of the physical condition, it does not necessarily follow that he appreciated the danger, and that there must either be an appreciation of the danger, or an opportunity to do so and negligence in that respect. 20 R.C. L. 110, 111. It is sometimes said that the appreciation of the danger may be actual or imputed. 45 C.J. 946. And the negligence may consist in the failure to appreciate the danger when there is opportunity and knowledge sufficient to stimulate reasonable care in that respect. Dwight Mfg. Co. v. Word, 200 Ala. 221, 75 So. 979; 45 C.J. 947. * * *” (Emphasis supplied.)

Moreover, in Dwight Mfg. Co. v. Word, supra, it was said:

“ * * * Contributory negligence is not predicated solely on knowledge of the danger, and the certainty of injury to follow. If such were the rule, contributory negligence would be but a synonym for willful suicide or self-injury. If plaintiff had knowledge of facts sufficient to warn a man of ordinary sense and prudence of the danger to be encountered, and of the natural and probable consequences of his own conduct in the premises, then he was guilty of negligence if he failed to exercise ordinary care to discover and avoid the danger and the injury. 29 Cyc. 513, c; Id. 515, d; Sloss S. S. & I. Co. v. Reid, 191 Ala. 628, 68 South. 136. See, also, Curtis on Law of Elec. §§ 531, 537.”

The elements of contributory negligence —knowledge, appreciation of the danger, and failure to exercise reasonable care, — as contained in the questioned charge, may not be a complete statement of the law in every instance. In such an event, explanatory charges can supply any deficiency, and any deficiency in plaintiff’s requested charge # 15 was remedied by the giving of defendant’s requested charge # 25, which is as follows:

“I charge you that if you are reasonably satisfied from the evidence, that the plaintiff, John Lesley Mosley, on the occasion complained of knew of the presence of said electric wire referred to in the Complaint and knew that said electric wire was carrying a current of electricity and that it would be dangerous to life or limb for him to come in contact with said electric wire or in contact with any conductor of electricity which itself was in contact with said electric wire, or that by the exercise of ordinary care, John Lesley Mosley should have had such knowledge; then, the Court charges you that John Lesley Mosley was at the time and place referred to in the Complaint in this case under a duty to exercise reasonable care commensurate with such danger to avoid being injured by such wire; and if you are further reasonably satisfied from the evidence that John Lesley Mosley on the occasion complained of, was guilty of the slightest lack of due care which a reasonable and prudent man under the same or similar circumstances would have used and that such lack of due care proximately contributed to his injuries, then I charge you that you cannot find for the plaintiff and against the defendant, Alabama Power Company. (Emphasis supplied.)

The emphasized clause supplied any deficiency under the facts of the instant case.

Defendant also contends that the trial court erred in giving plaintiff’s requested charge # 1(a):

“The Court charges the jury that under the undisputed facts in this case that the Defendant’s 7,200 volt power lines adjacent to the sign in question were uninsulated lines as a matter of law as the term ‘insulation’ applies to the duty of a utility to insulate its lines carrying electricity of dangerous potential whenever such utility can reasonably anticipate that persons pursuing business or pleasure are likely to come in contact with such lines.”

This charge was apparently given for the purpose of clarifying the following additional testimony of Mr. Senior:

“Q Mr. Senior, you don’t mean to tell this jury that that wire out there that wasn’t wrapped with anything was insulated; do you?
A Yes, sir.
Q Well, what was it insulated with?
A It’s insulated, for one thing, with a ceramic insulator, and two, by air; and air is the finest — a perfect vacuum or air is still used in Thermos jars and whatnot. It’s one of the best insulators there is.”

This court quoted the following with approval in Dwight Mfg. Co. v. Word, 200 Ala. 221, 75 So. 979; Alabama Power Co. v. Cooper, 229 Ala. 318, 156 So. 854, and Alabama Power Co. v. Smith, 273 Ala. 509, 142 So.2d 228:

“ ‘The duty of an electric company, in conveying a current of high potential, to exercise commensurate care under the circumstances, requires it to insulate its wires, and to use reasonable care to keep the same insulated, wherever it may reasonably be anticipated that persons, pursuing business or pleasure, may come in contact therewith. This statement of the rule implies that, in the absence of statute or municipal ordinance, it is not necessary to insulate wires which are so placed that no one could reasonably be expected to come in proximity to them.' Curtis on Law of Electricity, § 510.”

Plaintiff’s requested charge # 1(a) may have been misleading in that it might have been understood to imply that Alabama Power breached its duty to exercise due care. Any deficiency, however, in the plaintiff’s requested charge was remedied by the giving of defendant’s requested charge # 6, which reads:

“The Court charges the jury that there is no duty upon an electric company with reference to insulating or safeguarding its wires from contact at a point where it cannot be reasonably anticipated that any person would likely or probably come in contact therewith or be injured thereby.”

Defendant next insists that the trial court erred in refusing to give defendant’s requested charge # 21:

“I charge you that John Lesley Mosley owed a duty to use ordinary care for his own safety and to that end to observe the conditions surrounding him while at work and the dangers, if any, which would be open and obvious to one using reasonable care and caution for his own safety and thereupon to use the care of an ordinarily prudent workman so as to carry on his work as to guard against injuries to himself, insofar as by such reasonable care he could protect himself; and I charge you that if you are reasonably satisfied from the evidence that John Lesley Mosley, on the occasion of the accident referred to in the Complaint, failed to exercise such reasonable care and caution for his own safety and that this failure proximately contributed to his injuries and damages, then you cannot return a verdict for the plaintiff.”

Though we do not say whether or not this charge was in every respect a correct statement of the law in this case, we are convinced that it was refused without error, because the same rule of law was substantially covered in defendant’s given requested charge # 34:

“I charge you that if you are reasonably satisfied form the evidence in this case that under all the circumstances and conditions existing at the time of the incident made the basis for this suit, the danger of coming into contact with said electrical wire or any conductor of electricity which was in contact with the said electrical wire was an obvious danger, which plaintiff, John Lesley Mosley, knew or in the exercise of reasonable care should have known in time to have avoided his injuries, and that nevertheless, said John Lesley Mosley negligently came into contact with said electrical wire or conductor of electricity which was in contact with the said electrical wire, as a proximate consequence of which he was injured, then you cannot return a verdict in favor of the plaintiff and against the defendant.”

One of the argued grounds of the motion for a new trial is that the verdict was excessive. Mosley was 28 years old at the time of the accident. The evidence presented at trial showed that plaintiff received second and third degree burns to one hand and one foot; that a skin graft was applied over the burned area on the left foot; that he had some broken ribs and a contused lung; that it became necessary to remove plaintiff’s spleen; and that he was unconscious for three days as a result of a head injury. Dr. Green, Plastic and Reconstructive Surgeon, gave plaintiff a 25% total permanent disability of the foot, and Dr. Robert Mudd, a neuro surgeon, gave him a 10% permanent partial disability to his body as a whole. The plaintiff was hospitalized twice for a total of 38 days and incurred $4,001.45 in medical expenses. Mosley did not return to work for almost six months and lost approximately $20.00 per week in wages not covered by Workmen’s Compensation.

Whether damages awarded for personal injuries are excessive depends on the facts of the particular case. Williams v. Williams, 283 Ala. 292, 216 So.2d 181; Durham v. Sims, 279 Ala. 516, 187 So.2d 558.

There is no fixed standard for ascertainment of compensatory damages recoverable here for physical pain and mental suffering, but the amount of such award is left to the sound discretion of the jury, subject only to correction by the court for clear abuse or passionate exercise of that discretion. Durham v. Sims, supra; W. S. Fowler Rental Equipment Co. v. Skipper, 276 Ala. 593, 165 So.2d 375.

The presumption in favor of the correctness of a jury’s verdict alleged to be excessive is strengthened when the trial judge, as here, overrules a motion for new trial. Durham v. Sims, supra; W. S. Fowler Rental Equipment Co. v. Skipper, supra.

We do not find in the verdict any abuse or passionate exercise of discretion or other improper motive.

Assignment of error No. 2 charges that the' court erred in refusing to grant defendant’s motion for a judgment notwithstanding the verdict.

This court has long been committed to the proposition that the plaintiff’s appreciation of the danger is almost always a question of fact for the determination of the jury. Bradbury, 273 Ala. 392, 140 So.2d 824; Ralston, 285 Ala. 600, 235 So.2d 371. A jury question was presented in the instant case.

We have also held that whether a plaintiff was guilty of contributory negligence is ordinarily a question of fact for the jury to decide under proper instructions. It becomes a question of law only when the evidence is so clearly insufficient to establish due care that all reasonable minds would reach the conclusion that there was contributory negligence. Foster & Creighton Co. v. St. Paul Mercury Ind. Co., 264 Ala. 581, 88 So.2d 825.

A question for the jury was presented and the court correctly overruled the motion for a new trial; and the motion for judgment notwithstanding the verdict was also properly overruled.

The remaining argued assignments of error are concerned with the refusal of the court to give some 5 written requested charges for the defendant and the giving of some 8 written charges requested by the plaintiff. In support of each of these assignments, the following statement is made in brief:

“Appellant’s argument set forth under Assignment of Error No. 1 above is incorporated here as its argument of this Assignment insofar as it relates thereto.”

We have held that it is permissible to adopt by reference the argument used in support of one assignment of error, in support of another; but the adopted argument must be pertinent to and supportive of the assignment of error for which it is adopted. Sealy v. McElroy, 288 Ala. 93, 257 So.2d 340.

It is not necessary to quote these charges. We are convinced that the refusal to give them did not constitute reversible error because they were covered by the oral charge, or, as to the 5 charges, by one of the 22 given written charges requested by the defendant.

ARCP No. 51 provides in part: “The refusal of a requested, written instruction, although a correct statement of the law, shall not be cause for reversal on appeal if it appears that the same rule of law was substantially and fairly given to the jury in the court’s oral charge or in charges given at the request of the parties.” This applies to most of the 5 charges in question.

Under the facts of this case, we find no reversible error in the giving of the 8 written charges requested by the plaintiff. The adopted argument under defendant’s assignment of error No. 1 was not pertinent to all of them.

Affirmed.

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


source: Caselaw Access Project

author: MERRILL, Justice.

license: Public Domain

text:
    The WATER WORKS, GAS & SEWER BOARD OF the CITY OF ONEONTA, INC., a corporation v. P. A. BUCHANAN CONTRACTING CO., a partnership, etc., et al.
    SC 1168, 1169.
    Supreme Court of Alabama.
    July 31, 1975.
    Simmons, Torbert & Cardwell, Gadsden, for appellant.
    Spain, Gillon, Riley, Tate & Etheredge and H. H. Grooms, Jr., Birmingham, for appellees.
   MERRILL, Justice.

These appeals are from judgments granting the motion of United States Fidelity & Guaranty Company (USF&G), a third party defendant, for a summary judgment in cross-claim against it by The Water Works, Gas & Sewer Board of the City of Oneonta, hereinafter referred to as the Board. We affirm.

In this case, we do not perceive any genuine issue as to any material fact, ARCP 56(c), and the only question presented is a question of law — whether, under the facts, USF&G is liable to the Board under the public works Completion and Performance Bond which it made for P. A. Buchanan Contracting Company, hereinafter referred to as Buchanan.

In August, 1952, Buchanan entered into a contract with the Board for the construction of a natural gas system for the City of Oneonta. USF&G executed the statutory public works Completion and Performance Bond and the Labor and Materials Bond. Goodwin Engineers of the South, Inc. and J. W. Goodwin Engineering Co. (also third party defendants) were the project engineers.

Buchanan completed the work; it was approved and accepted and Buchanan was paid in full under the terms of the contract in 1953.

On March 7, 1969, some 16 years later, a pipe exploded and damaged a building owned by Dorothy Gartrell. Her suit is S. C. 1168. Her husband, Dr. L. S. Gartrell, was a tenant in the building and his suit is S.C. 1169. The basis of each suit against the Board, Buchanan and the engineers was that the pipe was negligently laid and as a proximate consequence the building was damaged, and in S.C. 1169, Dr. Gar-trell’s practice was disrupted and records destroyed.

The Board filed a third-party summons and complaint against Buchanan, USF&G and the engineers. The engineers also filed cross-complaint against USF&G. USF&G filed a motion for summary judgment accompanied by affidavits. The Board filed its opposition to the motion.

The trial court found in favor of USF&G as to the cross-claims of the Board and the engineers, and rendered a summary judgment in favor of USF&G as to the Board and the engineers. Only the Board appealed.

The Board’s position is expressed in brief as follows:

“The pleadings consisting of the summons and complaint and third-party complaints and cross-claims in the transcript are all based on the claim by Appellant [the Board] here in that the performance bond is a common law bond and the contract between Appellant and P. A. Buchanan Contracting Company is made a part thereof, which includes page 11 of this contract. Accordingly, the question is whether or not it is a common law bond and whether the contract and bond are read together to require United States Fidelity & Guaranty Company to indemnify Appellant from any loss.”

The undisputed evidence is that the bond in question was required and given under the provisions of Tit. 50, § 16, Code 1940, which provides in pertinent part:

“Any person, firm or corporation entering into a contract with the state or any county or municipal corporation or subdivision thereof in this state for the repair, construction or prosecution of any public buildings or public work, highways or bridges, shall be required, before commencing such work, to execute a performance bond, with penalty equal to fifty percent of the amount of the contract price, * * *
“The contractor shall immediately after the completion of the contract give notice of said completion by an advertisement in some newspaper of general circulation published within the city or county wherein the work has been done for a period of four successive weeks. In no instance shall a final settlement be made upon the contract until the expiration of thirty days after the completion of same. * * *”

It is undisputed that these requirements were met.

This statute, Alabama’s public works bond statute, enacted in 1927 and amended in 1935, is patterned after the Miller Act, Tit. 40, §§ 270a & 270b, U.S. C.A. In State v. Southern Surety Co., 221 Ala. 113, 127 So. 805 (1930), this court, after comparing our statute with the federal statute in parallel columns, stated in part:

“The doctrine that a Legislature, in enacting a statute from another jurisdiction, enacts it with its authoritative interpretation, is universal and firmly established.
% ‡ ‡ ‡ *
“ * * * The rule is that the borrowed statute is presumed to come with its authoritative interpretation. We have cited our case to such effect.”

That decision was followed in National Surety Corporation v. Wunderlich (8th Cir.), 111 F.2d 622 (1940), where our public works statute was being construed and applied.

It is clear that a public works performance bond required by Tit. 50, § 16, carries with it the federal interpretation of the Miller Act.

This court has held that even when a bond under § 16 is not literally in statutory form, if it was given “for the purposes named in the statute and accepted and acted upon as such,” the statute will be read into the bond. Royal Indemnity Co. v. Young & Vann Supply Co., 225 Ala. 591, 144 So. 532. And in American Casualty Co. of Reading, Pa. v. Devine, 275 Ala. 628, 157 So.2d 661, this court said:

“With reference to said act, [Tit. 50, § 16] this court has said that there was no compulsion on the surety to execute such a bond, but since the surety did so, knowing the purpose for which the bond was given and being charged with knowledge of the law which required the bond, the bond must be construed and applied as if the parties making it had complied with the law. Universal Electric Const. Co. of Alabama v. Robbins, 239 Ala. 105, 194 So. 194. The bond shows on its face that it was executed in compliance with the statute and the court is authorized to read into it the provisions of the statute, ‘and give it the form and effect the statute contemplated, regardless of its contents.’ 239 Ala. 109, 194 So. 198. In short the statute is written into the bond.
“We are of opinion that if the statute is written into the bond as to the contractor and surety, the statute is also written into the bond as to the obligee and the suppliers of labor and materials who rely on the bond.”

A public works bond surety is not liable to third parties for injuries caused by negligence of the contractor-principal. The general rule is stated in 63 C.J.S. Municipal Corporations § 1172, p, 859:

“A bond to secure the performance of a municipal improvement contract is for the benefit and protection of the city and all property owners interested in the improvement, but it does not cover the claims of adjoining landowners for torts committed by the contractor in the performance of the work even though the contract provided that the contractor and his surety should be responsible for all damage caused by the contractor’s operations. * * * ”

Many federal court cases support this principle, some of which are: United States v. Fidelity & Deposit Co. of Maryland (D.C., La.), 144 F.Supp. 322; United States v. Mass. Bonding & Insuring Co. (6th C.A.), 18 F.2d 203; United States for use of Moran Towing Corp. v. Hartford Accident & Indemnity Co. (D.C.R.I.), 204 F.Supp. 353, and Tri-State Insurance Co. v. United States (8th C.A.), 340 F.2d 542.

In Stearns Law of Suretyship, 5th Ed., § 8.13, p. 269, the following appears: “Attempts have been made under statutory bonds to hold the surety for torts of the contractor or his employees. These attempts have been uniformly unsuccessful.”

All the authorities cited supra deal with either the performance bond or the labor and materials bond required by Tit. 50, § 16. These bonds are not public liability and property insurance.

The undisputed evidence is that Buchanan “took out a policy of public liability and property damage insurance with Liberty Mutual Insurance Company” and that this “policy remained in force and effect throughout the construction of the gas system in question.” It is also undisputed that USF&G did not furnish any liability insurance but furnished only the completion and performance bonds and the labor and materials bonds and that no claim had been made on either of the bonds either against the contractor Buchanan or USF&G in connection with completion and performance or payment for labor and materials.

The contract between the Board and Buchanan provided in part:

“1.15 SAFETY PRECAUTION AND INSURANCE COVERAGE:
“(1.15a) The Contractor shall, at his own expense, employ a sufficient number of night guardmen, erect necessary barricades and maintain an adequate number of danger lights or flags for public safety. Burning night flares shall be placed along open ditches at a suitable spacing not to exceed 50 feet on centers, and shall burn from sunset to sunrise.
“(1.15b)The Contractor agrees to take out and carry adequate public liability and property damage insurance and to hold the Owner and the Owner’s consulting engineers, J. W. Goodwin Engineering Company, the individual partners and Goodwin Engineers, Inc. harmless from any and all claims for damages which may result either directly or indirectly from the construction of any part of the work covered by this contract resulting from failure of material, inferior workmanship, neglect, obstruction of streets, excavation, collapsing structures, floating of structures, water, breaking or eruption of pipe lines, explosions, fires and any and all other causes which may result from the construction of this project by the Contractor or any acts either directly or indirectly by the Contractor, his sub-Contractors, his agents or employees, which insurance shall be for the period covered by this contract. Copies of evidence of this insurability shall be furnished to the engineers prior to the beginning of construction. However, regardless of not being furnished certificate of the insurability shall not relieve the contractor or the suretor from liability for the faithful compliance of this provision of the contract and the contractor and the suretor shall be liable for the full provisions of this paragraph as part of the completion and performance bond requirements of this contract.”

The completion and performance bond (Board’s Exhibit “C”) executed by the contractor and USF&G read:

“COMPLETION AND PERFORMANCE BOND
“KNOW ALL MEN BY THESE PRESENTS:
“THAT P. A. Buchanan Contracting Company as Principal, hereinafter called Contractor, and United States Fidelity & Guaranty Company Hereinafter called Surety, are held and firmly bound unto Waterworks and Gas Board of the City of Oneonta as Obligee, hereinafter called Owner in the amount of Six-Hundred-S eventy-Eight-Thousand-F our-Hundred-F orty-Nine-D ollars Twenty-Five-Cents ($678,44925). for the payment whereof Contractor and Surety bind themselves, their heirs, executors, administrators, successors and assigns, jointly and severally, firmly by these presents. WHEREAS, Contractor has by written agreement dated August 15th, 1952, entered into a contract with Owner for A Natural Gas System for the City of Oneonta, Alabama. In accordance with drawings and specifications or approved amendments thereto prepared by The Owner’s Engineers, which contract is by reference made a part hereof, including all the obligations thereunder, and is hereinafter referred to as the Contract.
NOW, THEREFORE, The condition of this obligation is such that, if Contractor shall promptly and faithfully perform said contract, including all the obligations thereunder, then this obligation shall be null and void; otherwise it shall remain in full force and effect. Whenever Contractor shall be, and declared by Owner to be in default under the Contract, or any part thereof, the Owner having performed Owner’s obligations thereunder, the Surety may promptly remedy the default, or shall promptly at Owner’s option
“(1) Complete the Contract in accordance with its terms and conditions,
OR
“(2) Obtain a bid or bids for submission to Owner for completing the Contract in accordance with its terms and conditions, and upon determination by Owner and Surety of the lowest responsible bidder, arrange for a contract between such bidder and Owner and make available as work progresses (even though there shall be a default or a succession of defaults under the contract or contracts of completion arranged under this paragraph) sufficient funds to pay the cost of completion or any obligations thereunder.
“Any suit under this bond must be instituted before the expiration of two (2) years from the date on which final payment under the Contract falls due.
“SIGNED AND SEALED THIS 15th DAY OF Aug A.D., 1952.”

This is an ordinary performance bond required under Tit. 50, § 16.

The common practice of referencing in the surety bond the construction contract between the Board and the contractor does not change a Tit. 50, § 16 statutory performance and completion bond into either a common-law bond or a liability insurance policy for the payment of tort claims. United States v. Mass. Bonding & Ins. Co., supra; United States for use of Moran Towing Corp. v. Hartford Accident & Indemnity Co., supra; Kniess v. American Surety Co. of New York, 239 Wis. 261, 300 N.W. 913.

The trial court correctly held that, as a matter of law, the motion for summary judgment was proper in this case.

Affirmed.

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


author: FAULKNER, Justice.

text:
    COOSA MARBLE CO., INC., etc., et al. v. Sarah S. WHETSTONE, as Executrix, etc.
    SC 1143.
    Supreme Court of Alabama.
    July 31, 1975.

      A. H. Gaede, Jr. and Samuel H. Franklin, Birmingham, for appellants.
    Bell & Lang, Sylacauga, for appellee.
   FAULKNER, Justice.

Trustees of Coosa Marble Company, Inc. appeal from a denial of a motion for new trial, and a decree of the Circuit Court of Talladega County awarding real estate commissions to Whetstone. Whetstone filed a motion to dismiss the appeal because of its untimely filing. The case was heard on the motion and the merits. ' We grant the motion to dismiss.

William D. Whetstone sought an accounting in equity for commissions due on a real estate agency contract. He died before the conclusion of the suit. On March 18, 1974, the trial court entered a decree in favor of the executrix of Whetstone’s estate, against the trustees. On April 10, the trustees mailed a motion for new trial to the clerk. They received a return letter dated April 10 from the clerk, saying the motion had been received and filed May 11. The correct filing date was April 11. On June 5, the trial court heard the motion for new trial. Having received no word from the court, the trustees, by letter dated July 31, informed him the 90-day period under Rule 59.1, A.R.C.P. would expire August 11. The court denied the motion on August 9.

On January 22, 1975, the trustees notified the trial court of their appeal from his order. The appeal to this court was perfected on January 24. Whetstone filed a motion to dismiss on February 17, alleging the appeal was untimely filed.

The trustees obtained leave from this court to file a motion in the trial court under Rules 60(b) and 77(d) A.R.C.P. On March 14, that court denied relief by concluding the four months time limitation under Rule 60(b)(1) had expired; insufficient facts were shown to activate 60(b)(6), and 77(d) applied only to written orders. The trustees then filed in this court a motion for relief under 59.1; a motion to consolidate the appeal, the motion to dismiss, and the motion for relief. The motion to consolidate was granted.

Traditionally, the six months time limit for taking an appeal begins to run from the date of a court order denying a motion for new trial. W. E. Owens Lumber Co. v. Holmes, 277 Ala. 557, 173 So.2d 99 (1965). This tradition was broken when Rule 59.1 A.R.C.P. was adopted. Under Rule 59.1, a motion for new trial shall not remain pending in the trial court for more than 90 days, without the express consent of all the parties, or unless extended by the appellate court to which an appeal of the judgment lies. A failure of the trial court to dispose of the motion within the 90 days constitutes its denial on the expiration of that period. Here, there was neither express consent of all the parties to extend the time, nor was the time extended by this court. Consequently, the motion was denied by operation of Rule 59.1 on July 10. The appeal period began to run from that date — not August 9, the date of the trial court’s order. His order was a nullity. The appeal should have been perfected by January 11,1975.

The motion to extend the time to file an appeal under Rule 59.1 was filed in this court on April 2, 1975. We construe the words, “unless extended by the appellate court to which an appeal of the judgment would lie” to mean, the motion must be filed in this court before the expiration of the 90-day period. Following our construction, the motion came here too late for our consideration.

The trustees contend that their failure to appeal timely was the result of excusable neglect. Therefore, relief should be granted to them under Rule 60(b). We do not agree. The relief sought by their motion was an extention of time to appeal. A Rule 60(b) motion is an attack on the judgment. The motion neither affects the finality of a judgment not tolls the time for appeal. Moore’s Federal Practice, Vol. 7, ¶| 60.29, p. 414. An order denying a Rule 60(b) motion presents for review only the correctness of that order. The final judgment is not for review. Furthermore, the motion in this case was filed more than four months after the order. Thus, the provision of the rule relating to 60(b) was not met.

We conclude the trial court was correct in denying the motion. Moreover, there was no abuse of discretion for denying the motion based on the 60(b)(6) reason. The undisputed facts show the appeal was untimely filed because of the misdated response of the clerk. The trustees knew the basic facts. They should have discovered the error.

The trustees further contend they should have relief under Rule 77(d). The trial court denied this motion on the ground that Rule 77(d) applies solely to written orders and judgments of the court. We agree. Here, the motion for new trial was denied by operation of Rule 59.1. There was no need for a written order by the trial court. The trustees concede there was no duty on the clerk to notify them of the automatic denial. They also concede they knew the date of the final judgment. Accordingly, we are of the opinion Rule 77(d) is inapplicable.

Appeal dismissed.

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


author: SHORES, Justice. MADDOX, Justice

text:
    DIXIE ELECTRIC COMPANY, a corp., and Ralph Miller v. A. J. MAGGIO.
    SC 964.
    Supreme Court of Alabama.
    July 31, 1975.

      James W. Garrett, Jr., and William B. Moore, Jr., Montgomery, for appellants.
    Charles H. Volz, Jr., and Al J. Sansone, Montgomery, for appellee.
   SHORES, Justice.

This appeal is from a judgment rendered on a verdict in a personal injury action brought by A. J. Maggio against Dixie Electric Company, a corporation, and Ralph Miller, its employee. Mr. Maggio sought damages for injuries allegedly resulting from negligence and wanton misconduct of the defendants. Both counts were submitted to the jury which awarded the plaintiff $43,000.

The facts out of which this litigation arose are:

On June 6, 1973, defendant Ralph Miller parked a Dixie Electric pickup truck in a parking space on South Court Street in Montgomery. The truck was parked in such a manner that the. rear of the truck faced the public sidewalk. An extension ladder, which was positioned on top of the truck, projected beyond the rear of the truck and out over the public sidewalk. Mr. Maggio, walking north on the public sidewalk on South Court Street, struck his head on the protruding ladder and fell to the sidewalk, receiving severe injuries.

The rear wheels of the truck were on a crack, which was the point at which the sidewalk began. At the time of the accident, there was no flag or any warning device on the ladder. Immediately after the accident, Mr. Miller moved the truck forward and flagged the ladder.

Appellants list seventeen assignments of error on this appeal, which raise two basic issues: (1) Whether the trial court erred in submitting the question of defendants’ alleged wantonness to the jury; and (2) whether the trial court erred by admitting into evidence the testimony that Mr. Miller pulled the truck forward and placed a flag on the protruding ladder subsequent to the accident.

Appellants argue that the court erred in refusing their motion for a directed verdict on the wanton count. In brief, they say that “From an examination of the evidence . . . there is certainly not a speck of testimony which would show that Ralph Miller demonstrated a will or intention to injure Mr. Maggio.” We agree. But, that is not the test of wantonness.

‘Wantonness’ is the conscious doing of some act or the omission of some duty under the knowledge of the existing conditions, and conscious that from the doing of such act or omission of such duty injury will likely or probably result. . . . ” Kilcrease v. Harris, 288 Ala. 245, 251, 259 So.2d 797, 801 (1972); Culpepper & Stone Plumbing & Heating Co. v. Turner, 276 Ala. 359, 162 So.2d 455 (1964). One may be guilty of wanton misconduct without actual intent to injury anyone. Birmingham Railway, Light & Power Co. v. Murphy, 2 Ala.App. 588, 56 So. 817 (1911). In this sense, “. A willful or intentional act is not involved in wantonness . . .” Atlantic Coast Line R. Co. v. Brackin, 248 Ala. 459, 461, 28 So.2d 193, 194 (1946). “. . . wantonness may arise where the defendant has knowledge that persons, though not seen, are likely to be in a position of danger and with conscious disregard of known conditions of danger . . .” Crocker v. Lee, 261 Ala. 439, 444, 74 So.2d 429, 434 (1954). The knowledge requirement of wantonness “need not be shown by direct proof, but may be shown by adducing facts from which knowledge is a legitimate inference.” Kilcrease v. Harris, supra (288 Ala. at 252, 259 So.2d at 802).

In determining whether the plaintiff presented sufficient evidence to submit the wanton count to the jury, we must look to well-established guidelines. “. . .a question must go to the jury, if the evidence, or any reasonable inference arising therefrom, furnishes a mere gleam, glimmer, spark, the least particle, the smallest trace, or a scintilla in support of the theory of the complaint. . . .” Kilcrease v. Harris, supra (288 Ala. at 252, 259 So.2d 802). The question should be taken from the jury only when there is not a scintilla of evidence in support of the controverted point. Additionally, in determining the sufficiency of the evidence, this court must presume the jury’s verdict was correct, and will not set aside such verdict unless the preponderance of the evidence is so against the verdict as to convince this court that it is wrong and unjust. Kilcrease v. Harris, supra; Tallapoosa River Electric Coop., Inc. v. Burns, 271 Ala. 435, 124 So.2d 672 (1960).

The jury in the instant case could conclude from the evidence that the defendant Miller (1) knew that the ladder projected beyond the truck body; (2) knew that it was possible for someone walking near the truck to strike his head on the ladder; (3) that knowing this, he parked portions of the vehicle on the public sidewalk in violation of a city ordinance; and (4) that he knew the rainy conditions would limit visibility of pedestrians using the sidewalk. Thus, we cannot say there was not a scintilla of evidence from which the jury could find that the defendant Miller acted in reckless disregard of the consequences of his act.

Whether the dangerous situation created by the defendant “. . . resulted from mere inadvertence or inattention, which would be nothing more than negligence; or whether . . . from a conscious indifference to the likely or probable consequences, which would be wantonness, was a question for the jury.” Culpepper & Stone Plumbing & Heating Co. v. Turner, supra (276 Ala. at 365, 162 So.2d at 460.). The court did not err in refusing to direct a verdict in favor of defendants on this count.

The second issue presented by this appeal concerns testimony that subsequent to the accident the truck was moved forward and a flag placed on the end of the projecting ladder. The appellants insist that this is evidence of a subsequent change or repair and, as such, is inadmissible to show negligence on the part of the defendant.

It is true that evidence showing repairs to machines, streets, or the like, after an injury, is generally not admissible to show negligence, II Wigmore on Evidence, Third Edition, § 283, page 151, but it is equally true that the condition of a place or thing at the time of an injury may always be shown.

The record shows that Mr. Maggio hit his head on the ladder which protruded over the sidewalk at around noon on June 6, 1973. It was cloudy and raining at the time. He fell to the ground, having fractured his hip. Mrs. Margaret Mock worked in the Wilson Building where the Dixie Electric truck was parked. She said someone came in to call the police and she went outside and saw Mr. Maggio lying on the sidewalk in the rain, and also saw Mr. Miller come out and pull the truck up and put a flag on the ladder. A Mr. Mitchell testified that he worked in the Wilson Building and, upon hearing that there had been an accident, went outside and observed the truck parked at the steps of the building and saw someone helping Mr. Maggio to the back seat of an automobile. A Mr. Pugh testified that he was walking down Court Street and saw a man helping Mr. Maggio into the back of an automobile and he, Mr. Pugh, called an ambulance and saw Mr. Miller move the truck forward and place a flag on the ladder. Mr. Miller affirmed these actions. All of this occurred minutes after the accident and before the police or ambulance arrived.

We think this evidence was admissible as a part of the res gestae.

At § 413, 31A C.J.S. Evidence, the rule is summarized:

“Statements or acts, although subsequent to the main or principal event, which are so intimately interwoven with it by the surrounding circumstances as to raise a reasonable presumption that they were made or done under the immediate influence of the principal transaction or event itself, rather than the result of premeditation or design, are admissible.”

Also:

“. . . acts or statements which, although subsequent in point of time to a personal injury, follow at once thereafter and serve to characterize the occurrence, or which are done or made under such circumstances as to exclude the possibility of premeditation or design and which are so close to the injury as to be fairly a part of the occurrence, are admissible as part of the res gestae. . .” [Citing Alabama Power Company v. Adams, 31 Ala.App. 438, 18 So.2d 145 (1944)]

In Alabama Power Company v. Adams, supra, the Court of Appeals had the following to say about the rule:

“. . . ‘ * * * it is impossible, “ ‘to lay down a general rule as to the acts or declarations which will be received as forming a part of the res gestae. Each case is dependent in a great degree on its peculiar facts and circumstances. Such acts or declarations as are thus received must have been done or made at the time of the occurrence of the main fact, must have a tendency to elucidate it, and must so harmonize with it as obviously to constitute one transaction. It is not essential that they should be precisely concurrent in point of time with the main fact; if they spring out of the transaction; if they elucidate it Bozeman v. State, 25 Ala.App. 281, 145 So. 165, 166.” (31 Ala.App. at 440, 18 So.2d at 146.)

Alabama Power Company v. Adams, supra, refers to Vol. 1, Wharton’s Evidence, 10th Ed., page 504, § 263, where the following was approved by this court in Sexton v. State, 239 Ala. 287, 196 So. 744 (1940):

“ ‘. . .“ * * * It is well settled that the res gestae includes those circumstances which are the undesigned incidents of a particular litigated act. They may be separated from the act by lapse of time more or less appreciable, and may consist of speeches of any one concerned, whether participant or bystander. They may comprise things left undone as well as things done. They must be the necessary incidents of the litigated act in this sense that they are part of the immediate preparations for or emanations of such act, and are not produced by the calculated policy of the actors. [Citation Omitted]; * * *.” ’ ” (31 Ala.App. at 440, 18 So.2d at 147)

The acts here clearly fall within this rule. Mr. Maggio had just hit his head on the ladder and had fallen to the ground. As an immediate reaction to the emergency, some people were helping him to a nearby automobile, another called an ambulance, and others offered to help. Mr. Miller pulled the truck forward and put a flag on the ladder. All of this was one continuing transaction incident to and flowing from the “main event,” the accident. It certainly tends to elucidate the scene and was, therefore, properly received as evidence.

The evidence complained of was properly admitted as a part of the res gestae and its admissibility is not precluded as argued by appellants as being evidence of subsequent change or repair.

The statement of Mr. Miller, made on deposition, and received in evidence that “I eased it ahead a little bit; how far, I don’t know. And I put a red flag on it. I figured if one 'fellow cracked his head, I would put a red flag on it and there wouldn’t be two. So, that is all.” It was admissible under another well-known rule of evidence:

“ . . . the admissions of a party made directly by him, or through his agent duly authorized to speak for him, or by a privy, relative to the subject matter of a suit, are admissible in evidence against such party where they are inconsistent with the claim he asserts in the action . . . ” 29 Am.Jur.2d, § 600; Mitchell v. Kinney, 242 Ala. 196, 5 So.2d 788 (1942).
“ . . . Declarations against interest are generally admitted without regard to the time when they were uttered. . ” 29 Am.Jur.2d, § 605.

The statement by Mr. Miller is not consistent with the position he took at the trial. There, it was his claim that the ladder did not extend so far over the sidewalk as to constitute a danger to pedestrians, and that the truck cleared the sidewalk. His declaration to the contrary was admissible under the above rule.

The judgment appealed from is, therefore, affirmed.

Affirmed.

HEFLIN, C. J., and MERRILL and JONES, JJ., concur.

MADDOX, J., concurs in the result.

MADDOX, Justice

(concurring in the result).

I concur in the result. I cannot agree that the placing of the red flag on the ladder after the accident was a part of the res gestae. The majority cites Sexton v. State, 239 Ala. 287, 196 So. 744 (1940), which defines res gestae as “the unde-signed incidents of a particular litigated act.” [Emphasis added]. The driver’s statement that he put a red flag on the ladder because “[he] figured if one fellow cracked his head, [he] would put a red flag on it and there wouldn’t be two,” was not an “undesigned incident,” in my opinion. In fact, his statement indicates he did it by design. Nevertheless, I think the fact that the red flag was placed on the ladder was admissible but for a different reason to show that there was no flag on the ladder at the time of the accident. However, I think such evidence was permissible only to show the condition prior to the accident, and should not have been permitted as an admission of negligence. City of Montgomery v. Quinn, 246 Ala. 154, 19 So.2d 529 (1944).

As I understand our law, such evidence is admissible under limited circumstances, if the trial judge restricts the effect of the evidence to avoid the risk of a party’s misusing it. In other words, I believe that the trial court can limit, by instruction, the effect of such evidence, but I also believe that the better opinion is that the opponent of the evidence must ask for the instruction. See City of Montgomery v. Quinn, supra. The opponent of the evidence made no such request for a limiting instruction here. Consequently, I concur in the result reached by the majority that there was no error shown here.


author: EMBRY, Justice.

text:
    Philip F. COHEN v. Daisy Lee WILLIAMS, as Administratrix of the Estate of Daisy Burrell.
    SC 1094.
    Supreme Court of Alabama.
    Aug. 21, 1975.

      Marr & Friedlander, and Daniel G. Sayers, Mobile, for appellant.
    Pillans, Reams, Tappan, Wood, Roberts & Vollmer, and William W. Stoudenmire, Mobile, for appellee.
   EMBRY, Justice.

This appeal by Philip F. Cohen is from a decree of the Circuit Court of Mobile County against him and in favor of Daisy Lee Williams, the personal representative of Daisy Burrell, deceased. The decree was entered after oral hearing by the court without a jury. Action was brought on a judgment against Mobile Roofing and Construction Company, Inc., a corporation, that had previously been entered in favor of Daisy Burrell. The complaint invoked equitable principles to enforce that judgment against Cohen personally on the theory that Cohen so controlled the corporation, and conducted its business, as to make it merely his instrumentality and to permit the fiction of separate corporate entity to continue would allow the corporation to evade its just responsibilities.

The facts, as disclosed by the record, can be summarized as follows: Mobile Roofing was incorporated twenty-five to twenty-eight years prior to trial. It subcontracted home construction work, taking mortgages which were immediately assigned to a bank. Its subcontractors were paid with the funds derived from the assignments.

Sometime prior to 1967 Daisy Burrell contracted with Mobile Roofing for it to construct a house for her. During the term of that contract Cohen became the sole stockholder, director and officer of that corporation although at various times prior thereto there had been as many as two other stockholders, directors and officers. In June 1971 Daisy Burrell ré-covered judgment against Mobile Roofing in the amount of $11,000 on a cause or causes of action arising from that contract or the conduct of Mobile Roofing during its existence. Cohen “dissolved” the corporation because of the judgment by going out of business (there was no evidence that the “dissolution” was effected by compliance with legal formalities).

For ten or twelve years prior to trial there had been no meetings of stockholders or directors; no minutes of any meetings existed. Cohen had freely withdrawn money from profits of Mobile Roofing; he had borrowed money on an insurance policy and paid debts of the “dissolved” corporation with these personal funds but had not paid on the Burrell judgment. After hearing this evidence the trial court entered judgment against Cohen personally in the sum of $11,000.

The question presented for review, by the various assignments of error, is: Under the evidence, was this an appropriate case, in furtherance of the ends of justice, to treat Mobile Roofing and Construction Company, Inc., a corporation, and Philip F. Cohen — rthe individual owning all its stock and assets — as identical ?

We find the evidence sufficient to support the decree to this effect, therefore affirm.

One of the most lucid expressions of the general rule pertaining to the disregard of corporate entity is found at 18 Am.Jur.2d, Corporations, § 14, p. 559:

“The doctrine that a corporation is a legal entity existing separate and apart from the persons composing it is a legal theory introduced for purposes of convenience and to subserve the ends of justice. The concept cannot, therefore, be extended to a point beyond its reason and policy, and when invoked in support of an end subversive of this policy, will be disregarded by the courts. Thus, in an appropriate case and in furtherance of the ends of justice, a cqrporation and the individual or individuals owning all its stock and assets will be treated as identical.”

In Alabama, as elsewhere, it is basic that a corporation is a distinct and separate entity from the individuals who compose it as stockholders or who manage it as directors or officers. Loper v. Gill, 282 Ala. 614, 213 So.2d 674 (1968). This is not a rule cast in concrete but rather this court has always looked to substance over form. In a proper case, when the corporate form is being used to evade personal responsibility this court has not been hesitant to disregard the corporate form and impose liability on the person controlling the corporation and subverting it to his personal use by the conduct of its business in a manner to make it merely his instrumentality. C. E. Development Co. v. Kitchens, 288 Ala. 660, 264 So.2d 510 (1972) and cases cited therein.

In addition to the facts summarized in this opinion there was abundant evidence from which the trial court could properly deduce that Mobile Roofing was a fictional shield employed by Cohen to avoid personal responsibility. Let us hasten to add that limitation of personal liability is one of the valid attributes of the corporate entity. The limitation of liability to the corporate assets must give way to imposition of personal liability where the actions of those in control of the corporation denigrate the purpose of limited liability, that purpose being to encourage investment of risk capital. The denigration of purpose by those in control is a persuasive factor when decision is made to impose personal liability in a proper and particular case. The decision is one made as an evi-dentiary matter on a case to case basis. For a full discussion of the general subject see Inadequte Capitalization As A Basis For Shareholder Liability: The California Approach And A Recommendation, 45 So. Calif.L.Rev. 823 (1972).

A homing signal guiding one to agreement with the trial court’s conclusion that Mobile Roofing was a device utilized by Cohen to evade personal liability was evidence that the impending Burrell judgment against the corporation caused him to dissolve” the corporation and assume personal responsibility for corporate liabilities, save and except the Burrell judgment.

This court pointed out in C. E. Development Co., supra, by reference to other authorities, including Dixie Coal Min. & Mfg. Co. v. Williams, 221 Ala. 331, 128 So. 799, that actual fraud is not necessarily a predicate for discarding the theory of separate corporate existence. It may also be discarded to prevent injustice or inequitable consequences. Again for an excellent general discussion, in this instance, of the purpose of disregard of corporate entity, see Fletcher, Cyc. Corp. (Perm.Ed.) Vol. 1, 1974 Revised Volume, § 41.2, p. 179.

Cohen argues that he did not consistently disregard the corporate entity and that imposition of personal liability should not be made as to a contract entered into with the-corporation during the years it validly existed as a corporation. This argument misconceives the issue. This is an action to make Cohen liable for a judgment against the corporation. It is not an action on the contract made with the corporation; judgment against it liquidated the damages recovered in this action. The complaint alleges and the answer admits that plaintiff first sought to collect the judgment from the corporation. Because of Cohen’s “dissolution” of the corporation, there were no assets from which the judgment could be collected. Cohen personally assumed liability for all corporate debts except the judgment. By the “dissolution” he sought to evade the judgment. These are precisely the type of acts which a court in the exercise of. its inherent equitable powers may view to differentiate the form from the substance.

Cohen also contends that in order to “pierce the corporate veil” (an overworked cliche) it must be shown that the corporation was formed for the purpose of perpetrating fraud upon its customers or creditors. The “dissolution” to avoid consequences of the judgment is only another evidentiary factor tending to the deduction that Mobile Roofing was the alter ego of Cohen. A corporation “dissolved” to evade creditors can enjoy no more standing as an entity separate and apart from its sole, stockholders and alter ego, who “dissolved” it for that purpose, than a corporation formed to accomplish such evasion. Dixie Coal Min. & Mfg. Co., supra. To permit either would eradicate the equitable principles which underlie the reasons for disregarding the separate corporate entity in the particular case under the particular circumstances, as we have already discussed.

The effect of our decision today will not subject Cohen to personal liability for any other than the Burrell judgment. Only the rights and liabilities of the parties in this case, in the circumstances of this case, may be adjudicated. Fletcher, Cyc. Corp., § 41.2, supra.

Affirmed.

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


author: SHORES, Justice. JONES, Justice

text:
    The EBONY CLUB, INC., et al. v. STATE of Alabama ex rel. Fred B. SIMPSON, District Attorney, Twenty-Third Judicial Circuit of Alabama.
    SC 1290.
    Supreme Court of Alabama.
    Sept. 11, 1975.
    Watson, Moore & Mason, Huntsville, for appellants.
    Fred B. Simpson, Dist. Atty., Twenty-Third Judicial Circuit, Huntsville, for ap-pellee.
   SHORES, Justice.

The facts were stipulated and are basically as follows:

The Ebony Club is a nonprofit corporation with its principal place of business in Triana, Alabama. It exists as a private club for the sale of alcoholic beverages, including liquor, wine, and beer. The City of Triana approved a liquor application and the ABC Board issued a liquor license to the club.

The City of Triana is located in Madison County and has a population of less than 135,000.

In December, 1974, the state brought a quo warranto proceeding in the Circuit Court of Madison County asking that court to enjoin The Ebony Club from operating a drinking establishment in the City of Triana.

The trial court found that the City of Triana had no authority to issue a license to The Ebony Club for the sale on premises of alcoholic beverages; that the ABC Board had no authority under the laws of the State of Alabama to issue a license for the sale of such beverages; and permanently enjoined the club from operating a drinking establishment in Triana.

The appeal is from this judgment. It is affirmed.

The 1971 legislature passed the following act, which relates to Madison County:

“Act No. 2490
“An Act
“Relating to counties having populations of not less than 175,000 nor more than 300,000; further regulating the sale of alcoholic beverages in such counties and certain municipalities therein.
“Be It Enacted by the Legislature of Alabama :
“Section 1. This Act shall apply in counties having populations of not less than 175,000 nor more than 300,000 according to the last or any subsequent federal decennial census.
“Section 2. It is unlawful for any person, firm, corporation, or association to sell or offer to sell any spirituous or vinous liquor in any county subject to the provisions of this act except at Alabama Alcoholic Beverage Control Board liquor stores, or to sell or to offer to sell within any such county any malt or brewed beverages except within the police jurisdiction of an incorporated municipality thereof; provided, however, that in any county subject to the provisions of this act, any wholesaler, distributor or jobber, or retailer licensed to sell malt or brewed beverages shall also be authorized to sell draft beer provided said draft beer shall not be held for sale or sold in containers exceeding a maximum capacity of 288 ounces. However, the council or commission of any municipality within such counties having a population of not less than 135,000 nor more than 185,000 according to the last or any subsequent federal decennial census may license and regulate the sale of spirituous or vinous liquors and malt or brewed beverages in private clubs within the City limits of any such city, and may adopt and enforce such ordinances as may be considered necessary for such purpose. As used in this Act, the term ‘club’ shall have the meaning ascribed to such term in Alabama Code 1940, Title 29, Section 1(f).
“Section 3. All laws and parts of laws in conflict with this Act are repealed.
“Section 4. The provisions of this Act are severable. If any part of the Act is declared invalid or unconstitutional, such declaration shall not affect the part which remains.
“Section 5. This Act shall become effective immediately upon its passage and approval by the Governor, or upon its otherwise becoming a law.
“This Act became a law on October 13, 1971 under 124 [sic, 125] Section of the Constitution without approval by the Governor.”

The 1973 Legislature passed Act No. 998, also relating to Madison County, • which provides:

“An Act
“Relating to Madison County and the City of Huntsville; further regulating the sale of alcoholic beverages therein.
“Be It Enacted by the Legislature of Alabama :
“Section 1. In Madison County it is unlawful for any person, firm; corporation or association to sell or offer to sell any spirituous or vinous liquor except at Alabama Alcoholic Beverage Control Board liquor stores, or to sell or to offer to sell within said county any malt or brewed beverages except within the police jurisdiction of an incorporated municipality thereof; provided however, any wholesaler, distributor, jobber or retailer licensed to sell malt or brewed beverages shall also be authorized to sell draft beer provided said draft beer shall not be held for sale or sold in containers exceeding a maximum capacity of 288 ounces. However, the council or commission of the City of Huntsville may license and regulate the sale of spirituous or vinous liquors and malt or brewed beverages in private clubs within the city limits, and may adopt and enforce such ordinances as may be considered necessary for such purposes. As used in this Act, the term ‘club’ shall have the meaning ascribed to such term in Alabama Code 1940, Title 29, Section 1(f).
“Section 2. All laws or parts of laws which conflict with this Act are hereby repealed.
“Section 3. The provisions of this Act are severable. If any part of the Act is declared invalid or unconstitutional, such declaration shall not affect the part which remains.
“Section 4. This Act shall become effective immediately upon its passage and approval by the Governor, or upon its otherwise becoming a law.
“This Act became a law under Section 125 of the Constitution on September 6, 1973 without approval by the Governor.”

Appellant contends that these acts violate Art. 1, § 22 (relating to laws impairing the obligation of contracts and to laws granting special privileges or immunities) ; Art. 4, § 103 (prohibiting monopolies); Art. 4, § 104 (prohibiting any special, private or local law in specified cases) ; and Art. 4, § 105 (prohibiting special, private or local laws); Constitution of Alabama 1901.

The 1971 Act, based upon a population classification, was a general act. We perceive no need to consider the objections made by appellant as to the validity of this act, since the City of Triana is also prohibited from authorizing or approving a liquor license under the 1973 Act, which is a local act. It is true that § 104 of the Constitution does prohibit the legislature from passing a special, private or local law in thirty-one enumerated cases. However, that section of the Constitution also includes the following language:

“ . . . provided that nothing in this section or article shall affect the right of the legislature to enact local laws regulating or prohibiting the liquor traffic; but no such local law shall be enacted unless notice shall have been given as required in section 106 of this Constitution.”

It is conceded that § 106 was complied with in so far as Act No. 998 is concerned.

The legislative power to regulate the sale of liquor is absolute. The legislature may regulate it as it sees fit, or prohibit it entirely. Fulton v. State, 171 Ala. 572, 54 So. 688 (1911); Dowda v. State, 203 Ala. 441, 83 So. 324 (1919); Armstrong v. State, 248 Ala. 124, 26 So.2d 874 (1946).

In Paulson’s Steerhead Restaurant, Inc. v. Morgan, 273 Ala. 235, 239, 139 So.2d 330, 333 (1962), this court quoted, with approval, the following:

“ ‘ * * * There is no inherent right in a citizen to thus sell intoxicating liquors by retail. It is not a privilege of a citizen of the state or of a citizen of the United States. As it is a business attended with danger to the community, it may, as already said, be entirely prohibited, or be permitted under such conditions as will limit to the utmost its evils. The manner and extent of regulation rest in the discretion of the governing authority. That authority may vest in such officers as it may deem proper the power of passing upon applications for permission to carry it on, and to issue licenses for that purpose. It is a matter of legislative will only. As in many other cases, the officers may not always exercise the power conferred upon them with wisdom or justice to the parties affected. But that is a matter which does ■ not affect the authority of the state, or one which can be brought under the cognizance of the courts of the United States.’ Crowley v. Christensen, 137 U. S. 86, 91, 92, 11 S.Ct. 13, 15, 34 L.Ed. 620.”

Appellant contends that the state should be estopped to deny it a license, since it has been operating under one issued by the City of Triana for several years. We do not agree. The legislature has the right under the State Constitution to change the law with regard to regulating intoxicating liquors at any time. In F. W. Cook Brewing Co. v. Garber, 168 F. 942, 948 (M.D.Ala., N.D. 1909), the following appears:

“ ■ . . So long as the state law recognizes the right to make and vend intoxicating liquors, that occupation is under the protection of the law, but even then it is at most mere license to carry on an occupation, which may be revoked at the arbitrary will of the Legislature at any time. If the Legislature chooses to outlaw the occupation, there is no right of property in the business in which the owner is protected by the Constitution and laws either of the state or of the United States. . . . ”

We have considered other assignments of error and find no basis for reversal. The judgment appealed from is, therefore, affirmed.

Affirmed.

HEFLIN, C. J., and MERRILL and MADDOX, JJ., concur.

JONES, J., concurs specially.

JONES, Justice

(concurring specially):

Although I concur in the opinion, the name of the club here enjoined suggests to me discriminatory application of the statute involved. This issue, however, is not raised or developed by the record.


author: SHORES, Justice.

text:
    The ROD, GUN AND SKI CLUB, INC. v. STATE of Alabama ex rel. Fred B. SIMPSON, District Attorney, Twenty-Third Judicial Circuit of Alabama.
    SC 1291.
    Supreme Court of Alabama.
    Sept. 11, 1975.
    Watson, Moore & Mason, Huntsville, for appellant.
    Fred B. Simpson, Dist. Atty. 23rd Judicial Circuit, Huntsville, for appellee.
   SHORES, Justice.

The issues in this case are identical to those raised in S.C. 1290 — The Ebony Club, Inc., et al. v. State of Alabama ex rel. Fred B. Simpson, District Attorney, Twenty-Third Judicial Circuit of Alabama, 294 Ala.-, 318 So.2d 282 (Ms.), this day decided. The judgment appealed from is affirmed under the authority contained in that opinion.

Affirmed.

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


author: HEFLIN, Chief Justice.

text:
    Lynn BLACKMON v. CHRYSLER MOTORS CORPORATION, INC., a corporation, and Beltline Chrysler Plymouth, Inc., a corporation.
    SC 984.
    Supreme Court of Alabama.
    July 31, 1975.
    McDermott, Deas & Coleman, Mobile, and Owen & Ball, Bay Minette, for appellant.

      W. Ramsey McKinney, Jr., Mobile, for appellee, Chrysler Motors Corp.
   HEFLIN, Chief Justice.

The plaintiff-appellant Lynn Blackmon (plaintiff) appeals from a judgment of the trial court dismissing his action under Rule 12(b)(6) motions to dismiss filed by the defendants-appellees Chrysler Motors Corporation and Beltline Chrysler-Plymouth, Inc. That judgment of dismissal is affirmed.

This case arose from the fact that the defendant Chrysler Motors Corporation on June 23, 1971, ceased importation into this country of Simca automobiles. Simcas were made in France by a Chrysler subsidiary and for several years had been imported by Chrysler and sold by Chrysler dealers, such as the defendant Beltline Chrysler-Plymouth.

The plaintiff states in his complaint that on or about November 17, 1971, without knowledge that Chrysler Corporation had ceased importing Simcas, he purchased a new 1971 model Simca from defendant Beltline Chrysler-Plymouth. Plaintiff further states that both defendants were at the time of his purchase aware that Simcas were no longer imported and that the number of spare parts being imported had been substantially reduced. Plaintiff also alleged that had he known these facts he would not have paid the price he did pay for the 1971 Simca.

As finally amended, the complaint contains three counts, all based on the contentions that the two defendants fraudulently concealed this information from him.

The original complaint and both amended complaints showed on the face that the allegedly fraudulent concealment occurred on November 17, 1971. The original complaint in this case was filed on December 13, 1972, almost 13 months later. This state has a one-year statute of limitations on actions for fraud, Title 7, Section 26, Alabama Code of 1940, as amended (Recompiled 1958).

The plaintiff insists on this appeal that his action for fraud comes within the “saving clause” contained in Title 7, Section 42, Alabama Code of 1940, as amended (Recompiled 1958). That section provides:

“In actions seeking relief on the ground of fraud where the statute has created a bar, the cause of action must not be considered as having occurred until the discovery by the aggrieved party of the fact constituting the fraud, after which he must have one year within which to prosecute his suit.”

The plaintiff contends on appeal that he only discovered the fraud in April 1972, when he had to wait an excessively long time for a spare part. However, nowhere in any of the pleadings filed in the trial court does the plaintiff mention that he brought suit within a year of discovering the fraud.

The original complaint was filed December 13, 1972, and contained two counts. After Chrysler Corporation’s demurrers were sustained as to both counts, raising among other things the statute of limitations, and after the new Alabama Rules of Civil Procedure became effective, plaintiff was granted leave to amend on January 29, 1974. Plaintiff amended his complaint to add ten more counts each styled as a cause of action and each again showing on its face that more than a year had expired between the time of the sale and the time of the suit. No attempt was made in this amended complaint to show that the plaintiff came within the “saving clause” of Title 7, Section 42; no mention was made of his discovery of the fraud.

After these amendments, defendants Chrysler Corporation and Beltline Chrysler-Plymouth moved under Rule 12, ARCP, to dismiss the amended complaint for failure to state a claim upon which relief could be granted. Both raised among other things the ground that “It affirmatively appears that the action is barred by the statute of limitations of one year in that the cause of action sought to be asserted affirmatively appears to have accrued on November 17, 1971, more than one year prior to the commencement of the action.”

Both motions to dismiss were granted as to causes of action four through twelve but denied as to cause of action three. Both defendants then answered the remaining cause of action, again raising the affirmative defense of the statute of limitations.

Then the plaintiff, on April 12, 1974, received the court’s permission to amend his complaint. The amended complaint deleted the third cause of action and amended the sixth, ninth, and twelfth causes of action. In this final form, each cause of action stated in the complaint again showed on its face that more than one year had passed between the sale of the car (and the allegedly fraudulent concealment) and the bringing of suit. Again, the newly amended complaint showed nothing to indicate that the plaintiff could, or sought to, fit his case within the provisions of the “saving clause” of Title 7, Section 42.

Defendant Chrysler Corporation on May 10, 1974, and defendant Beltline Chrysler-Plymouth on May 21, 1974, filed answers to the amended complaint, raising the affirmative defense of the statute of limitations, and on those dates filed motions to dismiss, which also raised the ground of the statute of limitations. On May 24, 1974, the trial court held a hearing and granted both motions to dismiss. There is nothing in the record showing an attempt or desire on the part of the plaintiff to amend his complaint, or to do anything else, so as to show that his case fit within the “saving clause” of Title 7, Section 42.

This case thus presents a problem similar to those answered by this court in McGruder v. B & L Construction Company, Inc., 293 Ala. 354, 303 So.2d 103 (1974), and in Board of School Commissioners of Mobile County v. Reynolds, 294 Ala. 21, 310 So.2d 876 (1975).

In McGruder the following was quoted from Wright & Miller, 5 Federal Practice and Procedure: Civil § 1357, p. 608:

“A complaint showing that the statute of limitations has run on the claim is the most common situation in which the affirmative defense appears on the face of the pleading. Since Rule 9(f) makes averments of time material, the inclusion of dates in the complaint indicating that the action is untimely renders it subject to dismissal for failure to state a claim * * *»

McGruder also contains these words:

“We are not to be understood as holding that every case should be dismissed on motion when the complaint shows on its face that the statute of limitations has run. There are several exceptions in our law. Two examples are Tit. 7, § 34 — defendant absent from the state, and § 36 — infants, incompetents and prisoners. The exceptions do not apply here because there was a hearing on the motion to dismiss and the record shows no request, attempt or desire of the plaintiff to amend.”

This court recognized in McGruder that “a motion for a summary judgment might, in some cases, be the safer method.” While both defendants in the present case had also made motions for summary judgment, it cannot be said that the trial court erred in not ruling on them but instead dismissing the complaint, in view of the plaintiff’s numerous opportunities to claim the exception of Title 7, Section 42.

In Board of School Commissioners of Mobile County, supra, it was explained why the rule applied in McGruder “is not as restrictive as it might first appear, nor * * * contra to the liberality to be accorded the Alabama Rules of Civil Procedure.”

The dismissal in this case is further supported by dicta appearing in Associates Financial Services Company, Inc. v. First National Bank of Mobile, 292 Ala. 237, 292 So.2d 112 (1974). In that case this court, after answering a related problem arising under the old rules, stated:

“We feel constrained, however, to comment on the prospective application of the Alabama Rules of Civil Procedure to the facts at hand. Rule 9(b) requires :
‘In all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity.’
“Rule 8(c) requires that the statute of limitations be affirmatively set forth. Since the rules do not contemplate formal responses to affirmative defenses, we are of the conclusion that a plaintiff in a fraud action seeking to invoke the ‘saving’ clause (permitting the filing of a suit within one year after the discovery) in order to withstand a motion to dismiss, should show the time and the circumstances of the discovery of the alleged fraud. This observation is not to be construed as in any manner obviating the operative effect of Rule 15(b) relating to amending the pleadings to conform to the evidence.”

The McGruder and Board of School Commissioners of Mobile County cases make it clear that a complaint showing on its face that the statute of limitations has run should not be dismissed without the plaintiff’s being given a chance to amend so as to claim an exception. Here, the plaintiff had several opportunities to claim the exception and did not do so.

It should be noted that the holding is different in this case than it would have been before the adoption of the Alabama Rules of Civil Procedure, for at common law even where a complaint showed on its face that the limitation prescribed by the statute had expired, a demurrer would not lie since the plaintiff would have been prevented from pleading the exception which would have prevented the bar. Curry v. Southern Ry. Co., 148 Ala. 57, 42 So. 447; Tutwiler Coal, Coke & Iron Co. v. Wheeler, 149 Ala. 354, 43 So. 15.

The judgment of the trial court is due to be

Affirmed.

MERRILL, MADDOX, JONES and SHORES, JJ., concur.


text:
    M. C. HOLCOMBE, Jr. v. Joan WHITAKER.
    SC 909.
    Supreme Court of Alabama.
    July 31, 1975.
    Rehearing Denied Aug. 28, 1975.

      Roderick Beddow, Jr., Birmingham, for appellant.
    Rives, Peterson, Pettus, Conway & Burge, Birmingham, for appellee and cross-appellant.
   SHORES, Justice.

This is an appeal from a judgment which was rendered on a jury verdict in favor of the plaintiff in the amount of $35,000. The defendant filed a motion for judgment notwithstanding the verdict or a new trial. The trial court conditioned its overruling of the motion for new trial by requiring a remittitur from the plaintiff in the amount of $15,000. The remittitur was filed and the motion for new trial overruled. The defendant appealed from the original judgment and the plaintiff filed a cross-appeal, assigning as error the condition of a remittitur for the overruling of defendant’s motion for new trial.

The plaintiff, Joan Whitaker, met the defendant, M. C. Holcombe, Jr., a medical doctor, in March or April, 1970. Shortly thereafter the two began seeing each other socially; and about a month later the defendant moved into the plaintiff’s apartment, where they lived together for sometime. It was the plaintiff’s testimony that the defendant told her he was a divorced man. Sometime after the defendant moved into the plaintiff’s apartment, he invited her to accompany him to a medical convention in San Francisco. She did so, and testified that she was asked by the defendant to pose as Mrs. Holcombe at that meeting. Following the convention, the two flew to Las Vegas, Nevada, and were married there. They left Las Vegas and went to New Orleans for a “honeymoon” and finally returned to Birmingham, where they lived together as husband and wife for approximately a month. At about that time, Dr. Holcombe began seeing a woman he had been dating prior to his marriage to the plaintiff. He had previously told Miss Whitaker that he wanted to tell this woman personally about his having married. When the plaintiff objected to his resuming his relationship with this woman, he then told her that he was still married to his first wife. She then asked him to either have the marriage with her annulled or get a divorce from his first wife and marry her legally. Her testimony was that the defendant said “he wasn’t going to do either one.”

To say the least, the relationship between Miss Whitaker and Dr. Holcombe began to disintegrate from this point forward. He moved out of the apartment, but came back from time to time, staying for as long as a week on at least one occasion. The plaintiff continued to ask him to get an annulment or to get a divorce from his wife and legally marry her. She went to the apartment occupied by the woman the defendant was then seeing again and found him there. Again, she had a conversation with him about getting an annulment. On that occasion he said “If you take me to court, I will kill you.”

From that point on, the plaintiff testified that she began receiving telephone calls from Dr. Holcombe and from his lady friend all hours of the night. She also received anonymous calls.

There was other evidence to the effect that, after Dr. Holcombe threatened the plaintiff the first time, she moved to another apartment and got an unlisted telephone number. For a period of time the calls from Dr. Holcombe and his friend stopped. Then her apartment was broken into and some of her clothes were soaked with what later appeared to be iodine. Thereafter, the calls resumed. After the break-in, she had new locks put on the door and the windows were nailed closed. She also had friends spend the night with her thereafter.

The plaintiff filed the instant suit in September, 1971. In October of that year, Dr. Holcombe went to her apartment. When she refused to let him in, he began to beat on the door, tried to get in, and again said “If you take me to court, I will kill you.”

The complaint charges the defendant with fraud and misrepresentation in that he had fraudulently misrepresented to the plaintiff that he was unmarried and that, relying on such misrepresentation, she married him. The averments are that as a proximate consequence of the fraud, the plaintiff was injured and damaged as follows : “She suffered grievous mental anguish and humiliation, her nervous system and emotional system was permanently injured . . .” A second count claimed damages for assault.

Although the defendant assigns some sixty-odd grounds for reversal, he argues the following issues only :

The court should have granted his motion for a directed verdict on the fraud count, because he contends the plaintiff failed to offer any evidence that she had suffered any damage. It is the defendant’s contention that proof of actual damage was necessary to the plaintiff’s cause of action; that the plaintiff failed to prove such damage; and thus the fraud count should not have been submitted to the jury.

.While this is the first case to come before this court seeking damages for fraudulently inducing one into an illegal or void marriage, we have long recognized, as actionable, misrepresentations made with intent to deceive, relied on by and resulting in damages to the injured party. Thus, we have no hesitancy in joining a number of states in expressly holding that when one wrongfully induces another into a marriage, by misrepresenting or concealing facts which render the marriage void, the person so deceived is entitled to an action for damages. Morris v. Mac-Nab, 25 N.J. 271, 135 A.2d 657 (1957), the subject of an annotation found in 72 A.L. R.2d 956. See also Restatement of the Law of Torts, Vol. III, § 555 (1938). The defendant, however, argues that no recovery in such a case can be had for mental suffering alone but, in addition, there must be damages to the person, reputation or estate. In answering that same contention made by the defendant in Morris v. Mac-Nab, supra, the Supreme Court of New Jersey said:

. . we reject the defendant’s first point and come now to his second point in which he contends that the plaintiff’s first count, which sought recovery for shame, humiliation, and mental anguish, should have been dismissed by the trial court. The defendant cites authorities which indicate that, absent physical injuries, damages for shame, humiliation, and mental anguish are not recoverable where the actor is simply negligent. See Prosser, supra [Torts, 2d Ed. 1955], at p. 180; 2 Harper & James, Torts, 1031 (1956). But the authorities all recognize that where the wrong is willful rather than negligent, recovery may be had for the ordinary, natural, and proximate consequences though they consist of shame, humiliation, and mental anguish. . . . Prosser, supra, at p. 38. Here the defendant’s conduct was not merely negligent, but was willfully and maliciously wrongful. It was bound to result in shame, humiliation,- and mental anguish for the plaintiff, and when such result did ensue the plaintiff became entitled not only to compensatory but also to punitive damages. . . .” (25 N.J. at 280, 135 A.2d at 662)

We agree with this statement arid find it consistent with the law in Alabama. See Alabama Great Southern R. Co. v. Sellers, 93 Ala. 9, 9 So. 375 (1890).

The defendant also argues in connection with the issue of damage that the trial court erred in refusing evidence that, prior to this marriage, the plaintiff suffered from veneral disease, had an abortion, and had affairs with many other men. Of course, the defendant must face the general rule that prohibits evidence of general character as primary evidence. See, e. g., Phillips v. Ashworth, 220 Ala. 237, 124 So. 519 (1929). Yet, the defendant cites us to an exception to this rule, that is, if character or reputation becomes a matter in issue, evidence with reference to such a party’s reputation or character is admissible. While this is a correct statement of the law, we do not find that the plaintiff’s character was placed in issue in this case. She did not sue the defendant for fraudulently inducing her to have sexual relations with him; she sued him for fraudulently inducing her to enter into a void marriage with him. In Lester v. Gay, 217 Ala. 585, 587, 117 So. 211, 213 (1928), which, unlike this case, involved a claim by the plaintiff against the defendant doctor for an alleged indecent assault, we said:

“. . . the reputation of the female plaintiff for chastity cannot be put in issue by the defendant, nor can specific acts of impropriety be shown in mitigation . . . ”

The plaintiff’s reputation or character was not in issue here; nor did she open the door for the defendant to attack her character. Therefore, such evidence was properly excluded.

The defendant next argues that the court erred in refusing to give a requested charge which sought to instruct the jury that intent to deceive was a necessary element in the plaintiff’s cause of action. There was no error in refusing this charge, since the trial court adequately instructed the jury in its oral charge on this issue. In its charge to the jury, the court said:

“Now, of course, a fraud and a thing of that sort has to do with knowingly saying something that is untrue. . . .
“ . . . But if he knew he was married, and if he intentionally told her that in order to do something or the other that she would not otherwise do, and did induce her to do that, that would be what we would call fraud .
“And I will say this with reference to Count Number One, which deals with that sort of thing, that if she, from any source, knew before she married him that he was married and not divorced, if she knew that, then, of course . she could not recover from him. ...”

There is no error to reverse on this ground. Boise Cascade Corp. v. Lee, 291 Ala. 666, 286 So.2d 836 (1973).

The next issue argued by defendant concerns the assault count. The plaintiff claimed that the defendant committed an assault when in June of 1971, she went to see him and tried to get him to get an annulment, he said “If you take me to court, I will kill you.”; and again in October, 1971, after she had filed the instant suit on September 29, 1971, when he went to her apartment and beat on the door, tried to pry it open, and said again, “If you take me to court, I will kill you.” (The complaint was amended to include this act.) The defendant claims this in no way can constitute an assault, because it was merely a conditional threat of violence and because no overt act was involved. In order to safeguard freedom from apprehension of harm or offensive conduct, the law provides an individual with a remedy at law. See Prosser, Law of Torts, page 37 (4th Ed. 1971).

An assault consists of “ . . . an intentional, unlawful, offer to touch the person of another in a rude or angry manner under such circumstances as to create in the mind of the party alleging the assault a well-founded fear of an imminent battery, coupled with the apparent present ability to effectuate the attempt, if not prevented.” Western Union Telegraph Co. v. Hill, 25 Ala.App. 540, 542, 150 So. 709, 710 (1933).

While words standing alone cannot constitute an assault, they may give meaning to an act and both, taken together, may constitute an assault. Prosser, supra (2nd Ed. 1955). In addition, words may negative an act in a manner that apprehension in such a case would be unreasonable. “On the other hand, a show of force accompanied by an unlawful or unjustifiable demand, compliance with which will avert the threatened battery, is an assault.” 1 Harper & James, The Law of Torts, page 223 (1956). “ . . . the defendant is not free to compel the plaintiff to buy his safety by compliance with a condition which there is no legal right to impose.” Prosser, supra, page 40 (4th Ed. 1971). It is obvious that the defendant in the instant case had no right to impose the condition he did on the plaintiff; and we cannot say that this condition explained away his threat to harm her.

The defendant says his conduct cannot constitute an assault because there was no overt action taken by him. The evidence from the plaintiff was that the defendant was pounding on her door making every effort to get into the apartment, and threatening to kill her if she persisted in “taking him to court.” We cannot say, as a matter of law, that this was not sufficient to arouse an apprehension of harm or offensive conduct. We think it was a jury question, as was the question of whether the defendant had the apparent ability to effectuate the threatened act.

The defendant next complains that the trial court erred in allowing evidence of various events from the- time of the break between the plaintiff and defendant. The plaintiff was allowed to testify that, from the time she was threatened by Dr. Hol-combe the first time and continuing for several months, she received frequent anonymous calls late at night, that the caller only made breathing sounds, and that sometimes the caller would simply hang up when she answered the telephone. She moved to another apartment and got an unlisted telephone number. The calls stopped until her apartment was broken into, at which time iodine was poured over her clothes. Thereafter the calls resumed.

The fact that the calls were made was admitted into evidence, not the content of such calls. Generally, in order to introduce evidence of a telephone conversation, the identity of the alleged speaker must be satisfactorily established. Dentman v. State, 267 Ala. 123, 99 So.2d 50 (1957). If, however, it is the fact that a call was made that is introduced, the test is one of relevancy, i. e., is it material to some issue in the case. See generally Annot. 13 A.L.R.2d 1409.

Under the circumstances of this case, we cannot reverse the trial judge for allowing this testimony. When Dr. Hol-combe left the home of the plaintiff and returned to his former “girl friend,” the plaintiff protested. It was her testimony, and apparently the jury believed it, that she thought he was her husband. When she objected, his answer was that he was already married. When she then be-seeched him to either get a divorce and marry her legally or get their marriage annulled, she claims he said he was not going to do either, and that if she attempted to do anything about it he would kill her. From then on, the jury could have found that Dr. Holcombe and the lady with whom he was then living began a program of harrassment, intimidation, and threats, which could have been construed to kindle fear in the plaintiff and to achieve what apparently the doctor wanted — to keep her from doing anything about the void marriage, which he, according to the jury’s verdict, had lured her into. According to the testimony offered on behalf of the plaintiff, the doctor succeeded in his efforts to frighten the plaintiff. She was fearful enough to ask friends to stay with her at night; never left the apartment alone after the threats on her life; had her brother-in-law nail the windows closed after the break-in of her apartment; and told one of her friends that she was afraid there might be poison in her coffee. We believe this testimony was relevant under the circumstances of this case. The defendant threatened to kill the plaintiff if she did something she had a legal right to do. We think the evidence of what occurred subsequent to his threats and emanating from them was relevant to the issues being tried.

We find no error to reverse, and turn now to the plaintiff’s cross-appeal.

She complains of the trial court’s condition of remittitur for the overruling of the defendant’s motion for new trial. There is no question that the trial judge cannot substitute his own judgment for that of the jury in determining whether to order a remittitur. Central of Georgia Ry. Co. v. Steed, 287 Ala. 64, 248 So.2d 110 (1971). To permit such a procedure would deny the parties their right to a jury trial. In addition, “ . . . the authority vested in the courts to disturb the verdict of the jury on the ground of excessive damages is one which should be exercised with great caution . . . ” Airheart v. Green, 267 Ala. 689, 693, 104 So.2d 687, 690 (1958). Yet this court has recognized that where the trial court has ordered a re-mittitur and refused to grant a new trial, a favorable presumption of correctness of that action is accorded. Birmingham Electric Co. v. Thompson, 251 Ala. 465, 37 So.2d 633 (1948); Southern Cement Co. v. Patterson, 271 Ala. 128, 122 So.2d 386 (1960). Moreover, “Remittiturs are favored in proper cases for the promotion of justice and the ending of litigation.” Southern Cement Co. v. Patterson, supra, at page 135, 122 So.2d at page 392. In reviewing such action, this court must be aware that the trial court was in a position to observe all of the witnesses who testified and other incidents which are not reflected in the transcript. We do not find error in this action. Airheart v. Green, supra.

The judgment appealed from is, therefore, affirmed.

Affirmed.

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